The panel affirmed the district court’s order denying qualified immunity to defendant Nevada Highway Patrol Major Kevin Tice and granting partial summary judgment to appellant, a Nevada Highway Patrol officer, in an action brought pursuant to 42 U.S.C. § 1983 asserting that a Nevada Highway Patrol policy, announced in an email sent by defendant Tice, violated the First Amendment.
This action arose from a dispute regarding the management of the Nevada Highway Patrol canine drug detection unit. Plaintiffs alleged that certain Nevada Highway Patrol officers sought to undermine the effectiveness of the K9 program, and that the policy announced by Tice, prohibiting officers from discussing the program with any non-departmental entity or person, was designed to prevent officers from making the problems in the K9 program known to the public.
The panel held that sweeping policy imposed by Tice’s email violated the First Amendment. The policy covered speech undertaken outside the officers’ official duties and on matters of public concern. The panel held that Tice had failed to show any past disruptions sufficient to justify the expansive policy, nor did he demonstrate that any harms anticipated were real, not merely conjectural. The panel further held that it was clearly established in 2011, when Tice sent the email, that such a broad restriction on employee speech could not survive First Amendment scrutiny. Accordingly, Tice was not entitled to qualified immunity.
The panel affirmed the district court’s grant of partial summary judgment to appellant on the First Amendment claim after concluding that the relevant facts were not in dispute and the legal issues were identical to those raised in the qualified immunity analysis.
For More Information contact us at:
http://beverlyhillsemploymentlaw.com/
Monday, September 18, 2017
Stoetzl v. State of California
Plaintiffs are current and former correctional peace officers who work or worked at various state correctional facilities. They brought these coordinated class actions alleging they were improperly denied pay for time they spent under their employer’s control before and after their work shifts. Ruling that plaintiffs’ entitlement to overtime pay is controlled by federal, rather than California, law, the trial court entered judgment for defendants. We shall reverse the judgment in part as to the subclass of unrepresented employees and affirm as to the subclass of represented employees.
For more information visit us at:
http://beverlyhillsemploymentlaw.com/
For more information visit us at:
http://beverlyhillsemploymentlaw.com/
Cortez v. Doty Bros. Equipment Co.
Gabriel Cortez sued his former employer Doty Bros. Equipment Company for Labor Code and wage and hour violations on behalf of himself and a putative class of employees and former employees. Cortez’s complaint included a related representative claim under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). On September 19, 2014 the superior court granted Doty Bros.’ petition to compel arbitration of Cortez’s individual claims pursuant to an arbitration provision in the collective bargaining agreement (CBA) governing his employment and severed and stayed his PAGA claim, which was not subject to arbitration. The court reserved questions concerning the arbitrability of the class claims for the arbitrator. On November 19, 2014 we summarily denied Cortez’s petition for a writ of mandate challenging the court’s order compelling arbitration.
Cortez and Doty Bros. then stipulated to allow the superior court, rather than the arbitrator, to determine the arbitrability of the class claims. On March 23, 2015, after substantial briefing and a hearing on this question, the court dismissed the class claims as unauthorized under the CBA. On April 1, 2015 Cortez filed a notice of appeal purporting to appeal from the March 23, 2015 order dismissing his class claims and the September 19, 2014 order compelling arbitration of his individual claims. Cortez argued in his appellate briefs that this court had jurisdiction to review both rulings under the death knell doctrine.
While Cortez’s appeal was pending, the appellate courts in Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 310 (Munoz) and Miranda v. Anderson Enterprises, Inc. (2015) 241 Cal.App.4th 196, 201-202 (Miranda) held the death knell doctrine did not apply to the denial of class certification or dismissal of class claims while a plaintiff’s PAGA claim remained pending in the trial court. Concerned about the viability of his initial appeal, Cortez voluntarily dismissed his PAGA claim with prejudice on March 30, 2016 and filed a second notice of appeal on May 20, 2016, again identifying the September 19, 2014 order compelling arbitration and the March 23, 2015 order dismissing all class claims as the orders subject to appellate review. We consolidated the two appeals.
Cortez contends this court has jurisdiction under the death knell doctrine to review the March 2015 dismissal of his class claims either because the outstanding PAGA claim did not defeat that order’s appealability under the death knell doctrine or because he removed any bar to appellate jurisdiction when he dismissed his PAGA claim in March 2016 and filed a new notice of appeal. Cortez also contends the September 2014 order compelling arbitration is an interim order affecting the class’s substantial rights and thus is reviewable on appeal from the order dismissing the class claims under Code of Civil Procedure section 906. Alternatively, he requests we treat his consolidated appeal as a petition for writ of mandate, revisit our summary denial of his prior writ petition and address the merits of both the court’s order compelling arbitration of his individual claims and the dismissal of his class claims.
On the merits Cortez argues his statutory claims were not encompassed by the terms of the arbitration agreement in the CBA and, even if they were, the court erred in dismissing the class claims because the right to pursue collective action—including prosecution of a class action in an arbitral forum—is a nonwaivable protected right under the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.).
Although not fully identified by the parties in their briefs, Cortez’s appeal poses several difficult jurisdictional questions, in particular, the effect of Cortez’s dismissal of his PAGA claim on the appealability of the earlier order dismissing the class claims, including whether a plaintiff’s voluntary action can create an appealable order under the death knell doctrine and whether the second notice of appeal from an order entered more than a year before was timely; and the applicability of Code of Civil Procedure section 906 to an order made appealable under the judicially created death knell doctrine rather than pursuant to Code of Civil Procedure section 904.1. We resolve none of those issues. Rather, in light of the uncertainty of the appealability of the orders challenged by Cortez and the absence of any delay or prejudice our intervention at this stage would cause, we find this an appropriate case in which to exercise our discretion to treat the consolidated appeal as a petition for writ of mandate and reach the merits of the superior court’s orders compelling arbitration of Cortez’s individual claims and terminating the class claims.
We grant Cortez’s petition in part, finding Cortez’s cause of action under the Labor Code for Doty Bros.’ failure to timely pay wages upon his separation from employment (Lab. Code, § 203) (sixth cause of action) and his unfair competition action based on that alleged statutory violation (Bus. & Prof. Code, § 17200) (seventh cause of action) are not encompassed by the arbitration provision in the CBA. In all other respects, we deny the petition, concluding the remaining causes of action are subject to arbitration, and the court’s termination of class claims proper on the ground the CBA does not authorize classwide arbitration.
Cortez and Doty Bros. then stipulated to allow the superior court, rather than the arbitrator, to determine the arbitrability of the class claims. On March 23, 2015, after substantial briefing and a hearing on this question, the court dismissed the class claims as unauthorized under the CBA. On April 1, 2015 Cortez filed a notice of appeal purporting to appeal from the March 23, 2015 order dismissing his class claims and the September 19, 2014 order compelling arbitration of his individual claims. Cortez argued in his appellate briefs that this court had jurisdiction to review both rulings under the death knell doctrine.
While Cortez’s appeal was pending, the appellate courts in Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 310 (Munoz) and Miranda v. Anderson Enterprises, Inc. (2015) 241 Cal.App.4th 196, 201-202 (Miranda) held the death knell doctrine did not apply to the denial of class certification or dismissal of class claims while a plaintiff’s PAGA claim remained pending in the trial court. Concerned about the viability of his initial appeal, Cortez voluntarily dismissed his PAGA claim with prejudice on March 30, 2016 and filed a second notice of appeal on May 20, 2016, again identifying the September 19, 2014 order compelling arbitration and the March 23, 2015 order dismissing all class claims as the orders subject to appellate review. We consolidated the two appeals.
Cortez contends this court has jurisdiction under the death knell doctrine to review the March 2015 dismissal of his class claims either because the outstanding PAGA claim did not defeat that order’s appealability under the death knell doctrine or because he removed any bar to appellate jurisdiction when he dismissed his PAGA claim in March 2016 and filed a new notice of appeal. Cortez also contends the September 2014 order compelling arbitration is an interim order affecting the class’s substantial rights and thus is reviewable on appeal from the order dismissing the class claims under Code of Civil Procedure section 906. Alternatively, he requests we treat his consolidated appeal as a petition for writ of mandate, revisit our summary denial of his prior writ petition and address the merits of both the court’s order compelling arbitration of his individual claims and the dismissal of his class claims.
On the merits Cortez argues his statutory claims were not encompassed by the terms of the arbitration agreement in the CBA and, even if they were, the court erred in dismissing the class claims because the right to pursue collective action—including prosecution of a class action in an arbitral forum—is a nonwaivable protected right under the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.).
Although not fully identified by the parties in their briefs, Cortez’s appeal poses several difficult jurisdictional questions, in particular, the effect of Cortez’s dismissal of his PAGA claim on the appealability of the earlier order dismissing the class claims, including whether a plaintiff’s voluntary action can create an appealable order under the death knell doctrine and whether the second notice of appeal from an order entered more than a year before was timely; and the applicability of Code of Civil Procedure section 906 to an order made appealable under the judicially created death knell doctrine rather than pursuant to Code of Civil Procedure section 904.1. We resolve none of those issues. Rather, in light of the uncertainty of the appealability of the orders challenged by Cortez and the absence of any delay or prejudice our intervention at this stage would cause, we find this an appropriate case in which to exercise our discretion to treat the consolidated appeal as a petition for writ of mandate and reach the merits of the superior court’s orders compelling arbitration of Cortez’s individual claims and terminating the class claims.
We grant Cortez’s petition in part, finding Cortez’s cause of action under the Labor Code for Doty Bros.’ failure to timely pay wages upon his separation from employment (Lab. Code, § 203) (sixth cause of action) and his unfair competition action based on that alleged statutory violation (Bus. & Prof. Code, § 17200) (seventh cause of action) are not encompassed by the arbitration provision in the CBA. In all other respects, we deny the petition, concluding the remaining causes of action are subject to arbitration, and the court’s termination of class claims proper on the ground the CBA does not authorize classwide arbitration.
Diego v. City of Los Angeles
A city does not engage in unlawful discrimination by subjecting an officer involved in a fatal shooting to differential treatment because of political considerations stemming from the race of the victim.
Diego v. City of Los Angeles - filed Sept. 14, 2017, Second District, Div. One
Cite as 2017 S.O.S. 4644
For more information visit us at:
http://beverlyhillsemploymentlaw.com/
Diego v. City of Los Angeles - filed Sept. 14, 2017, Second District, Div. One
Cite as 2017 S.O.S. 4644
For more information visit us at:
http://beverlyhillsemploymentlaw.com/
Thursday, September 14, 2017
Hardie v. NCAA
The panel affirmed the district court’s summary judgment in favor of the National Collegiate Athletic Association (“NCAA”) in an action brought by Dominic Hardie, who is African-American, alleging that the NCAA’s policy of excluding anyone with a felony conviction from coaching at NCAA-certified youth athletic tournaments violated Title II of the Civil Rights Act of 1964. Title II of the Civil Rights Act of 1964 prohibits racial discrimination in places of public accommodation. The district court granted summary judgment for the NCAA on the ground that disparate-impact claims were not cognizable under Title II.
The panel did not decide whether Title II encompassed disparate-impact claims.
The panel held that even if disparate-impact claims were recognizable under Title II, Hardie had not shown that an equally effective, less discriminatory alternative theory to the NCAA’s felon-exclusion policy existed, as was required under the three-step analysis for disparate-impact claims set forth in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
Concurring in part and concurring in the judgment, District Judge Faber agreed with the court that under Title II, Hardie had not stated a cognizable claim. In his view, Title II’s text did not recognize disparate-impact liability, and the panel should have said so. Judge Faber also wrote that even if Title II had authorized disparate-impact liability, the business-necessity defense would immunize the NCAA’s policy; and the majority’s application of extraneous evidence was misplaced.
Hardie v. NCAA (9th Cir. 15-55576 9/11/17) Civil Rights Act/Title II/Disparate Impact in Coaching
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
The panel did not decide whether Title II encompassed disparate-impact claims.
The panel held that even if disparate-impact claims were recognizable under Title II, Hardie had not shown that an equally effective, less discriminatory alternative theory to the NCAA’s felon-exclusion policy existed, as was required under the three-step analysis for disparate-impact claims set forth in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
Concurring in part and concurring in the judgment, District Judge Faber agreed with the court that under Title II, Hardie had not stated a cognizable claim. In his view, Title II’s text did not recognize disparate-impact liability, and the panel should have said so. Judge Faber also wrote that even if Title II had authorized disparate-impact liability, the business-necessity defense would immunize the NCAA’s policy; and the majority’s application of extraneous evidence was misplaced.
Hardie v. NCAA (9th Cir. 15-55576 9/11/17) Civil Rights Act/Title II/Disparate Impact in Coaching
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
Wednesday, September 13, 2017
U.S. v. My Left Foot Children's Therapy
The plain language of an employee's agreement to arbitrate "all disputes that may arise out of the employment context"--including all disputes "based on the state employment statutes, Title VII of the Civil Rights Act of 1964, as amended, or any other state or federal law or regulation"--did not encompass the employee's False Claims Act action.
U.S. v. My Left Foot Children's Therapy - filed Sept. 11, 2017
Cite as 2017 S.O.S. 16-16070
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
U.S. v. My Left Foot Children's Therapy - filed Sept. 11, 2017
Cite as 2017 S.O.S. 16-16070
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
United Nurses Association of California v. National Labor Relations Board
No due process violation or bias can be inferred from an administrative law judge's adverse credibility determinations of an employer's witnesses, evidentiary rulings unfavorable to an employer, questioning of an employer's witnesses, and alleged expressions of impatience or anger. An employer impermissibly fired an employee for engaging in union organizing where the employer fired the worker after expressly authorizing him to engage in the conduct for which it fired him. It did not follow its own internal policies in terminating the worker, and it did not subject other workers to the same level of discipline for similar conduct. An employer cannot retroactively strip a worker of the protections of the National Labor Relations Act by promoting him to a supervisor position and then firing him for past protected activity done as an employee. An employer violated the NLRA by serving subpoenas on employees and their union seeking, confidential information about union activities, including communications with union representatives and signed authorization cards. The Noerr-Pennington doctrine did not shield an employer from liability for an unfair labor practice under the NLRA because its demands for employees' confidential information are not direct petitioning, and because its discovery requests were unlawful.
United Nurses Association of California v. National Labor Relations Board - filed Sept. 11, 2017
Cite as 2017 S.O.S. 15-70920
For more information visit us at:
http://beverlyhillsemploymentlaw.com/
United Nurses Association of California v. National Labor Relations Board - filed Sept. 11, 2017
Cite as 2017 S.O.S. 15-70920
For more information visit us at:
http://beverlyhillsemploymentlaw.com/
Subscribe to:
Posts (Atom)
Posts
