TOV Injury and Safety Blog

Court of Appeals addressed alleged improprieties in verdict against Waste Management

A successful Michigan trial attorney once claimed, in essence, that "a milion dollar verdict is a $250,000.00 settlement that a defendant was too bone-headed to resolve."  The case of Freed v. Salas, Healthlink Medical Transportation Services and Waste Management of Michigan, is a case in point:  Waste Management rejected a settlement of $500,000.00 in this wrongful death case and wound up owing a judgment of more than 6 million dollars.  Attempting to recover from its error in judgment, Waste Management filed an appeal, arguing all manner of errors in the conduct of the trial. 

Employee with Parkinson's fails to stop working before termination; disability benefits denied

Roger Heikkinen became concerned in January, 2003, that his employer would terminate him.  He was reprimanded that month for missing a deadline and reluctantly informed his employers that he suffered from Parkinson's disease.  He immediately sought advice from a law  firm, and the attorneys suggested that he apply for disability immediately.  Heikkinen did not want to give up his full salary (or his job) any earlier than necessary, however, so he continued to work while the attorneys negotiated a termination agreement with his employer.

Disability insurer cannot avoid obligation to drunk driver by characterizing his injuries as "intentional"

The Sixth Circuit recently handed down an important decision interpreting ERISA insurance policies.  Under these policies, insurers have traditionally excluded payment of benefits where an insured intentionally suffered injury.  The Reagan-Bush appointees to the Court has, over the past decade, begun recognizing a broader range of negligent conduct as "intentional" at the request of insurers seeking to avoid a duty to pay health or accident benefits.  The result has been the "activist" development of a line of cases suggesting that insurers could avoid paying benefits where an insured did something "stupid," in cases where no one would categorize the actual injuries as "intentionally" suffered.  In Kovach, et al. v. Zurich American Insurance Company, the Sixth Circuit finally handed down a ruling placing a limit on this development under ERISA.

Two former employees win battle with "defamed" home health care provider

Evergreen Home Health Care sued two former employees (a nurse and a nurse aid) in an effort to punish them for criticizing the care given by Evergreen.  It alleged breach of a non-compete agreement, defamation and interference in its legal contracts with residents and their families.  It rejected mediation-proposed settlements and nominal settlement offers before its claims were ultimately dismissed by the trial court. 

Evergreen never produced a non-compete involving one of the former employees and the court deemed the other agreement "unreasonable" and unenforcible.  It concluded the suit was filed in retaliation for the employees' complaints reaching the office of the Attorney General and were in the nature of a "spite" or vengeance action--particularly given the fact that the employees had no insurance coverage and the suit appeared intended primarily to "ruin them financially."  The Court found no "significant, material" evidentiary support for Evergreen's claim and awarded the employees  sanctions in the form of costs and fees. 

The Court of Appeals upheld the decision, and agreed with the lower court that the action was frivolous. The higher court also returned the case to the lower court to explain why it had not awarded the employees' attorney the full amount of fees that they documented.  Given the attorney's 30+ years of experience, the lower court's failure to sanction his $200.00 per hour fee appeared to the Court of Appeals to be arbitrary on its face.

Where employer leases parking lot, injured employee cannot sue landlord after fall.

Simon Thwaite attempted to sue Vincenti Court, LLC, and others, after he suffered injury in a fall on his way into his office.  He was employed by a company that enjoyed an exclusive lease of the parking lot, and was traversing the lot, on crutches, on his way to work, when he fell.  He argued that he fell on ice that resulted from a defect in the building, a pipe that allowed water to drain from the roof of the building on to the asphalt; and that the duty to repair this condition could not be delegated by Vincenti to his employer.

The Court of Appeals rejected Thwaite's claim, holding that his employer had the sole duty to clear ice from the parking lot, since it enjoyed exclusive possession of the lot.  Unfortunately, the judges failed to address the building owner's active negligence in failing to repair the known defective roof condition that was rendering the parking lot unsafe.  Under the employer's lease with Vincenti, the employer had no right to repair the roof defect.  Perhaps the Supreme Court will address this failure of common sense and justice.

Court rules doctor was unfairly denied malpractice insurance

Doctor Manisha Gupta was hired by Anchor Senior Medical Services to provide direct patient care.  Under her contract, Anchor, doing business as Grand River Medical Center, agreed to provide Gupta with $100,000.00 of malpractice coverage.  Gupta left the practice after 15 months, but later was served with a malpractice complaint arising out of the death of Glenna Wojnicki.  Her employer refused to provide liability coverage for Gupta, arguing that the employment contract it imposed on her was "ambiguous" and should be interpreted to require that when she left Anchor's employment, it became her obligation to purchase a "tail" to cover claims related to her period of employment. 

The Court of Appeals rejected this claim and enforced the plain terms and meaning of the parties' contract.  It was Anchor's obligation to provide $100,000.00 of coverage for Gupta relating to claims arising during her term of employment.

Employer held accountable, beyond workers compensation, for traumatic amputation

Kristi Fries lost both hands above the wrist when the stamping machine she was operating cycled in response to her loose clothing.  She sued her employer, Mavrick Metal Stamping, arguing that it was responsible beyond workers compensation benefits because it had intentionally caused her injury.  An employer in Michigan is immune even from gross negligence or willful misconduct, if an employee is covered by workers compensation:  the courts have been exceedingly slow to allow employees to recover more than medical and partial wages, no matter how egregious the employer's fault is causing an injury.  The Court of Appeals allowed Fries to recover outside work comp, however, after reciting the facts leading up to her horrible injury.

Progressive Insurance may have to pay benefits to injured worker

In Progressive Insurance v. Contract Towing, Inc., the Court of Appeals concluded that a jury must be impaneled to resolve the factual issue of whether an injured man was an "employee" or merely a "hanger-on."  The injured man, Larry Dodson, was hurt while performing maintenance on a Contract Towing truck insured by Progressive.  The Progressive policy excluded coverage for any injury to an employee of Contract Towing.

In a pre-trial hearing, the court concluded that Dodson was not an employee because he had never been paid for his services, even though he showed up on a daily basis, five days per week. The owner, James Wilson, who had provided Dodson with a place to live, meals and occasional spending money, testified that none of these benefits were "bargained for compensation" and that his support of Dodson was a charitable effort.  The Court of Appeals determined that resolving Dodson's status as an employee was a factual question involving issues of credibility.  Therefore it could not be decided by the court in a pre-trial ruling.

Employee limited to work comp as exclusive remedy for injuries

Zoran Saveski attempted to sue the Ford Motor Company, alleging that he suffered injury as a direct result of intentional misconduct by a supervisor.  Saveski , a toolmaker, was directed to assist with maintenance on a "Lamb" machine while the plant was shut down.  During maintenance, he was left holding a 100 pound component, causing a blown disc.  He maintained that the supervisor intentionally placed him in a position likely to cause injury.  The Court held that he had not pleaded sufficient facts to document an exception to the workers comp "exclusive remedy" provision applicable to injuries suffered at work.  In order to avoid that provision and sue his employer for negligence, Saveski would have needed to show that the supervisor actually intended his injury; it was not enough to show that an injury was "likely" or "probable".

Court determines question of employee or independent contractor is one for the jury

Bristol West and Amerisure Mutual ended up in Court, arguing over who should provide PIP benefits to an injured truck driver.  Bristol West insured the driver for no fault benefits, while Amerisure insured the company for whom he was driving.  The trial court had heard the evidence under the "economic reality" test and the McKissic opinion, and concluded that the driver was an independent contractor.  The Court of Appeals reversed, sending the case back for the jury to resolve the factual disputes arising out of controverted testimony.  Witnesses disagreed over some of the factors determining employment status, and ultimately the issue was one for the finder of fact to sort out:  the Court was not allowed to make findings of fact in order to support its ruling over independent contractor status.

Allstate, bottom-rung of insurers, settles discrimination suit by employees

The Associated Press reported on September 11 that Allstate Insurance Company will pay $4.5 million dollars to settle an age discrimination suit brought by 90 employees.  The Equal Employment Opportunity Commission had assisted the employees, who apparently established that Allstate's effort to treat its sales agents as "independent contractors," discriminated against agents over 40.  Apparently ninety percent of the agents who were not "re-hired" or re-assigned (or whatever you do when you fire people and then hire some back as "independent contractors") were over 40.  Allstate is well known among lawyers and judges for cutting corners and abusing civil procedure whenever an extra few pennies of profit might be at stake.

Court analyzes common work area doctrine in case vs. Northwest Airlines

Elizabeth Banaszak, an apprentice electician, was injured when she fell through a temporary plywood covering and into a mechanical pit at the end of a covered walkway at Metro Airport.  The walkway was being renovated at the time, and Banaszak claimed that NW Airlines had retained control of the construction site, thereby assuming a duty to the employees of sub-contractors to keep the common work area safe.  Following repeated motions by NW, the trial court eventually dismissed Banaszak's claim, holding that she had not established the foundation for a common work area claim against NW.  The Court of Appeals reversed.

Progressive can't duck insurance obligation to rodeo

In Progressive Michigan Insurance Co. v. Super Kicker Rodeo Productions, et al., Progressive and ACE American Insurance Co. both tried to avoid paying for injuries suffered by Donielle Hart.  Both companies had underwritten liability coverage for the Rodeo's activities, but both argued that the coverage did not apply to Hart's very severe injuries.  Hart was a family member who helped out with the rodeo on an unpaid basis.  She helped to tear down the aluminum rodeo gates following a performance and suffered a skull fracture and other severe injuries when the loaded gates fell off a semi-trailer after a rope broke.  The trial court had dismissed the case against ACE and Progressive concluding that there were no questions of fact regarding the application of the insurance policies to the various individuals' employment status and the nature of Donielle's activities at the time of the injuries.

Court dismisses employment claim because worker was confused over company name

Kenneth Johnson sued Hungry Howie's in Wexford County Circuit Court, alleging that he was wrongfully fired from his job.  Johnson alleged that he was entitled to Whistleblower's protection, therefore requiring him to file his suit within 90 days of the termination.  He filed within the deadline, but mistakenly identified his employer as "Hungry Howie's Properties, Inc." rather than "Hungry Howie's PIzza & Subs, Inc."  Both corporations are located at the same office and share the same telephone number.  The Circuit Court and the Court of Appeals upheld the dismissal of his claim based on Johnson's naming of the wrong corporate defendant during the short statutory limitation period.

Fall from ladder evokes "common work area" doctrine; employee of sub-contractor can sue

David Slater was injured in a fall from a 32 foot ladder, as he attempted to unchain it.  The General Contractor had suggested that he unchain the ladder, left by another subcontractor, despite Slater's lack of experience on roofs, ladders or heights and his lack of fall protection.  His claim was initally dismissed by the trial court, but reinstatted by the Court of Appeals.  The higher court ruled that these circumstances brought into play the "common work area" doctrine, under which the owner or general contractor must assume a legal duty to maintain safety in certain construction areas.

State attorney generals complain about FedEx treatment of employees

In a previous blog, we reported on the FedEx policy of claiming that its employees are independent contractors, and then abusing them by forcing them to buy their delivery trucks, failing to pay for proper insurances and generally taking advantage of them in an illegal manner.  On June 25 the Attorney Generals of Montana and seven other states demanded that Fed Ex Ground properly classify their drivers and manage employment issues in accordance with employee protection laws. 

Law firm not responsible for employee's fraudulent notarization of signature.

Susan Grossman sued Liss and Associates, her ex-husband's attorneys, after an employee allegedly notarized her forged signature on an assignment of mortgage.  The case has made its way to the appellate court twice previously, and the court had overturned both a summary disposition and a directed verdict that had been granted to the defendant law firm.  Previously the court had held that whether the employee was acting "within the scope of her employment" at the time of the allegedly illegal act was a question of fact for the jury.  On this appeal, the plaintiff was attempting to overturn a jury verdict for the defense, based on what she claimed were unfair instructions from the trial judge.

Workers compensation "exclusive remedy" provision upheld

In Stallings v. General Motors Corp., the Court of Appeals again upheld the dismissal of an injury action against the injured employee's employer.  As has been explained in previous web log entries, adoption of the workers compensation scheme resulted in partial immunity for employers' negligence.  People hurt on the job are guaranteed certain benefits including medical expenses and a fraction of their normal wage, but cannot secure complete recovery from their employer, even if the employer is guilty of negligence or gross negligence.

Court upholds employer's mandatory arbitration contract

The Sixth Circuit issued a decision on May 19, upholding Varsity Ford Management Services, LLC's employment contract that limited employees' ability to sue for age, disability or race discrimination.  Omari Mazera had worked for Varsity in Ann Arbor for seven years before what he alleged was an unlawful termination.  A naturalized citizen from Kenya, Mazera claimed his firing was illegal discrimination and that the 2004 employment contract imposed by the employer could not precipitously mandate arbitration of employees' civil rights.  The contract required arbitration of all disputes and was imposed as a "term and condition of employment."

Eastern District allows retaliatory discharge claim to go to trial

Judge Lawson of the Eastern District reconsidered his earlier dismissal of a retaliatory discharge claim and determined that Lynn Morrison's case against B. Braun Medical, Inc., should be decided by a jury.  The Judge pointed to a recently-decided Sixth Circuit opinion which comports with the Michigan law on retaliatory discharge as the foundation for his change of opinion, along with additional facts supplied by the employee.

The employee allegedly reported anti-kickback law violations and refused to illegally promote medical products.  The judge found that within three months she was placed on a performance improvement plan (PIP), and that she was discharged 8 months later.  Her claim of disparate treatment (others with lower sales numbers were not subjected to a PIP) and heightened scrutiny in close proximity to the exercise of protected activity, raised a question of fact for the jury to decide.

Bus driver who made gun threat cannot sue after termination

A Madison Heights school bus driver was involved in a "contentious" running dispute with another driver over scheduling.  At a meeting set by administrators and union reps to attempt to resolve the dispute, the bus driver packed her things and left prematurely, stating she'd take the matter up with the Superintendent and "...bring her gun."  She met with authorities investigating the matter several times, but on advice of counsel she refused to discuss the matter.  She was then terminated and sued the  school and the union for inadequate representation.  The trial court and Court of Appeals dismissed her claim.  Some careless statements are just too inflammatory:  making jokes about a gun at school or at work has become sort of like making bomb jokes in an airport. 

Electrician cannot sue employer for intentionally-caused injury

The Michigan Legislature adopted a statute that defines the rare situations where an employee can sue his employer for injuries suffered at work.  Normally, the employee is limited to the benefits provided by the workers compensation scheme (that is statutory medical  or funeral/burial payments, partial wage loss and very limited attendant care).  The legislature did hold open the potential for an employee to sue his employer for injuries if they are the result of intentional misconduct.  It also defined "intentional" misconduct in a manner that allows a jury to infer the employer's intent.  That statutory definition was at the heart of a disagreement by the Court of Appeals judges who decided the Allard v. Detroit Edison case.

Nurse practitioners, though demonstrating likely discrimination, cannot pursue class action

In Halabicky, et al. v. University of Michigan, a group of female nurse practitioners  (NPs) sought class action status for their claim that they were victims of gender discrimination under the Elliott-Larson Civil Rights Act.  The nurse practitioners alleged that they performed essentially the same job as (predominantly male) physician assistants (PAs), but for substantially less pay.  The federal trial judge felt compelled to deny them class action status, even though he felt that they had presented facts that strongly implied discrimination. 

The judge noted that while the nurse practitioners were a bargaining unit within the University system and constituted a reasonable "class" in terms of homogenous treatment, they were being compared with physician assistants who were retained, compensated and "defined" on an individual basis within various departments of the University system.  Given that NPs and PAs are "entirely different medical certifications,"  and that PA jobs are defined and compensated on a departmental basis, the NPs could not prove discrimination affected their entire class in a similar manner:  each NP would have to prove discrimination separately by a comparison with PAs within her department.

The Court noted that NPs were compensated on a bargained step basis, with the 2008 steps ranging from $72,000.00 to $88,000.00.  They remain eligible for overtime pay, with these figures translating into pay for three of the Plaintiffs in the range of $106,000.00 to $116,000.00.  PAs, on the other hand, are compensated in accordance with various Department's budgets and needs on a market basis.  In non-Human Resource terms, this translates to "lucrative practices pay PAs better than less lucrative Departments," with the 2007 base salary figures ranging from $67,000.00 to $130,000.00.

The Court acknowledged that each of the female NPs had identified male PAs within their respective departments, who earned signicantly more than the NPs, although performing similar or identical duties.  The Court also confirmed that the NPs had presented expert analysis of salary figures that documented an annual salary difference of $8-10,000.00 between male and female workers performing similar duties, even when taking into account years of service, education and years in title.  The expert calculated that the odds of the gender difference identified occurring by chance alone was about "one in a million".

Despite these statistical differences, which he felt suggested evidence of gender discrimination, the federal judge concluded that the female plaintiffs could not meet the established standards for treating all University Health System NPs as a single class:  there were simply too many variables between the women's employment circumstances to qualify them all for unified analysis under class action court rules. 

Where can a fired employee file suit for discrimination?

Sometimes where a suit is filed is as important as the evidence presented.  A discrimination claim, for example, will find a more sympathetic ear among jurors who tend to sympathize with victims of discrimination.  And conventional wisdom says white jurors more easily identify with white litigants while black jurors more readily identify with black litigants.  Fifth Third Bank recognized that; and after two black Wayne County employees were fired and filed suit in Wayne County where they were fired, Fifth Third sought to move their cases from Wayne County to Oakland County "where the decision to terminate the employees was made in the regional office."  The trial judges refused to transfer venue, but a two-judge majority of the Court of Appeals obliged on appeal.

Insurance agents held accountable for arranging illusory health coverage for employees

This week the Court of Appeals upheld a $1.2 million dollar verdict against Joseph Saigh and Lawrence Wells.  The jury had concluded that Saigh and Wells had allowed their employee to sell illusory coverage, provided by an unlicensed insurer, through negligent or intentional misrepresentations.  The Court rejected the defendants claims that they were not responsible for the representations made by their employee and also  rejected arguments that they owed no duty to the employer, even though they were retained expressly  because they claimed to be "specialists in health insurance coverage." 

The Court also allowed the corporate employer to collect exemplary damages from the defendants, based on the injury the company suffered to its good name.  The court noted that as a result of the illusory coverage the Defendants arranged and facilitated, the corporate employer suffered loss of good employees, hundreds of complaints from employees and health care providers, and a loss of reputation.  The case is Unibar Maintenance Services, Inc. v. Joseph Saigh and Lawrence Wells.

Ford Motor wins Family Medical Leave Act dispute

In Carter v. Ford Motor Company, the Sixth Circuit upheld Ford's discharge of the plaintiff, despite her claims of violation of the FMLA.  The Court noted that Carter had not complied with the company's procedural requirements for extending her leave, and that her attempt to return to work on a probationary basis "did not go smoothly". 

"Common work area" claim dismissed

Brent Curry, a licensed electrician, was injured when he stepped into a gap between the on-site construction temporary trailer and the metal stairs providing access to it.  The stairs had never been affixed to the trailer, but no one knew when it separated sufficiently from the trailer to create a gap wide enough to constitute a hazard to workers.  On that basis, the courts dismissed Curry's injury claim against the contractor.

Union workers' anti-discrimination rights can be bargained away

In a reversal of public policy, the U.S. Supreme Court decided last week that a union majority, or its executive council, can bargain away individual rights relating to discrimination.  Historically, the Supreme Court had rejected this kind of argument, noting that a majority within the union may be willing to trade individual rights--or allow discrimination against an insular minority--if it can secure benefits for the broader membership.  In last week's 5-4 decision, written by Justice Thomas, the majority overturned the 1974 Alexander v. Gardner-Denver Company decision and allowed the union to bargain away federal age-discrimination protections.  The Union had acquiesced in employer demands that age discrimination claims be resolved only through arbitration and that normal civil procedure rights (including the right to a jury trial) be relinquished.

Gender discrimination claim dismissed, based on harsh policy allowing discharge for first violation

Sharon Sybrandt was hired by Home Depot in 1991 and eventually promoted to Assistant Manager, before being fired in 2002.  She had violated a Home Depot policy which prohibited employees from using their own security code to effect  certain personal transactions:  she had stood over another employee's shoulder while the employee processed a return under Sybrandt's code.  The Home Depot investigator recommended she be terminated for the breach, which the personnel policy informed employees could result in dismissal, and she was fired.  She sued claiming the alleged policy violation was a subterfuge for gender discrimination.

Post-Taylor court rejects third-party "fault" without duty

Part of the history of tort "reform" legislation was a movement to eliminate joint and several [or "deep-pocket"] liability.  The Michigan Legislature adopted a statute that achieved that end by allowing victims to recover from a particular defendant only those damages attributable to that defendant's fault.   (In this way, the innocent victim bears the weight of the "third-party's" uninsured or uncollectible share of fault.  The reform legislation also allowed the defendant in a lawsuit to blame others who are "at fault" in causing the victim's injuries, without actually suing them.  Insurers had argued that they should be able to place blame on third parties, and avoid responsibility for their "share" of responsibility, even if the third party wasn't included in the lawsuit.  They went an additional step, next, and argued that they should be able to deduct damages for the "fault" of a third-party who owed no duty to the victim.

Wage and Hour Division is failing workers

Congressional auditors concluded this month that the Wage and Hour Division of the Department of Labor had not fulfilled its legal duties to workers during the Bush years.    The nonpartison Governmental Accountability Office concluded that the Division had mishandled 9 of 10 claims  brought by a team of undercover investigators. The examples it cited were revolting  proof of lack of accountability to any reasonable person. 

Government joins in gender discrimination claims against Wal-Mart

The resignation of one of President Bush's appointments to the Equal Employment Opportunity Commission resulted in a reversal of the federal government's position, and this month the EEOC joined with women suing Wal Mart for discrimination.  The EEOC filed an amicus curiae brief in the 9th Circuit, supporting the womens' Title VII claim that Wal Mart uniformly paid women less than men across the country.

Judgment arising out of retaliatory firing under workers compensation act is upheld.

Patrick Shelson injured a hand at work, and his doctor did not release him to return to work as quickly as his employer demanded.  When the employer threatened Shelson with "consequences" if he didn't return to work early, Shelson told co-workers he'd sue if the boss followed through on his threat.  The boss then fired Shelson for threatening suit.  Shelson obtained a judgment against his employer, Schmidt Industries, Inc., which was upheld in the Court of Appeals.  One of the boss's complaints was that his earlier admission of a willingness to commit perjury was admitted into evidence.  Sounds like this guy did Shelson a favor by easing him out of his employment with such a jerk.

"Hostile work environment" claims against Costco are upheld for nominal damages

Six black employees sued Costco alleging a hostile work environment existed in the warehouse where they worked.  After a mistrial in their first trial, three of the six employees secured unanimous verdicts, although none prevailed on their illegal termination claims.  All parties appealed, and the Sixth Circuit threw out the award of damages for emotional distress, holding that such damages are not properly recoverable under the law.  The dissent strongly disagreed with the majority's conclusions and that these conclusions were dictated by existing precedent.

The case is Erica Betts, et al. v. Costco Wholesale Corporation.

Denial of ERISA long-term disability benefits was arbitrary and capricious

In DeLisle v. Sun Life Assurance Co. of Canada, the Sixth Circuit agreed with the Eastern District of Michigan trial judge in assessing the propriety of Sun Life's denial of long-term disability (LTD) payments to the Plaintiff.  The court concluded that her denial was not the result of a "deliberate and principled reasoning process".

Laid-off Sheriff's Department employee did not prove gender discrimination

In Syrowatka v. Washtenaw County, the Court of Appeals held that the plaintiff failed to prove that her lay-off was gender discrimination.  The court held that the plaintiff's one complaint about pay disparity two years earlier was not adequate to prove a retaliatory nexus. 

The appellate panel also held that evidence of discriminatory statements by the Sheriff and his alleged manipulation to eliminate her position were not adequate to establish illegal discrimination.  The Court pointed to an alleged workforce reduction caused by economic conditions, and held that the lapse of ten months between reassigning her and eliminating the new position rendered her discharge claim "speculative".  If the Sheriff was discriminating, he apparently covered his tracks adequately.

College employee fired when her suspicion of employer's action is unjustified

Talisha Winton believed that her boss was embezzling from Wayne State University.  She "blew the whistle", resulting in a police investigation, and ultimately the exoneration of her supervisor.  She apparently did not accept this outcome and was fired several months later for "continuing to spread rumors and false statements among the faculty."  The Court of Appeals noted that she was not disciplined for her original report, and ruled that her termination several months later, after she refused to accept the outcome of the resulting investigation, was not protected under the Whistleblowers' Protection Act.  You know the saying that can be adapted to this situation:  don't shoot at the boss unless you know you're aim is good.

Union member's employment case dismissed for failure to exhaust administrative remedies

Dale Abronowitz sued his employer, the City of Lansing, and his Union, UAW Local 2256, alleged violation of his rights under the collective bargaining agreement between the Union and the City.  The Court of Appeals  upheld the dismissal of his case because he had not follow-through on the administrative remedies available to him, and also had not presented evidence of pervasive hostility to his rights.  To justify side-stepping the administrative process, Abronowitz was required to prove that hostility to his rights permeated the entire internal appellate process.

Sixth Circuit recognizes that members of protected class, and their associates, are protected by Title VII

In Barrett v. Whirlpool, the Sixth Circuit held that Title VII protects not only the members of a class who had previously been discriminated against, but also the close associates of members of the class.  The Plaintiffs were caucasian employees of Whirlpool Corporation who alleged that they had suffered discrimination, retaliation or a hostile work environment as a result of their association with, and advocacy for, African-Americans.  The trial court had dismissed their claims, holding that since they were not members of the protected class, Title VII did not apply to them.  The Sixth Circuit held that federal law barred discrimination against these non-members of the protected class, as well as the members, and returned the case to the trial court to allow the plaintiffs an opportunity to prove their claims.

Wal-Mart admits illegal conduct once again?

Is it just us, or is there a multi-million dollar, enormous settlement that suggests an admission of wrong-doing by Wal-Mart every week?  This week, Bloomberg reported that Wal-Mart paid $17.5 million dollars [a small case by Wal-Mart standards] to settle claims that it discriminated against African-Americans in recruiting and hiring truck drivers. 

Belated complaint doesn't qualify as "whistle-blowing"

The Court of Appeals upheld the dismissal of Jennifer Gale's whistleblower complaint against her employer, MSU, despite her claim that she was discharged in retaliation for complaining about a clearly "sexual" condom story related to her by a co-worker.  The Court noted that Ms. Gale was a probationary employee and that she did not voice her complaint when the incident occurred, but rather brought it up after her immediate supervisor had already made the decision to terminate her employment due to friction with co-workers, and after the supervisor had begun compiling a list of justifications for not making her employment permanent.

Age discrimination claim sent to jury

The Sixth Circuit recently held that Jarrett Hamilton's age discrimination claim against General Electric should go to the jury for decision.  Judge Griffin dissenting, the panel reversed the trial court and reinstated the case to give Hamilton his "day in court".   Hamilton had worked for GE since 1974 with only three or four minor disciplinary issues prior to 2004.  He claimed that from 2004 on, however, the plant manager mounted a crusade to push him out, culminated in his firing in 2005 over a disputed lunch room incident.  The majority of the Court concluded that applying the proper legal standard, Hamilton's claim was viable if the jury accepted his version of the facts, and therefore the case should be decided by the jury and not by a judge.

Aunt-in-law gets you fired? You can sue her.

Renee Rudover discovered the only thing worse than a meddling mother-in-law is a meddling aunt-in-law.  Her aunt by marriage was a patient at the Neurosurgery Group, P.C., where Renee worked, and went to her doctor with complaints about Renee.  The doctor, a paragon of intestinal fortitude, apparently, asked the aunt to write down her complaints and then used the list to fire Renee for HIPAA violations, excessive cell phone use, misuse of lunch breaks (would that be eating breakfast instead of lunch, or what?   Leaving the premises?  Eating twinkies?) and "manipulating staff" to maintain her hours.  The Appellate Court reinstated Renee's claim against her husband's aunt for interfering with a business relationship, pointing out that the trial court had inappropriately resolved the credibility issue regarding the woman's complaints against Renee.

Fired employee can't sue community mental health employer

Nancy Bricker was considered partially responsible for a scalding hot shower that caused the death of a group home patient for the developmentally disabled.  Her employer, AuSable Valley CMH, fired her and a supervisor.  She filed suit against the employer and several individuals, claiming wrongful discharge and various theories of breach of public policy or intentional wrongdoing. 

Hair dresser's non-compete clause enforced

In Lockworks, Ltd. v. Keegan, the Court of Appeals reversed the lower court and reinstated a non-compete agreement which a stylist admitted violating. Keegan had agreed not to compete with her employer for one year, within a five-mile radius, however, after quitting with Lockworks, she started cutting hair 4.16 miles away.  The Court decided that she cut things too close.

Ledbetter bill passed by Congress

On January 27, Congress approved passage of a civil rights bill that will overturn the much-criticized 2008 decision of the U.S. Supreme Court in Ledbetter v. Goodyear.  That decision eliminated many discrimination claims before the victim was aware even became aware that an illegal action had been perpetrated.  Near the end of 2008, Congress passed another act, repudiating decisions by the Supreme Court which had greatly limited the breadth of the Americans with Disabilities Act.

Manager can be fired for failing to report intimate relationship with employee he supervised

This month, the Appellate Court upheld Home Depot's discharge of Chris Goodrich, a managerial employee, for failing to report that he had violated the employer's rule regarding reporting potential romantic relationships.  His situation is one textbook example of why the policy is not an infringement on employees' privacy. 

After Goodrich became romantically interested in a married employee under his supervision and went to her home to explore that interest, her husband showed up at the store to confront him.  At that point store managers became aware of the "potential" relationship, and confronted Goodrich, who indicated an intent to seek a PPO to deter the husband from contact.  Goodrich acknowledged the "potential" relationship and the employer terminated his employment the following week.  The Court held that Home Depot's actions did not violate the Bullard-Plawecki Employee Right to Know Act, because Goodrich's actions involved or implicated his employment duties as a supervisory employee.

Non-compete agreement is upheld

In Edwards Publications, Inc. v. Tracy Kasdorf, the Court of Appeals upheld the former employer's efforts to enforce a non-compete agreement against a former employee who was lured away by a direct competitor.  When reasonably limited in scope and duration, such agreements are enforceable in Michigan, particularly where the effect of violation, as here, is direct injury to the former employer's business through use of employment-acquired information and client contacts.

Woman's retaliation claim dismissed

A disappointing decision by the Court of Appeals this week dismissed the retaliatory firing claim of Martha Gullett against her employer, Autoform, Inc.  Ms. Gullett injured her hand while working as a press operator in 2002.  She returned to work after several months and in an attempt to accommodate her injury, she was assigned a job as a "checker" performing repetitive tasks. Over the following three years, she was forced to take additional time off with pain in the injured hand and ultimately her physician restricted her from working as a "checker" due to her "repetitive" use of the injured hand.  Her employer then discharged her upon the exhaustion of her rights under the Family Medical Leave Act. 

Worker who cooperates with internal investigation can sue over retaliation

The U.S. Supreme Court recently over-turned the Sixth Circuit Court of Appeals, holding that a school system employee could pursue her claim alleging a retaliatory firing.  The lower court had held that since she hadn't "blown the whistle" herself, Vicky Crawford could not avail herself of anti-retaliation provisions of Title VII.  She had cooperated with an internal investigation into improper behavior by the school district's employee relations director, only to find herself fired several months later.  Even the conservative Supreme Court found this holding unduly restrictive and contrary to the public policy intended by Congress, voting 9-0 to overturn the Sixth Circuit.