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December 2012 Archives

Rivera v. Rochester Genesee Regional Transportation Authority, No. 11-762 (2d Cir. Dec. 21, 2012)

It was a long-time commonplace in federal case law that a mere threat to terminate an employee was not a "materially adverse action" under employment discrimination law. But at least under the anti-retaliation provision of Title VII, the Second Circuit seems to have recognized that such a threat may be actionable in light of Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The court also holds that a hostile response to an harassment complaint can itself constitute retaliation.

Kragor v. Takeda Pharmaceuticals, No. 11-16052 (11th Cir. Dec. 19, 2012)

In this ADEA case, the Eleventh Circuit affirms the simple truth under employment discrimination law that when the decision-maker later (reportedly) disavows the very reasons that the employer gives for firing an employee, this circumstance presents a witness credibility issue that cannot be decided on paper alone, and only a jury can properly resolve.

Kifafi v. Hilton Hotels Retirement Plan, No. 11-7113 (D.C. Cir. Dec. 14, 2012)

An important part of the Employee Retirement Income Security Act of 1974 was reforming the practice of "backloading" pensions - in other words, having the lion's share of contributions come at the end of the employee's career, resulting in smaller retirement payouts. This D.C. Circuit decision, affirming a ruling that the Hilton Hotel pension plan violated the anti-backloading rule, furnishes an important lesson to all persons enrolled in such "defined benefit" plan: keep an eye on your benefit statements.

Watts v. UPS, No. 11-3480 (6th Cir. Dec. 12, 2012)

Clearing up some confusion among the lower federal courts, the Sixth Circuit confirms that the Labor-Management Relations Act (LMRA) § 301 does not supersede an employee's federal statutory right to file a civil action to remedy a violation of her rights under the ADA.

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