2002-5

UNITED STATES SUPREME COURT

A. United States Supreme Court Broadens Worker's Ability To Allege Bias

In Swierkiewicz v. Sorema, 2002 Daily Journal D.A.R. 2152 (Feb. 27, 2002), the court unanimously ruled that plaintiffs do not have to provide direct evidence of bias when they file an employment discrimination complaint. Writing for the court, Justice Clarence Thomas rejected the argument that plaintiffs must, in effect, prove their case when they file suit. A complaint must contain only "fair notice of what the plaintiff's claim is and the grounds on which it rests" he said. "Before discovery has unearthed relevant facts and evidence," it may be difficult for plaintiffs to prove a "prima facie" case.

The decision reinstates a Title VII employment discrimination case brought by plaintiff Akos Swierkiewicz who claimed that Sorema, Century Insurance Company, discriminated against him based on race and age. The U.S. District Court dismissed his suit after finding that plaintiff had not adequately alleged a prima facie case because he had not adequately alleged circumstances that support an inference of discrimination. Reversing that decision, Thomas said that "the prima facie case under McDonnell Douglas...is an evidentiary standard" that must be met to survive summary judgment, "not a pleading requirement." The ruling settled a split in the federal circuits on the proof required for a discrimination complaint. In doing so, it upholds the position set forth by the Ninth Circuit Court of Appeals in Ortez v. Washington County, 88 F.3d 805 (1996).

Back to Top | Back to Summaries

CALIFORNIA COURT OF APPEALS

In TBG Insurance Services Corporation v. The Superior Court of Los Angeles County, 2002 Daily Journal D.A.R. 2091 (Cal.App.2d Dist., Div. 1, 2/20/02), the California Court of Appeal reversed the trial court's refusal to compel production. For about twelve years, Robert Zieminski worked as a senior executive for TBG Insurance Services Corporation. In the course of his employment, Zieminski used two computers owned by TBG, one at the office, the other at his residence. Zieminski signed TBG's electronic and telephone equipment policy statement in which he agreed, among other things, that he would use the computers "for business purposes only and not for personal benefit or non-company purposes, unless such use was expressly approved. Under no circumstances could the equipment or systems be used for improper, derogatory, defamatory, obscene or other inappropriate purposes." Zieminski consented to have his computer use monitored by authorized company personnel on an "as needed" basis and agreed that communication transmitted by computer were not private. He acknowledged his understanding that his improper use of the computers could result in discipline action, including discharge. On November 28, 2000, according to TBG, Zieminski was terminated when TBG discovered that he had violated TBG's electronic policies by repeatedly accessing pornographic sites on the internet while he was at work. According to Zieminski the pornographic websites were not accessed intentionally, but simply "popped up" on his computer. Zieminski sued TBG alleging that his employment had been wrongfully terminated.

TBG asked Zieminski to return the home computer and cautioned him not to delete any information stored on the computer's hard drive. In response, Zieminski acknowledged that the computer was purchased by TBG and said he would either return it or purchase it, but said it would be necessary to "delete, alter and flush or destroy some of the information on the computer's hard drive since it contains personal information which is subject to a right of privacy." TBG served on Zieminski a demand for production of the computer and Zieminski objected claiming invasion of his constitutional right to privacy. TBG moved to compel production of the home computer.

The trial court refused to compel production of the computer. On the employer's petition, the appellate court concluded that given the employee's consent to his employer's monitoring of both computers, the employee had not reasonable expectation of privacy when he used the home computer for personal matters. The court essentially found that TBG's advance notice to Zieminski gave Zieminski the opportunity to consent to or reject the very thing he now complained about and that notice, combined with his written consent to the policy defeated his claim that he had a reasonable expectation of privacy.

Back to Top | Back to Summaries

NINTH CIRCUIT COURT OF APPEALS

A. The Family Medical Leave Act Does Not Automatically Deny Coverage To Claims Which Fail To Document Treatment

In Scamihorn v. General Truck Drivers, 2002 Daily Journal D.A.R. 2517 (9^th Cir., Mar. 4, 2002), Scamihorn had worked as a truck driver at Albertsons. On July 19, 1994, plaintiff's sister was murdered by her husband. Plaintiff's 73 year old father who had undergone heart surgery the preceding year and also suffer from diverticulitis, weakening of the colon, and depression following his sister's death. Scamihorn decided that he and his family would move temporarily to Reno to assist his father as he coped with the depression. In early October 1994, plaintiff requested a one month unpaid leave of absence effective October 5, 1994 to November 5, 1994. Plaintiff completed and signed a formal leave of absence request form on which he indicated the purpose of the leave was to deal with the illness of his father and to settle the Estate of his deceased sister. The Human Resources Manager, David Moore, did not advise Scamihorn of the FMLA. Albertsons, however, granted the leave of absence but told Scamihorn that he could not work for another employer while on leave or he would be immediately terminated.

While residing in Reno, Scamihorn spent time with his father driving him to counseling sessions and performed household chores. In late October 1994, Scamihorn contacted Moore that he needed to stay in Reno beyond the initial 30 days to continue to assist his father. Moore reiterated that if Scamihorn worked for another employer while on leave he would be terminated. During the conversation, Moore and Scamihorn agreed that Scamihorn would voluntarily resign from employment with Albertsons. Scamihorn claimed Moore told him that he would be rehired if he returned to work within six months of his leave date in October 1994. Scamihorn remained in Reno until approximately March. By that time, his father's condition had improved significantly and he returned to California. Plaintiff sought reinstatement, complete with seniority to his former position with Albertsons. Moore informed Scamihorn that because of Albertsons collective bargaining agreement with Teamsters Union Local 952, Albertsons could not rehire him at that time. Later, however, Albertsons rehired Scamihorn as a probationary truck driver in May 1995. Albertsons could not restore Scamihorn's seniority without the Union's permission which the Union refused to give.

Scamihorn filed suit against Albertsons and the Union in federal court alleging violation of the FMLA. Scamihorn claimed Albertsons and the Union failed to advise him of his rights under the FMLA. He argued that because his circumstances fell under FMLA protections, Albertsons should have granted him leave and he should have been reinstated in his former position and seniority level upon his return from Reno.

The District Court dismissed all claims against the Union and some of the claims against Albertsons. Albertsons then moved for summary judgment on the remaining claim arguing that Scamihorn's father did not have "serious health condition" and Scamihorn did not "care for" his father within the meaning of the FMLA. The court found that Scamihorn did not care for his father under the terms of the FMLA and granted the motion.

The Ninth Circuit concluded that the summary judgment was in error. The Court stated that in order to meet the requirements established by the FMLA regarding "serious health condition" Scamihorn must prove that his father's depression resulted in an incapacity, absence from work or other daily activities, of more than three consecutive days and that he was receiving continuing treatment by a health care provider. The Court did point out that there existed a genuine question of whether plaintiff met all the statutory requirements to show that his father suffered from a serious health condition. The Court further went on to discuss the "to care for" provision. The Court concluded, viewing the evidence in the light most favorable to Scamihorn, that he raised a genuine issue regarding whether his activities were necessary because his father was at times unable to care for some of his own basic needs even though there were gaps and uncertainties in the record to suggest that Scamihorn may be unable to ultimately prove that he meets the criteria established by FMLA, but this needed to be resolved at trial.

Back to Top | Back to Summaries

OTHER UNITED STATES CIRCUIT COURT OF APPEALS

A. Seventh Circuit Overturns Arbitration Award Enforcing Past Practice Over Contract Terms

In Anheuser-Busch, Inc. v. International Brotherhood of Teamsters Local 744, 36 D.L.R. AA-1 (7^th Cir. 2/15/02), the Seventh Circuit overturned an arbitration award that had ordered Anheuser-Busch to pay drivers commissions based on past practice rather than the language of the collective bargaining agreement. Anheuser-Busch operated a beer distributorship in Arlington Heights, Illinois employing union represented drivers and assistants to deliver pre-sold beer to 1,300 retail outlets. The current collective bargaining agreement which took effect February 1, 1998, provided for two commission rates for drivers. The higher rate applied if the driver worked alone than if he worked with a helper. This two-tier commission structure was identical to that in the parties 1994 to 1998, and 1990 to 1994 agreements. In each case, the parties engaged in "long recent and thorough" negotiations. The company's practice, however, beginning before 1990 and up until April 27, 1998, was to pay drivers the same commission whether they worked with a helper or alone. In April 1998, the company announced it would begin paying driver commissions under the contract language then in force. The Union filed a grievance which went to arbitration.

Upholding the Union's position, the arbitrator determined that the zipper clause did not bar "post execution amendment or modification of an agreement." Although acknowledging his incapacity to change the contract terms, the arbiter found he was "not precluded from giving effect to a longstanding practice or oral understanding reaffirmed and re-adopted by the company following execution of the agreement." Anheuser-Busch sued to vacate the arbitration award, but the district court ordered its enforcement. The Seventh Circuit rejected the arbitrator's reasoning and the district court's decision. Nothing that both the zipper and arbitration clauses had been part of the 1990, 1994, and 1998 contracts, as has had the express provision for the two-tier commission structure, the court asserted that "instead of adhering to the limitations the contract placed on his authority and to the unambiguous and plain language of the contract as it was written, the arbitrator took an end run around the clear and unambiguous restrictive terms of the contract."

Back to Top | Back to Summaries