Avila v. Los Angeles Police Department

Police officer’s claim that the Los Angeles Police Department fired him in retaliation for testifying in a Fair Labor Standards Act lawsuit brought by a fellow officer was not precluded by the LAPD Board of Rights’ recommendation that he be terminated for insubordination in not claiming overtime. District court did not err in declining to give two special jury instructions, and special verdict questions tied to those instructions, stating that an employee who engages in protected activity is not insulated from adverse action for violating workplace rules.

To the extent the city was urging that it would have reached the same decision on terminating the officer in the absence of his testimony in the prior lawsuit, the district court was well within its discretion in refusing to give the instructions because the evidence did not support the same decision defense, nor did it support the city’s argument that the firing was based on the content of the officer’s testimony, and not on the mere fact that he had testified.

District court did not abuse its discretion in awarding attorney’s fees of nearly $600,000, where the court reduced counsel’s requested rate; eliminated administrative, clerical, and unproductive hours; deducted 30 percent of time with vague billing descriptions; and reduced the overall amount by 10 percent to account for time "expended on the failed claims." Court did not abuse its discretion in awarding liquidated damages to compensate plaintiff "for a delay in payment of wages owed" as well as to "provide an incentive for future employees to report wage and hour violations by their employers."

     Avila v. Los Angeles Police Department - filed July 10, 2014

     Cite as 2014 S.O.S. 12-55931

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Lawsuit alleges Wynn Elementary staff bullied girl, 10, for being black

Las Vegas Sun

By Ana Ley (contact) 

Wednesday, July 9, 2014 | 2 a.m.

Wynn Elementary administrators bullied and berated a 10-year-old student out of prejudice for being black, a lawsuit filed in federal court alleges.

The suit, filed July 3 by the girl's mother, Sheena Hathorn, accuses the Clark County School District, Wynn principal Ellen Bordinhao and Superintendent Pat Skorkowsky of civil rights violations, discrimination, and negligent hiring and training of employees. Hathorn seeks a jury trial and at least $50,000 in damages or "an amount adequate to punish the wrongdoers and deter future misconduct."

School district officials declined to comment, citing pending litigation.

The child, who has turned 11 since the alleged abuse began to take place, was first targeted during a school field trip Oct. 31, 2012, when another child accused her of rough play, according to the suit. A woman identified only as Megan — one of four chaperones watching over 60 children on the trip — reportedly asked the other child who pushed her, and the girl pointed in a general direction to the top of a slide where several youngsters had gathered.

Megan allegedly began to scream at Hathorn's daughter, causing her to cry, even though the girl denied pushing another child and there was no way of knowing who had done it, said Hathorn, who was on the playground at the time of the incident.

Hathorn works part time for the Clark County School District as a program assistant, records show.

Days after the incident, Hathorn said she tried reaching out to school district officials to learn more about Megan, but the staff did not know the woman's last name and identified her only as a family friend of a teacher.

Hathorn filed a bullying report and Clark County officials subsequently interviewed her daughter alone during a so-called counseling session, according to the suit.

"Shockingly, when Sheena requested information regarding the unauthorized counseling session, (officials) refused to inform Sheena regarding the session as if (the child) requested the counseling session of her own volition," the suit says. "Most importantly, upon information and belief, that the school refuses to reveal the contents of the session because during that session (the child) made clear she believed she was being yelled (at) and berated because she is African-American, one of the few African-American(s) enrolled at Wynn."

Attorneys Patrick Kang and Erica Loyd, who filed the suit on behalf of Hathorn, called the district's conduct malicious and predatory.

Hathorn's complaint comes less than three months after a pair of families sued the district for allegedly failing to protect their children from chronic taunting by other students. One of the families said their son considered taking his own life because of the bullying.

The district has faced harsh criticism from Clark County parents and the American Civil Liberties Union,which filed the April 29 complaint on behalf of the two families, since a 13-year-old student at White Middle School committed suicide in December and left a farewell note tying her death to bullying.

The earlier lawsuit calls for changes in district policy, unspecified damages and a jury trial.

School District officials have since formed a task force to address bullying issues. The task force reviews district policies and state laws regarding bullying. It recommends policy and legislative changes.

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Dilts v. Penske Logistics, LLC

California’s meal and rest break laws, as applied to motor carriers, were not "related to" defendants’ prices, routes, or services, and therefore they were not preempted by the Federal Aviation Administration Authorization Act of 1994.

     Dilts v. Penske Logistics, LLC - filed July 9, 2014

     Cite as 2014 S.O.S. 12-55705

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Man gets $100,000 in OSHA whistleblower lawsuit

Posted: Monday, July 7, 2014 1:37 pm

Associated Press | 

PITTSBURGH (AP) — A Pittsburgh-area company that operates an industrial park and intermodal terminal has agreed to pay $100,000 to settle a whistleblower suit filed by the federal Occupational Safety and Health Administration. OSHA sued last year on behalf of former employee Andrew Dorsey. Dorsey claimed he was suspended for allegedly damaging a skid loader while plowing snow, so he complained to OSHA about workplace safety at McKees Rocks Industrial Enterprises. That prompted an OSHA inspection and Dorsey was fired a week later. OSHA then sued the company and its president, James Lind. An attorney for Lind and the industrial company did not immediately return a call seeking comment after the settlement was filed in federal court on Monday. The company must also remove disciplinary actions from Dorsey's file and give him a neutral reference for future jobs.

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Paratransit, Inc. v. Unemployment Insurance Appeals Board (Medeiros)

Employee who refused his employer's repeated orders to sign a written disciplinary notice because he disputed the notice's factual allegations and thought he was entitled to consult with his union representative first was lawfully terminated for insubordination, but the refusal to sign was not misconduct within the meaning of Labor Code Sec. 1256 but was, at most, a good faith error in judgment that did not disqualify him from unemployment benefits.

     Paratransit, Inc. v. Unemployment Insurance Appeals Board (Medeiros) - filed July 3, 2014

     Cite as 2014 S.O.S. 3399

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Salas v. Sierra Chemical Co

Senate Bill No. 1818, which extends state law employee protections and remedies to all workers "regardless of immigration status," is not preempted by federal immigration law except to the extent it authorizes an award of lost pay damages for any period after the employer’s discovery of an employee’s ineligibility to work in the United States. Doctrines of after-acquired evidence and unclean hands are not complete defenses to a worker’s claims under California’s Fair Employment and Housing Act, although they do affect the availability of remedies. FEHA generally will not permit a plaintiff to recover damages incurred after the employer learned of facts that would have resulted in lawful termination, and a trial court may consider unclean hands in fashioning an equitable remedy.
     Salas v. Sierra Chemical Co. - filed June 26, 2014
     Cite as 2014 S.O.S. 3235
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Fifth Third Bancorp v. Dudenhoeffer

Employee Stock Ownership Plan fiduciaries are not entitled to any special presumption of prudence with respect to investment decisions. They are subject to the same duty of prudence that applies to ERISA fiduciaries in general under 29 U.S.C. Sec. 1104(a)(1)(B), except that they need not diversify the fund’s assets as provided by Sec. 1104(a)(2). Whether a complaint--alleging that ESOP fiduciaries breached their duties of prudence--states a claim must be determined by applying the "plausibility" standard of pleading discussed in Ashcroft v. Iqbal, 556 U. S. 662. Where a stock is publicly traded, allegations that a fiduciary should have recognized on the basis of publicly available information that the market was overvaluing or undervaluing the stock are generally implausible and thus insufficient to state a claim. A complaint for breach of the duty of prudence must plausibly allege an alternative action that the defendant could have taken, that would have been legal, and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.
     Fifth Third Bancorp v. Dudenhoeffer - filed June 25, 2014
     Cite as 2014 S.O.S. 12-751_d18e

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