U.S. Supreme Court Punts on "Me Too" Evidence in Discrimination Cases

Mendelsohn sued Sprint for age discrimination. At trial, she attempted to admit evidence that other Sprint employees were subjected to age discrimination, even though by different supervisors at different times, and otherwise unrelated to the discrimination she experienced. This is known as "me too" evidence. The district court held the evidence was irrelevant and inadmissible. The Tenth Circuit Court of Appeals reversed, believing the district court adopted a "per se" rule excluding "me too" evidence based on Tenth Circuit precedent.
The U.S. Supreme Court, in a unanimous ruling, reversed the Tenth Circuit. However, the Court did not analyze the extent to which "me too" evidence is admissible. Rather, this case was decided as a matter of civil procedure / evidence law. On the merits, the court said that "me too" evidence is neither per se admissible or inadmissible, and the decision to admit it is within the trial court's discretion based on factors normally applicable to the relevance analysis. No guidance on this issue at all.
The case is Sprint / United Mgmt. Co. v. Mendelsohn. The opinion is here.

U.S. Supreme Court: ERISA Actions Against Fiduciaries

There is nothing like an ERISA case to stimulate debate and discussion at the water coolers of all employment lawyers' firms. OK, I'm kidding. I think. But from what I'm reading, this is an important ERISA case that may result in more claims.

The Supreme Court decided that individual members of a defined contribution plan may sue plan fiduciaries for misconduct that depletes the value of the individual account within the plan. The case is Larue v. DeWolff et al. and the opinion is here.

U.S. Supremes: Arbitrate Claims Under Labor Commissioner's Jurisdiction

The California Labor Commissioner has primary jurisdiction over disputes under California's Talent Agencies Act. (Lab. Code section 1700 et seq.). But some television star named "Judge Alex" (not the Chief Judge of the Ninth Circuit) Ferrer, and his entertainment lawyer, Preston, agreed in their contract to arbitrate any disputes between them. When Preston attempted to collect fees he alleged were due him, the Labor Commissioner took the claim and refused to stay it pending arbitration.

Judge Alex sought an order compelling arbitration, which was denied. The California Court of Appeal held that Federal Arbitration Act did not trump the Labor Commissioner's jurisdiction, because the FAA does not apply to administrative agency jurisdiction.

The U.S. Supreme Court disagreed, and held that an arbitrator gets to decide whether Preston's agreement with Ferrer was enforceable under the Talent Agencies Act. In so holding, the Court clarified that when a party challenges an entire contract is unenforceable, not just the arbitration clause, the arbitrator decides that issue, even if the alternative forum is an administrative agency under state law.

The case is Preston v. Ferrer. The opinion is here.

NLRA Preempts California Wrongful Termination Claim

Richard Luke was suspended for alleged dishonesty regarding his whereabouts. He then sent an email to his employer's parent's management entitled "trouble brewing." He was promptly fired the next day for circulating an anti-management petition and for ignoring the "chain of command." He testified at his deposition that he and other employees discussed working conditions such as being passed over for promotion, and physical conditions at the wine-label manufacturing plant at which he worked. He thought that was why he was fired. He said discharging him for that reason violated the public policy expressed in Labor Code section 232.5 (no adverse action against employee who "discloses" working conditions.).
In Luke v. Collotype Labels USA, Inc., opinion here, the court of appeal found that section 232.5 is preempted by the National Labor Relations Act. Essentially, Luke's working with other employees to complain about promotions and plant conditions was a "concerted activity" that were "arguably" protected by the NLRA. As such they fall within the "Garmon" preemption doctrine.
Although the court in Luke did not even cite the court of appeal's decision in Grant-Burton v. Covenant Care, 99 Cal.App.4th 1361 (2002), opinion here, this decision contradicts Covenant Care's holding that a common law wrongful termination claim based on section 232 (prohibiting discharge for discussing wages) was viable. The court in Covenant Care addressed the NLRA, but noted the parties had not raised Garmon preemption on appeal, and left that issue for remand. (That sound you hear is me, smacking my forehead really hard.) With all due respect to the court of appeal in Covenant Care, that case was incorrectly decided, as shown by the decision at blog.

U.S. DOL Proposes Revised FMLA Regulations

The U.S. DOL has been hard at work considering revisions to the FMLA regulations. We posted about the initial report here. Lots of time has passed, and the present administration is coming to a conclusion. So, I'm sure employers were wondering if there would indeed be new regulations as much as we were.

Wait no longer! There will be new proposed regulations published in the Federal Register on February 11. Here they are, all 470ish pages of discussion, analysis and proposed regulations. There also are proposed regulations regarding the new FMLA amendments regarding servicemembers.

We will publish an article on the draft regulations in the coming weeks. Until then, get your reading glasses, you're on your own. Thank you Ross Runkel and your Employment Law Memo!


Court of Appeal Holds IT Employee Is... Exempt

A network administrator's job is described as follows in the opinion -
Combs served first as manager of capacity planning, and then as director of network operations. He voluntarily resigned in November 2004. Combs's resumé, which he prepared after he left Skyriver, indicated that as Skyriver's director of network operations, he was responsible for (among other things) "project management, budgeting, vendor management, purchasing, forecasting, [and] employee management"; management of "overseas deployment of wireless data network"; management of "the integration and standardization of three networks into the Skyriver architecture"; and the overseeing of "day to day Network Operations." At trial, Combs acknowledged his resumé was accurate. He testified that his "core" responsibility at Skyriver was "maintaining the well-being of the network," and he spent 60 percent to 70 percent of his time carrying out that responsibility. Combs called a number of witnesses who also confirmed that Combs's resumé was accurate. Specifically, Scott Akrie, who as Skyriver's chief technical officer supervised Combs from 2001 to about mid-2003, and Edward West, Skyriver's former vice president of operations, who supervised Combs from late 2003 until Combs left Skyriver, both testified that Combs's description of his duties in his resumé was accurate, as did Michael Williams, Skyriver's director of field operations. Combs's own testimony and the documentary exhibits (including Combs's resumé and some of his e-mails) showed that he was responsible for maintaining, developing and improving Skyriver's network, and his duties involved high-level problem solving and "troubleshooting"; preparing reports for Skyriver's board of directors; capacity and expansion planning;
planning to integrate acquired networks into Skyriver's network; lease negotiations; and equipment sourcing and purchasing.

The Court of Appeal decided the employee was exempt under the administrative test. Of note, the Court decided that the trial court was not required to analyze the case under the "administrative/production" dichotomy that has become important in recent cases. Acknowledging the importance of federal FLSA regulations in the analysis of the exempt duties under California law, the court had no trouble upholding the trial court's determination that Combs spent over 50% of his time on exempt, administrative duties, and that he had the
requisite discretion and independent judgment.

The case is Combs v. Skyriver Communications and the opinion is here.

California Supreme Court Takes Up "Stray Remarks"

In a discrimination case, the plaintiff may attempt to introduce allegedly biased comments by a person unrelated to the negative decision that is the subject of the lawsuit. A number of courts, including in California, have characterized these as 'stray remarks' that have no bearing on the plaintiff's case, and which do not defeat motions for summary judgment.

In last year's decision in Reid v. Google (opinion here), the Court of Appeal expressed disdain for the "stray remarks" doctrine, saying the trial court should have let a jury decide their importance. The California Supreme Court accepted review and will consider whether such evidence defeats a motion for summary judgment.

The Cal. Supreme Court appeared to leave untouched a number of other issues the Court of Appeal addressed, such as whether the "shifting burdens" analysis is mandatory, the use of statistics in individual discrimination cases, and other bedrock employment law issues.

The Supreme Court also will resolve once and for all - must the trial court specifically rule on objections to evidence submitted in support or opposition to a summary judgment motion? The Reid court decided trial courts need not do so, contrary to a recent spate of appellate decisions holding that they must.

Oh, and I, for one, welcome our new Google overlords. They do host this blog after all.