DENVER - A woman's ERISA suit seeking $377,233.50 for multilevel fusion surgery fails, first because the doctor who performed the procedure failed to exhaust administrative remedies and because the insured has not shown that her insurer erred in denying coverage sought by other doctors, a federal magistrate judge in Colorado held Nov. 30 in recommending dismissal of the suit (Rebecca Concilio v. Cigna Health and Life Insurance Co., No. 16-1863, D. Colo.).
CINCINNATI - An employee who was suspended after allegedly threatening his supervisor failed to show that the employer's given reason was pretextual and that the real reason was because of his religious beliefs that prevented him from working on Saturdays, his degenerative joint disease and an earlier retaliation claim he filed with the Equal Employment Opportunity Commission, a Sixth Circuit U.S. Court of Appeals panel ruled Dec. 1 (Clayton Pierce v. General Motors LLC, et al., No. 16-2748, 6th Cir., 2017 U.S. App. LEXIS 24344).
LEXINGTON, Ky. - A Kentucky federal judge on Nov. 28 determined that a plaintiff's claim for negligence per se for the practice of medicine without a license based on a defendant's certification of information about the plaintiff's disability without approval from the plaintiff's doctor is preempted by the Employee Retirement Income Security Act and must be dismissed (Mark Morcus v. Medi-Copy Services Inc., et al., No. 17-229, E.D. Ky., 2017 U.S. Dist. LEXIS 195485).
RICHMOND, Va. - An airline ground control agent, who was already on the final level of discipline and contributed to a communication breakdown that led to the overbooking of a plane and resulting delay, was unable to show that his termination was due to age or race discrimination, a Fourth Circuit U.S. Court of Appeals panel ruled Nov. 28 in an unpublished opinion (Michael Tillery v. Piedmont Airlines, Inc., No. 16-2225, 4th Cir., 2017 U.S. App. LEXIS 24074).
NEW ORLEANS - A landscaping supervisor who alleges that he was terminated after alleging that he was shorted pay failed to show that he engaged in any activities protected by Title VII of the Civil Rights Act of 1964, a Fifth Circuit U.S. Court of Appeals panel ruled Nov. 28, affirming the summary judgment ruling for the employer (Derrick Allen v. Envirogreen Landscape Professionals, Incorporated, No. 16-31247, 5th Cir., 2017 U.S. App. LEXIS 23987).
WASHINGTON, D.C. - A retiree seeking reinstatement of his terminated health benefits under the Employee Retirement Income Security Act and asking the U.S. Supreme Court to decide a forum-selection dispute is not likely to have his petition for writ of certiorari granted and so no stay should be issued pausing the district court proceedings, the retiree's former employer, Caterpillar Inc., argues in its opposition to application to stay filed Nov. 29 in the U.S. Supreme Court (George W. Mathias v. United States District Court for the Central District of Illinois, et al., No. 17-740, U.S. Sup.).
SACRAMENTO, Calif. - A Sacramento fulfillment center for Amazon.com regularly schedules employees to work shifts that are 10 hours or longer and fails to provide the workers with pay for their entire shifts and a third rest break, one of the employees alleges in a class complaint filed Nov. 27 in the Sacramento County Superior Court, alleging various state law violations, including violation of the unfair competition law (UCL) (Romeo Palma, et al v. Golden State FC, LLC dba Amazon.com, et al., No. 34-2017-00222744-CU-OE-GDS, Calif. Super., Sacramento Co.).
WASHINGTON, D.C. - The U.S. Department of Labor (DOL) announced on Nov. 27 an 18-month extension of the special transition period for the Fiduciary Rule's Best Interest Contract Exemption and the Principal Transactions Exemption as well as the applicability of certain amendments to Prohibited Transaction Exemption 84-24.
SAN FRANCISCO - A California federal magistrate judge on Nov. 27 granted preliminary approval of a $5.6 million settlement to be paid by two of three joint employers to end wage-and-hour claims brought by a class of workers, finding the settlement terms fair and reasonable and free of obvious deficiencies (Earl Fronda v. Staffmark Holdings, Inc., et al., No. 15-2315, N.D. Calif., 2017 U.S. Dist. LEXIS 194514).
NEW YORK - A New York federal judge on Nov. 27 granted a motion for class certification filed by plaintiffs alleging that a retirement plan's administrative and investment committees breached their fiduciary duties by selecting company-affiliated mutual funds as plan investments rather than other better-performing mutual funds after determining that the plaintiffs established the requirements necessary for class certification (Marya J. Leber v. Citigroup, Inc., et al., No. 07-9329, S.D. N.Y., 2017 U.S. Dist. LEXIS 194293).
WASHINGTON, D.C. - In a Nov. 27 response brief, a pension plan participant urges the U.S. Supreme Court to deny a petition for writ of certiorari filed by a group of affiliated brokers who manage funds on behalf of the pension plan on the basis that the Second Circuit U.S. Court of Appeals correctly found that the plan participant has standing to sue on behalf of himself, his pension plan and other similarly situated Employee Retirement Income Security Act plans over alleged improper fiduciary conduct (Convergex Group LLC, et al. v. Landol Fletcher, No. 17-343, U.S. Sup.).
WASHINGTON, D.C. - The statutory definition of whistleblower applies to the anti-retaliation provision of the Dodd-Frank Act, Kannon K. Shanmugam of Williams & Connolly in Washington, counsel for Digital Realty Trust Inc., told the U.S. Supreme Court justices during oral argument on Nov. 28 (Digital Realty Trust Inc. v. Paul Somers, No. 16-1276, U.S. Sup.).
SAN DIEGO - A California federal judge on Nov. 21 declined to dismiss a class suit challenging Starbucks Corp.'s meal break practice despite a months-long delay in serving the summons on the defendant, finding that the delay was not so long as to warrant dismissal (Kileigh Carrington, et al. v. Starbucks Corporation, et al., No. 16-3074, S.D. Calif., 2017 U.S. Dist. LEXIS 192892).
PHILADELPHIA - The Third Circuit U.S. Court of Appeals on Nov. 24 affirmed a lower federal court's finding that the former employee of the University of Pittsburgh Medical Center cannot recover pension benefits under the Employee Retirement Income Security Act because he sought benefits under a top-hat plan, rejecting the appellant's argument that plan participant bargaining power is a substantive element of a top-hat plan (Paul F. Sikora v. UPMC, et al., No. 17-1288, 3rd Cir., 2017 U.S. App. LEXIS 23796).
WASHINGTON, D.C. - The U.S. Supreme Court on Nov. 27 denied a petition for writ of certiorari filed by a widow seeking to have the high court reverse a determination that she was not entitled to the proceeds of a life insurance policy issued to her husband by his former employer, Wal-Mart Stores Inc. (Kimberly D. Hendrix v. Wal-Mart Stores, Incorporated, et al., No. 17-488, U.S. Sup.).
WASHINGTON, D.C. - The U.S. Supreme Court on Nov. 27 denied a petition for writ of certiorari filed by a pro se petitioner who claims that the Ninth Circuit U.S. Court of Appeals' "oral screening" process for handling pro se and other appeals breaches the Employee Retirement Income Security Act (Sally Gillette v. The Wilson Sonsini Group Welfare Benefit Plan, et al., No. 17-559, U.S. Sup.).
PITTSBURGH - A Pennsylvania pain management and weight loss services provider has been ordered to pay $55,000 in the Equal Employment Opportunity Commission's first sexual orientation discrimination lawsuit, the EEOC announced Nov. 27 (U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, P.C., No. 16-225, W.D. Pa., 2017 U.S. Dist. LEXIS 189577).
WASHINGTON, D.C. - The U.S. Supreme Court on Nov. 27 denied a petition for writ of certiorari filed by retirees representing a class of approximately 2,900 individuals and seeking to reverse a decision by the Sixth Circuit U.S. Court of Appeals, which held that a series of collective bargaining agreements (CBAs) did not provide retired employees of an employer and its predecessors with a vested right to lifetime health care benefits (Robert Cole, et al. v. Meritor, Inc., et al., No. 17-413, U.S. Sup.).
LOS ANGELES - After finding that an agreement to arbitrate an employment dispute in Hong Kong involved a forum that is no longer available, a California federal judge on Nov. 17 refused to compel arbitration of the dispute (Alexander Mirza v. Cachet Hotel Group Limited Cayman L.P., et al., No. 2:17-CV-07140, C.D. Calif., 2017 U.S. Dist. LEXIS 190833).
SAN FRANCISCO - A disability plan administrator did not abuse its discretion in offsetting a claimant's long-term disability (LTD) benefits to account for Social Security disability income (SSDI) benefits that she receives for her dependents, the Ninth Circuit U.S. Court of Appeals said Nov. 17 in affirming a district court's ruling for the plan (Susan Rene Jones v. Life Insurance Company of North America, et al., No. 16-16172, 9th Cir., 2017 U.S. App. LEXIS 23244).
ATLANTA - The 11th Circuit U.S. Court of Appeals on Nov. 17 remanded a disability claimant's suit after determining that a district court erred in granting summary judgment in favor of the insurer because genuine issues of material fact exist regarding the cause of the claimant's disability and whether the plan's pre-existing conditions exclusion applies (Kristian Horneland v. United of Omaha Insurance Co., No. 16-16935, 11th Cir., 2017 U.S. App. LEXIS 23129).
SACRAMENTO, Calif. - A California federal judge on Nov. 16 remanded an insured's claim seeking coverage for almost $500,000 incurred for the transport of her daughter from a hospital in Mexico to a hospital in Seattle by air ambulance because the plan administrator did not consider all of the available information before denying the claim on the basis that the air transport was not for an emergency (Aviation West Charters LLC, d/b/a Angel Medflight v. UnitedHealthcare Insurance Co., No. 16-436, E.D. Calif., 2017 U.S. Dist. LEXIS 190114).
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on Nov. 17 affirmed a merit system board's decision to suspend a former employee for failure to use his government purchase credit card to make work-related purchases, finding that the employee's protected disclosures did not have an effect on the board's decision to suspend him (Rick D. Salerno v. Department of the Interior, No. 2017-1145, Fed. Cir., 2017 U.S. App. LEXIS 23137).
SAN FRANCISCO - A California appeals court on Nov. 15 found that an employee's claims for violation of the California Labor Code and California's unfair competition law (UCL) were excluded from a mandatory arbitration provision, affirming a court's decision refusing to compel arbitration of the claims (Christopher Silva v. Fry's Electronics Inc., No. A146622, Calif. App., 1st Dist., Div. 4, 2017 Cal. App. Unpub. LEXIS 7875).
CHICAGO - The owner of assisted living facilities violates the Illinois' Biometric Information Privacy Act (BIPA) by collecting biometric data, one former employee alleges in a class complaint filed Nov. 14 in the Cook County, Ill., Circuit Court (Jonnae Taylor, et al. v. Sunrise Senior Living Management, Inc., et al., No. 2017-CH-15152, Ill. Cir., Cook Co., Chancery Div.).