Jumbosack Corp v. Buyck (Missouri Ct App 05/21/2013) The employer sued Buyck, employee, for breach of the non-compete agreement. The trial court granted summary judgment in favor of Buyck. The Missouri Court of Appeals reversed. Buyck signed the agreement after he was employed. The court found that continued employment and the attendant access to the employer's protectable information and relationships constituted adequate consideration for a non-compete agreement executed after the inception of employment. The court concluded that genuine issues of fact relating to whether the employer materially breached the prior employment agreement remained to be resolved

Haire v. LSU (5th Cir 05/21/2013) Haire, a female public university police officer, sued her employer alleging gender discrimination under Title VII and state law because it failed to promote her to the position of Chief of Police and retaliated against her for filing complaints with the Equal Employment Opportunity Commission (EEOC) and the Louisiana Commission for Human Rights (LCHR). The trial court granted the employer's motion for summary judgment on both claims. The 5th Circuit reversed and vacated.

The court held that summary judgment on the gender discrimination and retaliation claims was improper because Haire (1) produced sufficient evidence for a jury to rule in her favor to prove that the employer's decision to not promote her was pretext for gender discrimination and (2) met her burden of showing a conflict in substantial and relevant evidence. Thus, the trial court erred.

Clukey v. Town of Camden (1st Cir 05/21/2013) Clukey, a former dispatcher with the city's police department for 31 years and union member, was discharged because his department was eliminated. Clukey and his wife sued alleging that the town deprived him of his property interest in his right to be recalled without providing him due process of law in violation of 42 U.S.C. Section 1983 and the Constitution's procedural due process guarantees. The trial court dismissed Clukey's complaint for failure to state a claim, concluding that while Clukey did have a protected property interest in his recall right, his Section 1983 claim was foreclosed by the availability of a state law breach-of-contract claim.

The 1st Circuit vacated, finding that although the court was correct that Clukey's complaint alleged a protected property interest in his recall right, the court could not accept the trial court's conclusion that Clukey's potential recourse to state law foreclosed his section 1983 claim because Clukey had a right to be employed if certain conditions were met. Also, the mere fact that a collective bargaining agreement contained a hearing procedure, does not mean that constitutional due process minimums were satisfied because the city failed to provide Clukey with notice of the availability of recall positions.

Aase v. WMCT&S Inc (Minnesota Ct App 05/20/2013) Aase appealed the trial court's grant of summary judgment for the employer in her claim of unlawful discharge based on marital status. The Minnesota Court of Appeals reversed, holding that discharging an employee for refusing to cooperate with an employer's attempt to mitigate a potential conflict of interest is based on the actions of the employee, not her spouse, and is nondiscriminatory under the Minnesota Human Rights Act (MHRA). Therefore, the court found that the employer articulated a legitimate, non-discriminatory reason for Aase's discharge. However, because the court concluded that there are genuine fact issues related to whether the employer's legitimate, articulated reason for discharge was pretext for discrimination, summary judgment was inappropriate.

Because (1) the record reflected that the employer's administrative team favored discharging Aase's employment if her husband joined the competitor's board and (2) the employer informed Aase that she would be discharged if her husband did not resign from the board, this evidence supports an inference that Aase's marital status was the true reason for her discharge; and thus, the trial court erred.

Lawson v. FMR LLC (US Supreme Ct cert granted 05/20/2013) The US Supreme Court has granted certiorari to decide whether an employee of a privately-held contractor or subcontractor of a public company is protected from retaliation by Sarbanes-Oxley Act section 1514A.

Lawson sued the employer, a contractor to a public company, for violation of the Sarbanes-Oxley Act (SOX) alleging retaliation under the whistleblower protection provision (18 USC Section 1514A). The 1st Circuit held that Congress did not intend the whistleblower provisions of Section 1514A to apply to those who were employees of a privately-held contractor or subcontractor to a public company and who engaged in protected activity. The Supreme Court will review the 1st Circuit judgment.

Lynch v. City of New York (New York App Div 05/16/2013) Lynch sued the employer for violation of Retirement and Social Security Law (RSSL) section 480(b)(I) and (ii) by failing to contribute required amounts to Tier III of the employer's pension system. The trial court granted partial summary judgment regarding violation of the RSSL and granted the employer's motion for summary judgment on the other claims, including the cause of action for common-law conversion of the deducted wages. The New York Appellate Division affirmed in part and reversed in part. The primary issue was whether the employer's decision to not apply an increased-take-home-pay (ITHP) benefit to police officers and firefighters placed into Tier III of the retirement system after July 1, 2009, and to continue deducting 3% of their wages towards their retirement benefits, violated the RSSL. The court held that it did, and held that Lynch stated a cause of action for common-law conversion of the deducted wages. The ITHP was recodified as RSSL section 480 which provided that "Any program ... which assumes ... contribution ... otherwise made by its employees toward retirement ... is hereby extended, notwithstanding the provisions of any other general, special or local law" (RSSL section 480(b)(I)). The court observed that by its own language, section 480 was not restricted to Tier I or II, or to annuity contributions. The court explained that the plain language of the statute indicated a legislative policy to apply ITHP to any government employee, regardless of pension tier. The court found that the employer intentionally and without authority assumed control over personal property belonging to Lynch, interfering with that person's right of possession; Lynch stated a cause of action for common-law conversion. The DISSENT argued that the ITHP did not apply to Tier III employees, who did not have an annuity component, because the benefit provided by ITHP (reduction of the employee's annuity contributions) could not be applied to an employee who made no annuity contributions.

Colon v. Tracey (1st Cir 05/17/2013) Colon sued the employer for violation of Title VII alleging retaliation. The trial court granted the employer's motion for summary judgment. The 1st Circuit affirmed. Colon alleged she was demoted and suspended in retaliation for calling attention to discriminatory employment practices. With respect to the alleged demotion, the court found that the reassignment to cross-training was temporary, had no effect on Colon's salary or job title, and was applied to similarly situated employees without complaint; Colon produced no evidence to discredit the legitimacy of the employer's stated interest in conducting cross-training or to show the employer's true motivation was retaliatory animus. Regarding the suspension, the court concluded that the employer provided two uncontested bases which justified her suspension: (1) Colon did not seek prior approval before faxing confidential salary information to the Puerto Rico State Insurance Fund; and (2) Colon kept proprietary salary information on her personal "pen drive" and non-password-protected "H:drive" in violation of the employer's policy.

Wilson v. Dollar General Corporation (4th Cir 05/17/2013) Wilson sued the employer for violation of the Americans with Disabilities Act (ADA) alleging failure to accommodate. The trial court denied the employer summary judgment based on lack of standing for the pending Chapter 13 bankruptcy petition and granted summary judgment on the ADA claim for inability to perform essential functions of his position with a reasonable accommodation. The 4th Circuit affirmed. Wilson, with a detached retina resulting in blindness in his right eye in his youth, suffered a serious inflammatory condition in his left eye; he returned to work a couple of months later on April 7 with a note from the doctor for two more days of leave, Wilson was discharged on April 7th. The court joined the 2nd, 3rd, 7th, 10th, and 11th circuits in holding, because the debtor in Chapter 13 remained in possession of the estate and cured his indebted by making payments, a Chapter 13 debtor retained standing - concurrent with the trustee - to maintain a non-bankruptcy cause of action on behalf of the estate. Regarding Wilson's request for two more days of leave, the court stated that Wilson must show that with this accommodation he was a qualified individual. The court concluded that Wilson was unable to establish that he could perform the essential functions of his position on April 9. Additionally, the court noted Wilson failed to identify a reasonable accommodation that could have been discovered in the interactive process that would allow him to perform the essential functions of his position.

Evans v. Sebelius (DC Cir 05/17/2013) Evans sued the employer for violation of Title VII alleging race discrimination in a promotion decision and in a transfer decision. The trial court granted the employer's motion for summary judgment. The DC Circuit reversed in part and affirmed in part. The issue was whether Evans produced sufficient evidence for a reasonable jury to find the employer's asserted non-discriminatory reason was not the actual reason and the employer intentionally discriminated against Evans on the basis of race. With respect to the promotion, the court found that Evans established a jury issue on pretext with record evidence that the employer (1) promoted whites but not African Americans during the controls on hiring, (2) offered inconsistent and inaccurate explanations, and (3) was unable to identify who cancelled the promotion position; particularly in light of evidence of comments the jury could interpret as racially insensitive. Regarding transfer, the court explained that Evans presented no evidence that the person was selected for the transfer because she was white or that the supervisor staffing the transfer was even aware of Evans's existence. The concurring opinion concluded the inability of the employer to identify who cancelled the promotion position, by itself, required a jury trial.

Madden v. Poplar Bluff R-1 School Dist (Missouri Ct App 05/16/2013) Madden, a tenured high school teacher with an indefinite teaching contract, was discharged after five members of the school board unanimously voted to do so because the board found competent and substantial evidence indicating that he was incompetent as a teacher and failed to comply with the school district's policies and the board's directives. The trial court affirmed the board's decision. The Missouri Court of Appeals affirmed, finding that Madden was not prejudiced by the board's findings, conclusions and decision document that was signed by only the board's president because the court found that the board met, discussed, voted; and prepared the findings, conclusions and decision document after the board meeting--not before. Thus, the board did not err.

Harbaugh v. Board of Education (7th Cir 05/17/2013) Harbaugh, a teacher, sued the employer for violation of her federal due-process rights by discharging her without a hearing. The trial court granted the employer's motion for summary judgment. The 7th Circuit affirmed. The issue was whether Harbaugh achieved the status of a tenured teacher under Illinois law (four full years as a probationary appointed teacher) and thus had a protected property interest in continued employment. Harbaugh argued that the first year was satisfied by her time as a regularly certified full-time basis substitute teacher, which was subsequently classified as appointed (probationary) teacher by the employer. The court found that from hiring through firing, Illinois law distinguished between probationary "appointed" teachers and substitute teachers - even substitutes working on a full-time basis. Relying on Booker v. Hutsonville School District No. 1, 437 NE2d 937 (1982), which held that a full-time substitute teacher was not the same as a probationary teacher when calculating service toward tenure, the court held that Harbaugh did not achieve tenure and did not have a due-process claim.

Negri v. Koning & Associates (California Ct App 05/16/2013) Negri, an insurance claims adjuster, was employed as an hourly worker, earning $29 per hour with no minimum number of hours guaranteed. When he worked more than 40 hours in a week, he still received $29 per hour. He sued for overtime pay. The trial court held that Negri was an exempt employee and therefore was not entitled to overtime pay. The Californian Court of Appeal reversed because such a payment schedule is not a salary; and therefore does not qualify the employee as exempt. Thus, the trial court erred.

Bailey v. Shelby County (Tennessee Ct App 05/16/2013) Bailey and others, (former part-time county employees), claimed they were wrongfully excluded from the county's retirement plan because when they were hired, the county's retirement plan included part-time employees whose employment was regular and continuous. The trial court entered an agreed order bifurcating the matter and segregated Bailey's writ of certiorari and remanded Bailey's writ to the Retirement Board for another hearing and ordered the Retirement Board to put all witnesses under oath and to state its reasons for either approving or denying Bailey's application for retirement benefits. The Chancery Court (trial court) then awarded the public employer's motion for summary judgment and dismissed all claims, including Bailey's writ, based on the six-year limitations period applicable to contract actions. The Tennessee Court of Appeals affirmed in part and reversed in part.

Because the others' cause of action accrued, the court affirmed. However, the trial court erred by failing to bifurcate Bailey's writ of certiorari action from the others' declaratory judgment action and 42 U.S.C. Section 1983 claims. Therefore, the court vacated the trial court's award of summary judgment to the employer with respect to Bailey's petition for writ of certiorari.

Allen v. Riese Org Inc (New York App Div 05/16/2013) Allen sued the employer for employment discrimination, retaliation, and hostile work environment alleging duress and overreaching in signing release. The trial court denied the employer's motion to dismiss. The New York Appellate Division reversed. Allen sign a release of all claims with notification to consult with an attorney, a seven day "cooling off" period, and an acknowledgement that he understood the terms of the release. Allen accepted the severance payment provided under the release and filed suit three years later. The court found that Allen was barred from challenging the release on the grounds of duress and overreaching because he ratified the release.

Cal Assn Prof Scientists v. Brown (California Ct App 05/16/2013) The issue in this case is whether members of the state bargaining units are entitled to two paid holidays, which were removed from the list of paid holidays by Government Code section 19853 because of a fiscal emergency, after the unions' memorandum of understandings (MOUs) expired. The trial court determined that section 3517.8 required the state give effect to the expired MOUs between the state and the unions until such time as the parties reached impasse in negotiations for new MOUs. The trial court thus, granted the unions' complaints for declaratory relief and writs of mandate, ordering the state to provide the union members with the two paid holidays. The California Court of Appeal reversed, finding that Section 19853 supersedes the expired MOUs because it is a later enactment, and the MOUs were not executed on or after the date in which section 19853 became operative.

NLRB v. New Vista Nursing (3rd Cir 05/16/2013) The 3rd Circuit (2-1) vacated an order of the NLRB based on a finding that the group of NLRB Members to whom authority had been delegated lacked a quorum of three. One of the Members, Craig Becker, was recess appointed by the President during a 17 day intrasession break during which the Senate was not open for business. The court held that this appointment was invalid under the constitution because recess appointments can be made only during a recess between congressional sessions.

Thornton v. Carthon (Louisiana Ct App 05/15/2013) Carthon Sr, a church pastor in the State of Louisiana, appealed the trial court's decision validating the election of two trustees to the church's board of trustees and enjoining him from acting on certain church matters. The Louisiana Court of Appeal affirmed, finding that the trial court's ruling recognizing the election of the board was a thorough assessment of the election process. It revealed no manifest error of fact or error in the application of the corporate governing provisions for the church. Also, the quo warranto claims and Thornton and Williams (board members, acting on behalf of the board of trustees of the church) allegations were sufficient to allow the trial court to issue the injunctive relief, preventing Carthon's participation in church matters. Thus, the trial court did not err.

Block v. Office of the Illinois Secretary of State (Illinois Ct App 05/15/2013) Block appealed from the dismissal with prejudice of his complaint against the State of Illinois, his former employer. Block alleged that the state violated the whistle-blower protection provisions of the State Officials and Employees Ethics Act (the Ethics Act) because he reported to his superiors on what he believed to be the unethical or unlawful acts of his supervising officer. Shortly after his report, he was investigated and discharged from his employment. The Illinois Court of Appeals reversed, finding that the state has waived immunity in suits involving the Ethics Act, because the Act provides remedies for violations involving the whistle-blower protection provisions. Thus, the trial court erred in finding that it did not have jurisdiction to decide this case.

Adeniran v. State of New York (New York 05/15/2013) Adeniran, et al (former state employees) appealed the trial court's grant of summary judgment for the State of New York, dismissing their claims for retaliatory discharge in violation of Executive Law Section 296. The Appellate Division affirmed, finding that because the state met its burden of demonstrating that the former state employees could not make out a prima facie case of retaliation by showing that the complaints made to the supervisors did not relate to statutorily forbidden discriminatory practices; and therefore they did not engage in a protected activity, the trial court did not err.

Doyle v. City of Medford (Oregon Ct App 05/15/2013) Doyle, Miller, Deuel, and Steinberg (four retired city employees) sued their former city employer and its city manager (municipality), alleging inter alia that it violated (1) ORS 243.303(2) because it failed to provide them with its health insurance coverage—not just that which is provided through the Public Employee Retirement System (PERS)—after retirement; (2) ORS 659A.030(1)(b) because it discriminated against them because of their ages; and (3) their employment contracts, constituting a breach. The trial court granted Doyle and Miller's motions for summary judgment on the question of liability on the ORS 243.303(2) violation and on their age discrimination claim; it dismissed the first and age discrimination claims for two retirees for statute of limitations reasons, but decided each retiree's other claims and amount of damages differently.

The Oregon Court of Appeals found that because it concludes that because (1) ORS 243.303(2) does not demonstrate that the legislature contemplated a private right of action for damages, the municipality was entitled to summary judgment on the first claim—Doyle and Miller's grant of summary judgment is now reversed; (2) the trial court abused its discretion in allowing amendment of the retirees' complaint on the day of trial to include a new theory of recovery because the retirees failed to plead age discrimination based on a theory of disparate impact, the age discrimination claim fails; and (3) the health plans member handbook describing employees' health insurance benefits for one plan year does not constitute the basis for a contractual employment agreement in subsequent years, the trial court erred.

Koessel v. Sublette County Sheriffs Department (10th Cir 05/14/2013) Koessel, a police officer who suffered a stroke, sued the employer for violation of the Americans with Disabilities Act (ADA), breach of contract, and violation of his procedural and substantive due process rights. The trial court granted the employer's motion for summary judgment on all claims. The 10th Circuit affirmed. With respect to the ADA claim, the court found that Koessel did not establish that he could perform the essential functions of his job in light of the psychologist's report recommending a low-stress position without regular contact with the public, and he did not request a modification of his prior patrol officer position nor was there a vacant job available for reassignment. The court concluded the breach of contract claim failed because Koessel could not show he was discharged without cause, received inadequate notice, or was not afforded an opportunity for a hearing. The court explained that Koessel's procedural due process claim was satisfied by adequate notice, an explanation of the evidence, and an opportunity to respond via a pre-termination adversarial hearing and a post-termination hearing by judicial review of the employer's decision. The court noted that the substantive due process claim was properly dismissed where the employer's reliance on the psychologist's report provided the employer with rational reasons for its decision.

Schmitz v. US Steel Corporation (Minnesota Ct App 05/13/2013) The employer appealed the trial court's judgment awarding Schmitz $15,000 in damages and reasonable attorney fees and costs for threatening to discharge him for seeking workers' compensation benefits in violation of Minnesota Statute Section 176.82 subd.1. Schmitz cross-appealed arguing that the trial court erred by finding for the employer on his retaliatory-discharge claim. The Minnesota Court of Appeals affirmed in part and reversed in part. The court held that a claim for threatening to discharge an employee for seeking workers' compensation benefits in violation of Minn. Stat. Section 176.82, subd. 1, requires: (1) knowledge by the employer that the employee suffered a workplace injury; (2) the employer attempted to dissuade the employee from seeking workers' compensation benefits through one or more communications; (3) the communication(s) created a reasonable apprehension of discharge; and (4) as a result, the employee delayed or ceased seeking workers' compensation benefits. Thus, because Schmitz provided proof of the violation, the trial court did not err in finding the employer violated the statute.

However, because Schmitz's claim alleging retaliatory discharge in violation of Minnesota Statute Section 176.82, subd. 1 seeking money damages is a tort action at law with an attendant right to a jury trial under the Minnesota Constitution, the trial court erred on that claim.

McCoy v. Pacific Maritime Association (California Ct App 05/14/2013) After settlement of a federal lawsuit which included training for a more lucrative position of vessel planner, McCoy sued the employer for sexual harassment and retaliation in violation of the California Fair Employment and Housing Act (FEHA), and other claims. The trial court granted summary judgment in favor of the employer on the sexual harassment claim and other claims. The jury found in favor of McCoy on the retaliation claim. The California Court of Appeal affirmed in part, reversed in part, and remanded for a new trial. With no sexual conduct or comment directed at her and only five to nine instances of comments in four months, the court found the factual allegations made by McCoy were insufficient to support a sexual harassment claim under the hostile workplace theory. The disclosure of the confidential settlement agreement in the federal case to McCoy's supervisor and vessel planner co-workers and the testimony of McCoy's psychologist were sufficient for the jury to reasonably conclude that actions against McCoy were specifically carried out in retaliation for McCoy's federal lawsuit; the court reversed the trial court's entry of judgment notwithstanding the verdict. However, the court affirmed the granting of the employer's motion for a new trial based on irregularity in the proceedings (counsel's misconduct making improper arguments), surprise (introducing an inflammatory photo during closing argument), and excessive damages (miscalculation of difference in earnings). The court explained that McCoy did not need to establish a constructive discharge in an FEHA case in order to recover economic damages; in contrast to Title VII, the court stated the purpose of the FEHA was to make the victim of discrimination whole.

United States of America v. City of New York (2nd Cir 05/14/2013) The United States (the government) alleged that the City of New York's use of Exams 7029 and 2043 had a discriminatory impact on minority applicants for the position of entry-level firefighter. The trial court held that the City use of the exams had a disparate impact.

The City of New York, its mayor and fire commissioner in their individual and official capacities (the City) appealed the trial court's order, issuing an injunction against it with respect to the hiring of entry-level firefighters, and a grant of summary judgment to the Intervenors (an organization of black firefighters) on their disparate treatment claim that alleged intentional discrimination. The 2nd Circuit, inter alia, vacated the summary judgment on the disparate treatment claim by the Intervenors against the City and modified and affirmed the injunction.

Before considering the issues on appeal, the court noted that the City declined to challenge the trial court's disparate impact ruling and the remedy requiring development of a new entry-level exam, or the appointment of a Special Master. The central issue in the pending case is what showing an employer must make to satisfy its burden of production in a pattern-or-practice case. The court concluded that the fact-finder will consider, among other things, whether the lack of job relatedness of the exams should have been apparent to the City and whether the City's use of the exams, once their racially disparate impact was known, proves, in light of the history of low minority hiring, that the City used the exams with the intent to discriminate. Thus, granting summary judgment for the Intervenors was error. Therefore, the court also only upheld provisions in the injunction that were appropriate as relief for the City's liability on the government's disparate impact claim.

The DISSENT believes that the majority incorrectly applied the standard for cases involving an individual Title VII violation to this pattern-or-practice case. By requiring the City merely to articulate some legitimate nondiscriminatory reason for the adverse action as set out in McDonnell Douglas Corp v. Green, rather than demand it to demonstrate that the Intervenors' proof is either inaccurate or insignificant as required by International Brotherhood of Teamsters v. US, the majority conflates the two distinct tests set out in our disparate treatment jurisprudence.

May v. Chrysler Group LLC (7th Cir 05/14/2013) May, a Hispanic, sued his employer alleging he was harassed and that the employer was liable because of the hostile work environment. At trial, the jury concluded that May carried his burden and awarded him $709,000 in compensatory damages and $3.5 million in punitive damages. The trial court however, believed that the jury's compensatory damages award was excessive and May accepted remittitur to $300,000 for compensatory damages. The trial court also vacated the punitive damages award. The 7th Circuit reversed in part to reinstate the punitive damages verdict. However, in an amended opinion, the 7th Circuit found that the employer could have done more to stop the harassment. But, given the situation that it faced—an anonymous harasser, an assembly plant covering four million square feet, and a three-shift-a-day operation, the employer's response was enough as a matter of law to avoid punitive damages liability. Thus, it affirmed the trial court's judgment, vacating the punitive damages award.

Ravenscroft v. Boise County (Idaho 05/13/2013) Ravenscroft petitioned the trial court for review of the final decision of the Board of Commissioners for discharging him. The trial court denied the Board's motion to dismiss for lack of jurisdiction to hear an appeal of a county personnel determination. The Idaho Supreme Court affirmed. Idaho Code section 31-1506(1) provides "[u]nless otherwise provided by law, judicial review of any ... proceeding of the board shall be initiated by any person aggrieved thereby ... as provided in chapter 52, title 67, Idaho Code, for judicial review of actions." The dominant issue was whether the Board's decision to discharge Ravenscroft was the type of proceeding for which I.C. section 31-1506 provided review. The court answered yes. The court found that the legislation was unambiguous in that there was no language in the statute excluding personnel decisions from the meaning of "any ... proceeding." The court explained that allowing review of a board's decision to discharge an at-will employee would not change the employment to one terminable only for cause.

Mulero v. Board of Education (Connecticut Ct App 05/13/2013) Mulero appealed the trial court's grant of summary judgment for the employer in his action seeking monetary and injunctive relief for an alleged breach of contract and violation of the Connecticut Fair Employment Practices Act. The Connecticut Court of Appeals affirmed because it found that Mulero's claims are barred by res judicata. Because Mulero previously brought claims against the employer based upon the same cause of action as that which underlies his present claims, and has prosecuted those claims to a final judgment on the merits, the trial court did not err.

Feliciano v. Autozone Inc (Connecticut Ct App 05/13/2013) The employer discharged Feliciano because it discovered she violated the company's loss prevention policy by allowing others to sign into her cash register under her customer service number. Feliciano appealed the trial court's grant of summary judgment for the employer. The Connecticut Court of Appeals affirmed, finding that because: (1) Feliciano failed to produce enough evidence for a reasonable jury to find that she was disabled within the meaning of Section 46a-60, the reasonable accommodation disability discrimination claim could not survive; (2) she failed to include necessary allegations in her sexual harassment claim; and (3) she did not present a prima facie case of discrimination, her discrimination claim also failed. Thus, the trial court did not err.

Kuznia v. Adams (New York App Div 05/09/2013) Kuznia appealed her discharge after a hearing in which she was dismissed for incompetence. The New York Appellate Division affirmed. Kuznia was the Deputy Director of the employer's probation department. The court found, despite two warnings regarding serious and specific deficiencies in her job performance, she continued to exercise poor professional judgment regarding the management, training, and supervision of the probation officer in charge of one of the programs; and that she neglected her duties to implement certain policies and comply with mandated reporting requirements which created a public safety issue and exposed the employer to liability. Notwithstanding Kuznia's many years of service and prior positive performance evaluations, the court did not find the penalty of discharge to be shocking to the court's sense of fairness.

Cox v. Colorado (Colorado Ct App 05/09/2013) Cox petitioned to seal records of non-traffic offenses possession of marijuana and possession of drug paraphernalia. The trial court denied the petition because the third offense was excepted, a class A traffic offense for unsafe lane change. The Colorado Court of Appeals reversed. Cox alleged he had lost a job and been declined for employment due to the drug records relating to this case. The issue was whether the record could be sealed as to the non-traffic offenses only. The prosecution relied on the majority opinion in Clark v. People, 221 P3d 447 (Colo.App.2009) denying a separation of the non-traffic offense from the traffic offense for the purposes of sealing the record. The court adopted the dissenting opinion in Clark: (1) there was no practical impediment to offense-specific sealing, (2) offense-specific sealing would further the legislative policy because it gave broad effect to the general rule, and (3) therefore the statute did not prohibit offense-specific sealing. The court instructed that if the trial court "finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the record," as to the drug offenses, it should seal the criminal records as to those charges.

Rivera v. Woodward Resource Center (Iowa 05/10/2013) Rivera sued the employer for wrongful discharge in violation of public policy. The trial court dismissed the case for failure to exhaust administrative remedies. After denial of administrative remedies, Rivera filed her suit a second time in the trial court, which dismissed the suit for violation of the two year statute of limitations. The Iowa Supreme Court vacated the decision of the Court of Appeals, reversed the trial court judgment, and remanded. The Iowa Tort Claims Act (ITCA) imposed three separate time periods: (1) a two year time period to file a claim with the director of the department of management, (2) the attorney general had six months to make disposition, and (3) the savings clause extends by six months the two year time period if three elements were met - (a) a timely "claim" was made or filed, (b) the claim was made under a law of this state other than under than the ITCA, and (c) an agency or court determined that the ITCA was the exclusive remedy for the claim. The state argued the first two elements were not satisfied for the savings clause to be applied. With respect to the first element, the court found that the term "claim" in the context of the savings clause included a claim brought by a lawsuit; additionally, considering the purposes of the statute of limitation and the purposes of a savings clause, the court saw no justification for distinguishing between administrative claims and court claims within a savings clause. The court proceeded to the second element, whether the savings clause captured the situation in this case in which Rivera timely filed a lawsuit against the state based on a tort, but did not file the claim under the procedures set out in the ITCA. The court found that the wrongful discharge action filed by Rivera was "under any other law of this state" because common law was law of this state as much as statutory law was law of this state. The court stated this case illustrated how the savings clause was intended to operate by the legislature: (1) Rivera timely filed her claim against the state in the trial court under the two-year statute of limitations governing tort claims in Iowa; (2) the trial court ultimately determined, however, the claim was subject to the ITCA and dismissed the lawsuit for failing to exhaust the administrative remedies as required under the ITCA; and (3) the savings clause of the ITCA then gave Rivera six months from that determination to proceed under the ITCA.

The DISSENT argued that a common law tort claim authorized only by the ITCA was not a claim under "any other law."

Stevens v. The Village of Oak Brook (Illinois Ct App 05/09/2013) Stevens filed a complaint against the employer seeking a declaratory judgment and mandamus ordering the employer to sign a retirement form. The trial court found in favor of Stevens. The Illinois Appellate Court affirmed. Stevens worked part-time as a building inspector from 1980 to 2000 without participating in the Illinois Municipal Retirement Fund (IMRF) because the employer told him he was not eligible. He worked as a full-time inspector from 2000 to 2008 and participated in the IMRF. Upon applying for retirement benefits, he learned he should have been enrolled in the IMRF in 1980. The employer refused to sign the required form for the proper service credit verification. The court found that since Stevens worked more than 600 hours per year, it was mandatory that the employer enroll Stevens in the IMRF. The court noted that the 50 month limit on retroactive service did not apply where the employee should have been a participant in the pension program.