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August 2012 Archives

Robert v. Bd. of County Comm'ers of Brown Co., No. 11-3092 (10th Cir. Aug. 29, 2012)

The Tenth Circuit becomes the latest U.S. court of appeals to address the controversy of leave-time as a "reasonable accommodation" under the ADA. The court, in line with There circuits, recognizes the concept but holds that such leaves must be of a limited, definite duration.

Feldman v. Olin Corporation, No. 10-3955 (7th Cir. Aug. 27, 2012)

In a fact scenario all-too-common in disabilities discrimination cases, the employer here accommodated an employee for a number of years, but then retrenched. The Seventh Circuit reverses summary judgment in an ADA case in which an employer allegedly failed to accommodate an employee with a sleeping disability. The panel holds, among There things, that the record presents a genuine issue of material fact about whether the employer made overtime an essential function of the job. 

Kroll v. White Lake Ambulance, No. 10-2348 (6th Cir. Aug. 22, 2012)

The Sixth Circuit holds in a 2-1 panel decision that an employer's demand that an employee "receive psychological counseling" and "see a mental health counselor as a condition to keeping her employment" may constitute a prohibited "medical examination" under 42 U.S.C. § 12112(d)(4)(A). The unanimous panel also holds that the employee need not actually submit to the demand to have standing to challenge it.

Choice-of-Venue Clause Bites U.S. Expatriate Executive

In a decision dated August 10, 2012, a federal court in Manhattan ordered in Martinez v. Bloomberg LP, No. 11 Civ. 7514 (JMF) (S.D.N.Y. Aug. 10, 2012) that an American executive working overseas for Bloomberg LP was obliged to file his employment-discrimination case under British law in a U.K. court. Such cases point to a need for those choosing or assigned to work overseas to obtaining a lawyer's advice before signing on the dotted line.

Griffin v. Finkbeiner, No. 10-3659 (6th Cir. Aug. 20, 2012)

The Sixth Circuit returns a Title VII case for trial, concerning claims that the City of Toledo discriminated against an African-American manager in work assignments, pay and evaluations, and also retaliated against him because he assisted another employee in complaining to the city about race discrimination. The panel holds that the district court applied too strict a standard at the pre-trial stage of the case, demanding proof that the "real" reason for the adverse actions was race discrimination. It also holds that at trial on the retaliation claim, the district court erred by excluding evidence of "other acts" targeting co-workers for the same activities.

Levin v. Madigan, No. 11-2820 (7th Cir. Aug. 17, 2012)

Several federal circuits have held that state (and other public) employees cannot seek relief for age discrimination under 42 U.S.C. § 1983, because the ADEA supposedly provides the exclusive remedy for such claims. Yet the Seventh Circuit steps surprisingly out-of-line, and holds that § 1983 claims may be brought to vindicate the federal constitutional right of Equal Protection against arbitrary age-based classifications, independently of the ADEA. It further holds that state agency heads cannot necessarily hide behind qualified immunity to avoid a lawsuit.

Bucalo v. Shelter Island Union Free Sch. Dist., No. 10-1516 (2d Cir. Aug. 10, 2012)

Here's a case that addresses the vexing question, "What happens when a key fact witness in a Title VII/ADEA trial - the defendant's decision maker - dies before he/she can offer testimony?"  The Second Circuit's answer is that the employer in those circumstances can rely on circumstantial evidence, here a folder of resumes that the decision maker reviewed when making the hiring decision at issue. So holding, the court affirms a jury verdict for the school district, allowing the paperwork to stand in the place of live testimony about the reasons why the plaintiff was not hired.

Ondricko v. MGM Grand Detroit, LLC, No. 10-2133 (6th Cir. Aug. 8, 2012); Rosebrough v. Buckeye Valley High school, No. 10-4057 (6th Cir. Aug. 8, 2012)

The same panel on the Sixth Circuit publishes two opinions on the same day reversing summary judgment. In the first, a gaming floor supervisor revives a case against a casino for selectively enforcing a workrule about bad deals, owing (allegedly) to race and sex. In the second, the court reminds the lower court that the Americans with Disabilities Act is special because - in contrast to There statutes - it specifically protects against discrimination in training.

Richter v. Advance Auto Parts, No. 11-2570 (8th Cir. Aug. 1, 2012)

Employees and practitioners in the Eighth Circuit be warned - Title VII claims of post-charge-filing retaliation require the filing of a fresh (or amended) charge with the EEOC. The court decides the issue in a 2-1 decision which widens the circuit split on this issue in the wake of Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

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