Berk & Moskowitz, P.C.

Eric Thompson and his fiance Miriam Regalado both worked for the same employer.  Three weeks after the employer was notified that Miriam had filed a charge of sex discrimination with the EEOC, the employer fired Eric.  Eric then filed a charge with the EEOC and ultimately a lawsuit in federal court alleging that he was retaliated against in violation of Title VII because his fiance filed a charge of discrimination with the EEOC.  The trial court granted summary judgment in favor of the employer finding that Title VII did not permit third-party retaliation claims.   The Sixth Circuit Court of Appeals agreed.  However, on January 24, 2011, the U. S. Supreme Court, in Thompson v. North American Stainless, reversed the Sixth Circuit Court of Appeals, and held that Eric had standing to sue under Title VII.   Although the Supreme Court refused to set a fixed class of relationships that would encompass the third-party protections of Title VII’s anti-retaliation provision, the Court did state that the firing of a close family member will likely always fit the bill unlike lesser discipline against a mere acquaintance which would likely never fit the bill.  The Court went on to hold that an “aggrieved” party with standing to sue under Title VII’s anti-retaliation provision needs to be within the “zone of interests” – i.e., have an interest “arguably sought to be protected by the statutes . . . while excluding  plaintiffs who might  technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.”  Because Eric was employed by the same employer as his fiance and, taking his allegations as true that hurting him was the intended means of harming her, the Court held he was within the “zone of interests” and thus had standing to file suit.

Click here for a copy of the decision.

The Ninth Circuit recently overturned a district court judge’s ruling that a female’s sexual harassment of a male co-worker was not severe or pervasive enough to be actionable.  EEOC v. Prospect Airport Services, Inc., No. 07-172221 (9th Cir. Sept. 3, 2010).  In doing so, the Ninth Circuit rejected the stereotype that most men welcome sexual advances by a woman, stating “[s]ome men might feel that chivalry obligates a man to say yes, but the law does not.”  This held especially true under the circumstances of the case at hand where the male co-worker’s wife had recently died and he simply was not interested in having a sexual relationship with a married co-worker.  Perhaps he feared she would file a sexual harassment claim against him that would cause him to lose his job.  Perhaps he feared her husband.  Perhaps he believed adultery to be immoral given his Christian background and simply was not sexually attracted to her.  In any event, it was based on these possible explanations that the Ninth Circuit found a question of fact as to whether the sexual advances were welcome.  Unfortunately for the male co-worker, his complaints were laughed at and not taken seriously by his supervisors.  Other co-workers mocked him by suggesting he was homosexual.  The harassment persisted unabated for months.  His performance deteriorated for which he was demoted and eventually fired.

HP has settled the lawsuit it brought against its former CEO which sought to preclude him from going to work for competitor Oracle.  The terms of the settlement are not known to Berk & Moskowitz, but the case seems to have been resolved relatively quickly.

The AP is reporting that HP is suing its former CEO to try and stop him from going to work for competitor Oracle.  HP is alleging that its former CEO that it recently let go, could not work for Oracle without disclosing trade secret information and violating a Confidentiality Agreement that was part of the former CEO’s severance package.  Apparently the two companies worked in unison for years (Oracle provided software for HP’s computers), but that relationship has somewhat changed since Oracle got into the server business when it purchased Sun Microsystems last year.  HP and Oracle now compete in that line of business.

The ABA is reporting that the federal circuits are split on whether an employee who is authorized to access her employer’s computers but does so for improper purpose(s) is liable under the Computer Fraud and Abuse Act.  The Ninth Circuit apparently only permits recovery where the access is completely without any authorization.  Other circuits apparently permit recovery if the access is abused contrary to the employer’s interests or the parties’ contractual agreement.   It will be interesting to see if the U.S. Supreme Court gets a say in the matter.

The Arizona Court of Appeals has rendered a decision holding that an employee on an out of town work assignment is acting within the course and scope of his/her employment while going to and from a restaurant for a regular meal for purposes of respondeat superior liability.   McCloud v. Kimbro, 2 CA-CV 2009-0116 (March 23, 2010).  The Court’s rationale – but for the out of town work assignment, the employee would not be required to eat away from home.

Apple Inc. has filed a civil lawsuit against a former manager indicted for allegedly accepting kickbacks from certain suppliers of the company.  The manager has pled not guilty to the criminal charges.  The civil action alleges that the former manager breached his contract and misappropriated Apple trade secrets.

City of Ontario v. Quon, No. 08-1332 (Slip Op. June 17, 2010)

The ABA reports that the U.S. Supreme Court upheld a search by the City of Ontario of one of its employee’s text messages because the search was motivated by a legitimate work-related purpose and the scope of the search was not excessive.  For example, the search did not involve any texts sent or received while the employee was off-duty.  Only those texts sent or received while the employee was working were searched.  The Ninth Circuit had previously found the search to have violated the employee’s Fourth Amendment Rights.  The U.S. Supreme Court disagreed.

Rent-A-Center, West, Inc. v. Jackson
No. 09-497, 561 U.S. _________, (U.S. June 21, 2010)

The ABA reports that in a 5-4 decision, the United States Supreme Court reversed a Ninth Circuit decision that had held when an arbitration provision is challenged by an employee on grounds of unconscionability, the issue is one for the court, not the arbitrator.  The Supreme Court majority found that the employee Plaintiff’s challenge was to the contract as a whole as compared to a challenge to the specific provision that delegated the issue of enforceability to the arbitrator.  The subject matter of the contract, however, was exclusively arbitration.  This is where the majority and dissent crossed-paths.  The majority found this to be a distinction without a difference and focused on whether the challenge was to the arbitration provision as a whole as compared to the specific provision that delegated the issue of enforceability to the arbitrator.  The determination whether the provision was unconscionable was ordered to arbitration.  If upheld by the arbitrator, the employee Plaintiff’s discrimination claim would be subject to arbitration as well.  In fact, arguing over whether his claim is decided in court or by arbitration may be this Plaintiff’s only day in court.

The Arizona Court of Appeals recently reversed and remanded a trial court’s grant of summary judgment against a former Taser executive.  Taser sued the former executive claiming, among other things, that he breached his fiduciary duty to Taser by competing with the company while still employed there.  The Court of Appeals found a genuine issue of material fact existed as to whether the former executive had merely begun making preparations to compete or actually began competing with the company while still employed there.  Only the latter is a breach of fiduciary duty in Arizona.  The case is helpful in that it discusses the factors involved in deciding what constitutes preparing to compete while one is still employed - an issue often confronted by many employees and employers in these sorts of cases.  It is also interesting to note that the Court of Appeals on its own accord entered summary judgment against Taser on its claims that the former executive usurped a corporate opportunity and had a duty to disclose his plans of forming a competing business. Click here to read the decision.