PHILADELPHIA - A Pennsylvania federal judge did not err when he dismissed deprivation of liberty and property interests claims brought by two former assistant football coaches against The Pennsylvania State University, a Third Circuit U.S. Court of Appeals panel ruled May 9 (Joseph V. Paterno, a/k/a Jay, et al. v. The Pennsylvania State University, No. 16-1720, 3rd Cir., 2017 U.S. App. LEXIS 8234).
PHOENIX - Applying the five-factor test set forth in Hummell v. S.E. Rykoff & Co., an Arizona federal judge on May 8 awarded $25,000 and interest for attorney fees and costs to a defined benefit retirement plan, less than 95 percent of what the plan was seeking, saying the plaintiff's claims under the Employee Retirement Income Security Act lacked merit (Maureen Terri Angichiodo v. Honeywell Pension and Savings Plan, et al., No. 15-00097, D. Ariz., 2017 U.S. Dist. LEXIS 69793).
WASHINGTON, D.C. - The portions of the Veterans Access, Choice and Accountability Act (Veterans Access Act) that prohibit review by the full Merit Systems Protection Board (MSPB) of the removal or transfer of senior executives are constitutionally flawed, a Federal Circuit U.S. Court of Appeals panel ruled May 9, severing those positions of the statute and leaving the remainder intact (Sharon M. Helman v. Department of Veterans Affairs, No. 2015-3086, Fed. Cir., 2017 U.S. App. LEXIS).
HARRISBURG, Pa. - While not uncontested, enough evidence supports a law judge's conclusion that an employee was both exposed to asbestos and other chemicals within the compensable period for a workers' compensation claim and that the exposure was significant enough to cause bladder cancer, a Pennsylvania appeals court held May 4 (Kimberly Clark Corp. v. Workers' Compensation Appeal Board, No. 656 C.D. 2016, Pa. Cmwlth., 2017 Pa. Commw. LEXIS 175).
CINCINNATI - Questions from two union representatives about a co-worker's willingness to testify regarding another worker's grievance was protected activity, a Sixth Circuit U.S. Court of Appeals panel ruled May 4, enforcing an order by the National Labor Relations Board (NLRB) (Roemer Industries, Inc. v. National Labor Relations Board, Nos. 15-1917/2109, 6th Cir., 2017 U.S. App. LEXIS 8089).
ST. PAUL, Minn. - The Eighth Circuit U.S. Court of Appeals on May 5 affirmed a trial court's ruling clearing Target Corp. and an independent contractor in a lawsuit filed by a former employee of the contractor, alleging national origin discrimination and a hostile work environment (Mazen Abdel-Ghani v. Target Corporation, No. 16-2395, Mazen Abdel-Ghani v. MarketSource, Inc., No. 16-2397, 8th Cir., 2017 U.S. App. LEXIS 7985).
SAN FRANCISCO - Under California's day of rest statutes, an employer may not force an employee to work seven days a week; however, an employee, fully apprised of his or her entitlement, is permitted to choose to work seven days a week, the California Supreme Court ruled May 8 (Christopher Mendoza v. Nordstrom, Inc., No. S224611, Calif. Sup., 2017 Cal. LEXIS 3171).
NEW YORK - Apportionment of liability between employers who exposed a man pursing a workers' compensation case is inappropriate where all the evidence leads one to conclude that he suffered from no symptoms or disease prior to his May 1999 pleural plaques diagnosis, a New York appeals court held May 4 (In the matter of the claim of Robert Manocchio v. ABB Combustion Engineering, et al., No. 522436, N.Y. Sup. App., 3rd Dept., 2017 N.Y. App. Div. LEXIS 3509).
DENVER - An employee who was fired following a breakdown and his refusal to return to his position failed to show that the limitations he suffered were caused by his depression, the 10th Circuit U.S. Court of Appeals ruled May 4, affirming a summary judgment ruling for the employer on the employee's Americans with Disabilities Act (ADA) discrimination claim (Steven W. Russell v. Phillips 66 Company, No. 16-5063, 10th Cir., 2017 U.S. App. LEXIS 7922).
CHICAGO - A school district that failed to find a new position for an assistant principal with medical restrictions that included minimal contact with students was not liable for disability discrimination because the employee was not the most qualified candidate for the only job that she was interested in that did not require being in the proximity of potentially unruly students, the Seventh Circuit U.S. Court of Appeals ruled May 4 (Sherlyn Brown v. Milwaukee Board of School Directors, No. 16-1971, 7th Cir., 2017 U.S. App. LEXIS 7958).
ST. LOUIS - An Eighth Circuit U.S. Court of Appeals panel on May 4 affirmed a Minnesota federal judge's dismissal of a couple's claim that they were improperly denied 24-hour in-home health care, saying that their group health care policy's private-duty nursing exclusion barred such coverage (Raleigh Spizman, et al. v. BCBSM Inc., No. 16-1557, 8th Cir., 2017 U.S. App. LEXIS 7917).
ST. LOUIS - A disability claimant is not barred from pursuing a claim for long-term disability (LTD) benefits because the claimant was not required to disclose the disability benefits claim as part of her assets in a bankruptcy case as the disability claim did not begin to accrue until after the bankruptcy case was filed, a Missouri federal magistrate judge said May 2 (Rochelle Byrd v. Wellpoint Flexible Benefit Plan, et al., No. 17-8, E.D. Mo., 2017 U.S. Dist. LEXIS 66460.
ORLANDO, Fla. - A Florida federal judge on May 3 granted a joint motion for approval and entry of consent decree under which an insurance brokerage firm will pay $100,000 to settle a pregnancy discrimination lawsuit filed by the Equal Employment Opportunity Commission (United States Equal Employment Opportunity Commission, et al. v. Brown & Brown of Florida, Inc., No. 16-1326, M.D. Fla.).
NEW ORLEANS - A trial court must further examine an employer's privilege log in a bias suit brought by the Equal Employment Opportunity Commission as the employer has failed to establish that the 278 entries were protected under the attorney-client privilege, a Fifth Circuit U.S. Court of Appeals panel ruled May 4, vacating the trial court's judgment (Equal Employment Opportunity Commission v. BDO USA, L.L.P., No. 16-20314, 5th Cir., 2017 U.S. App. LEXIS 7965).
CINCINNATI - A district court did not err in finding that a disability insurer's denial of long-term disability (LTD) benefits was reasonable because the denial is supported by substantial evidence, the Sixth Circuit U.S. Court of Appeals said May 2 (Stanley D. Rothe v. Duke Energy Long Term Disability Plan, et al., No. 16-4225, 6th Cir., 2017 U.S. App. LEXIS 7904).
SYRACUSE, N.Y. - A New York federal judge on May 1 granted three of four motions to dismiss filed by a wholesale supply company that a pension fund says is obligated to pay withdrawal liability for a bankrupt company whose assets it purchased, saying that claims of evading or avoiding liability, common control liability and joint employer liability fail (New York State Teamsters Conference Pension and Retirement Fund, et al. v. C&S Wholesale Grocers Inc., No. 5:16-cv-84, N.D. N.Y., 2017 U.S. Dist. LEXIS 65505).
WASHINGTON, D.C. - An employer acted within its right when it suspended contributions to three out of four health benefit and pension trusts after a collective bargaining agreement (CBA) expired because the subscription agreements clearly allowed for that; however, it violated the National Labor Relations Act (NLRA) when it suspended contributions to a fourth trust that did not contain such an agreement and when it unilaterally imposed its medical plan, a District of Columbia Circuit U.S. Court of Appeals panel ruled May 2 (Oak Harbor Freight Lines, Inc. v. National Labor Relations Board, No. 14-1226, D.C. Cir., 2017 U.S. App. LEXIS 7723).
PASADENA, Calif. - The Ninth Circuit U.S. Court of Appeals on April 27 ruled that a business liability insurer has a duty to indemnify its insured for prejudgment interest on underlying damages for breach of contract and underlying attorney fees and costs attributable to California Labor Code claims brought by a former employee, reversing and vacating in part and remanding for further proceedings (Michael Feiz Medical Corp. v. Scottsdale Insurance Co., No. 15-56652, 9th Cir., 2017 U.S. App. LEXIS 7495).
NEW YORK - A New York federal judge on April 28 awarded more than $705,000 in attorney fees for class counsel who settled a wage-and-hour class dispute, nearly $389,000 less than counsel was seeking, but conditioned the award on paying to class members approximately $131,000 that would have, under the reversionary nature of the settlement, been returned to the defendant (Margaret McGreevy, et al. v. Life Alert Emergency Response, Inc., No. 14-7457, S.D. N.Y., 2017 U.S. Dist. LEXIS 65085).
NEW ORLEANS - A divided Fifth Circuit U.S. Court of Appeals in a 7-7 vote on April 28 denied a petition for rehearing en banc in an appeal by Bass Pro Outdoor World LLC and Tracker Marine Retail LLC (collectively, Bass Pro) that the court notes is one of "first impression" in that circuit, concerning whether the Equal Employment Opportunity Commission can bring a "pattern or practice" case under Sections 706 and 707 of Title VII of the Civil Rights Act of 1964 asserting the violation of the rights of 50,000 job applicants (Equal Employment Opportunity Commission v. Bass Pro Outdoor World, L.L.C., et al., No. 15-20078, 5th Cir., 2017 U.S. App. LEXIS 7628).
PHILADELPHIA - On April 27, a Pennsylvania federal judge presiding over a suit brought by a nationwide class of former sales agents accusing Allstate Insurance Co. and its president of age discrimination and violating the Employee Retirement Income Security Act ruled that Allstate did not violate ERISA's anti-cutback rules when it eliminated an early retirement subsidy known as the "beef-up" because it had offered plan participants the greater of two alternatives with a baseline of their beef-up subsidy as of the time of the amendment (Gene R. Romero, et al. v. Allstate Insurance Company, et al., No. 01-3894, consolidated with No. 01-6764, 03-6872, 15-1017, 15-1049. 15-1190, 15-2602, 15-2961, 15-3047, E.D. Pa., 2017 U.S. Dist. LEXIS 64150).
SAN DIEGO - A California federal judge on April 26 rejected a $2 million amended settlement proposed by Costco Wholesale Corp. to end truck drivers' wage claims, finding that the amended settlement motion corrected certain shortcomings identified by the judge in her Feb. 22 denial of the original proposed settlement, but still contained inadequate release language (Douglas Thompson, et al. v. Costco Wholesale Corporation, et al., No. 14-2778, S.D. Calif., 2017 U.S. Dist. LEXIS 63504).
FORT WAYNE, Ind. - An Indiana federal judge on April 26 certified a class of insurance company employees who claim that their paid time off (PTO) was accrued at the beginning of each calendar year, but was improperly docked if they took short-term leave during the year (Gretchen B. Carrel, et al. v. MedPro Group, Inc., No. 16-130, N.D. Ind., 2017 U.S. Dist. LEXIS 62969).
LOS ANGELES - After finding that an advertising firm's removal of a former employee's case asserting claims for wrongful termination and violation of California's unfair competition law (UCL) was not proper, a California federal judge on April 26 remanded the case to a state court (Annabel Hernandez v. YP Advertising and Publishing LLC, No. 16-9612, C.D. Calif., 2017 U.S. Dist. LEXIS 63485).
RICHMOND, Va. - A split Fourth Circuit U.S. Court of Appeals panel on April 28 affirmed a North Carolina federal judge's ruling that R.J. Reynolds Tobacco Co. (RJR) is not liable for losses suffered by its 401(k) retirement employee benefit plan after its 1999 decision to divest Nabisco stock from the plan because a prudent fiduciary would have made the same divestment decision at the same time and in the same manner (Richard G. Tatum, et al. v. RJR Pension Investment Committee, et al., No. 16-1293, 4th Cir., 2017 U.S. App. LEXIS 7561).