ADA Suit Denied Over Failure to Negotiate
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Pre-Sorted Standard U.S. Postage Paid Boston, MA Permit No. 55916 Electronic Service Requested Lawyers Weekly 10 Milk Street., 10th Floor Boston, MA 02108 New February 2015 England - - Vol. 13, No. 1 IN-HOUSE Baker Signet 42 = “New England” Utopia Black 89 points = “In-House” ‘Cat’s paw’ retaliation case fails at 1st Circuit Fired employee cannot prove unlawful animus By Eric T. Berkman An employee who was fired for timecard violations that he claimed were reported to management out of retaliatory animus could not sue his employer under a “cat’s paw” theory of liability, the 1st U.S. Circuit Court of Appeals has ruled. Under the “cat’s paw” theory, an employer who disciplines or fires a worker for legitimate reasons can still be held liable for discrimination WIKIPEDIA COMMONS or retaliation if the information the Kohl’s Department Stores can’t be held liable for failing to accommodate a diabetic sales associate’s request to decision-maker is acting on was work only a midday shift, the 1st Circuit rules in a split decision. provided for discriminatory or retaliatory reasons. ISTOCK In the case before the 1st Circuit, the plaintiff The plaintiff employee claimed that the supervisors who reported employee his timecard violations to an upper-level manager — claimed that ADA suit denied over who, in turn, made the decision to fire him — did the supervisors so because they resented that he took leave under who reported the Family and Medical Leave Act. Accordingly, the his timecard violations did so plaintiff argued, the defendant employer should be because they failure to negotiate held liable for FMLA retaliation. resented that he But the 1st Circuit disagreed, affirming a U.S. took leave un- District Court judge’s summary judgment for the der the FMLA. Kohl’s Department Stores not liable, 1st Circuit says defendant. Continued on page 11 By Thomas E. Egan an earnest attempt to discuss employee’s ADA rights forfeited other potential reasonable when she gives up,” he said. “Such A department store could accommodations,” Judge Juan R. a holding demands too much not be held liable for failing to Torruella wrote for the majority. resilience and persistence on the Co. waived arbitration accommodate a diabetic sales “[W]e conclude that [the part of a disabled and stressed-out associate’s request to work only a employee]’s refusal to participate employee, and takes away from midday shift, the 1st U.S. Circuit in further discussions with jurors a task they are well-suited with ‘litigation conduct’ Court of Appeals has ruled in a [the employer] was not a good- to perform.” split decision. By Brandon Gee her claims should be determined by faith effort to participate in an The 30-page decision isEqual The defendant employer the arbitrator. interactive process.” Employment Opportunity Com- argued that it complied with its A defendant corporation that Judge Kenneth W. Salinger Judge William J. Kayatta Jr. mission v. Kohl’s Department actively litigated its former CEO’s duty under the Americans with Stores, Inc. disagreed. Disabilities Act to engage in an dissented. lawsuit for six months could not Donna J. Brusoski of Virginia “The court finds that Arctic interactive process regarding “As best as I can tell, this is the then compel arbitration after its argued on behalf of the EEOC. Sand waived any contractual reasonable accommodations, but first time that any circuit court motion to dismiss was denied in Maine attorney Melinda J. right to arbitrate Dr. Shalaby’s that that the employee refused to has held that an employer can part, a Superior Court judge in claims by deliberately waiting Caterine represented the take part in that process. reject an accommodation request Massachusetts has found. six months before seeking to employer. A 2-1 majority of the 1st Circuit backed up by a doctor’s note, The defendant, Arctic Sand compel arbitration, and by actively refuse to offer an accommodation Technologies Inc., alleged a agreed. Shift request litigating the case in Superior Court “The refusal to give [the that it has determined it can contractual right to binding in the meantime,” the judge wrote. Pamela Manning, who suffers employee]’s specific requested make, falsely claim that any arbitration under its employment “It made no attempt to invoke from Type I diabetes, was accommodation does not accommodation must be offered agreement with plaintiff Nadia its alleged contractual right to employed as a full-time associate necessarily amount to bad faith, to all workers whether disabled Shalaby, and argued that any so long as the employer makes or not, and then declare the Continued on page 10 questions about the arbitrability of Continued on page 7 page 2 | New England IN-HOUSE | FEBRUARY 2015 Hearsay [email protected] alleges that he formed a partnership with the Winklevoss defendants and is entitled to 50 percent of the Facebook settlement. Alternatively, Chang double cross asserts that he is at least entitled to 15 percent of the proceeds based on a November 2004 Internet entrepreneurs Cameron and memorandum of understanding that gave Tyler Winklevoss have won a motion for him the option to exercise a 15 percent stake summary judgment in a multi-million-dollar in ConnectU if conditions were met. AP PHOTO/EVAN AGOSTINI Facebook-related lawsuit resulting from a CAMERON AND TYLER WINKLEVOSS soured collaboration. ConnectU itself also was originally To reach the decision, a Massachusetts named a defendant in the suit. In an April the case.” Billings, however, accepted the writes. “While they agreed on little else (who Superior Court judge, Thomas P. Billings, 2011 decision on the defendants’ motion to defendants’ characterization of the finding was at fault, who owed what to whom, etc.), created a small rift of his own with his dismiss, however, Judge Peter M. Lauriat as mere “footnoted dictum.” they clearly agreed that the venture was colleagues on the state’s Business Litigation noted that “because ConnectU is now wholly “Respectfully, I disagree with my colleague, over, and their conduct thereafter confirmed Session bench. owned by Facebook, Chang cannot recover the motion judge, on this point,” Billings it. Given the informality with which this Just as the Winklevoss twins famously from ConnectU. Rather, he would have to writes in the Dec. 24 order granting the partnership (if it was one) was administered claim that Facebook founder Mark recover from the Winklevoss defendants Winklevosses summary judgment. “… and accounted for, it should come as no Zuckerberg ripped off their ConnectU social a percentage of the settlement proceeds in Under the law of Delaware, where ConnectU surprise that both sides decided, eventually, network, plaintiff Wayne Chang proportion to his interest in ConnectU, as LLC was organized, members of an LLC are simply to walk away — at least, until the alleges that the Winklevosses cheated determined by a fact finder.” not obligated personally on the debts of the Facebook settlement.” him out of a stake in ConnectU — and At a hearing in February 2013, LLC ‘solely by reason of being a member Chang’s lawyer, Alan D. Rose Jr. of Boston’s a $65 million settlement the twins Judge Mitchell H. Kaplan encouraged or acting as manager of the limited liability Rose, Chinitz & Rose, says “we respectfully ultimately reached with Zuckerberg Chang to dismiss ConnectU from the company.’ … It follows that a contract claim disagree with the decision and will appeal.” and Facebook. suit based on Lauriat’s finding. against a corporation does not, upon a Winklevoss lawyer Tyler Meade of Chang is an accomplished “It would appear that the proceeds change in ownership, become a claim against California’s Meade & Schrag declines to — that the only asset of ConnectU entrepreneur, too, most famous for BILLINGS its former shareholders.” comment. founding Crashlytics, which was were the proceeds of the settlement,” Billings’ reversal of Lauriat on that point The defendants opened their memorandum acquired by Twitter in 2013 for more Kaplan said at the hearing, according knocked out Chang’s “option claim” against in support of their motion for summary than $100 million. His 2009 lawsuit stems to a transcript. “And this lawsuit is about the Winklevoss defendants. Billings also judgment by stating that it was “based on from a plan five years earlier to integrate that, and ConnectU doesn’t assert any right dismissed Chang’s “partnership claim,” the principle … that a party may not disavow the Winklevosses’ ConnectU with Chang’s independently to those proceeds; correct?” largely on the basis of an online chat between a partnership when the changes of profit file-sharing service i2hub — a plan that was Chang subsequently dismissed ConnectU Chang and Tyler Winklevoss. seem remote and then, four and a half years aborted the following year. from the suit voluntarily. At the summary “What comes through most clearly in the later, take the opposition position after his The twins’ father, Howard Winklevoss, and judgment phase, Chang argued that Lauriat’s May 25[, 2005] chat is both sides’ eagerness former associates have obtained a recovery ConnectU co-founder Divya Narendra also finding that any recovery would have to come to extract themselves from one another and exclusively from their own efforts.” are named as defendants in the suit. Chang from the Winklevoss defendants was “law of their shared business venture,” Billings — Brandon Gee FEBRUARY 2015 | New England IN-HOUSE | page 3 Trade-secret plaintiff can’t audit all of rival’s computers are limits as to the types Requested relief of inspections a court will ‘a bridge too far’ permit. “This means you may need to think of other ways By Eric T. Berkman to get at the information,” A biotech company that claimed an employee he said.