Friday, October 29, 2010

An Older Employee Must Demonstrate that He or She Was Replaced by a Younger Person to Sustain an Age Discrimination Claim

In Kosak v. Catholic Health Initiatives, the Tenth Circuit Court of Appeals affirmed judgment against a woman who claimed she was discriminated against because of her age.  Despite the woman's arguments to the contrary, the Tenth Circuit reaffirmed that "an ADEA plaintiff must ordinarily show that her position was filled by a younger person in order to make a prima facie case of discrimination." 

Claims under Utah Whistleblower Act Must be Filed Within 180 Days or They Are Barred

In Thorpe v. Washington City, the Utah Court of Appeals declared that an employee who failed to file a complaint in a court raising his Utah Protection of Public Employees Act ("Whistleblower Act") claims within 180 days was barred.  The employee attempted to circumvent the requirements of the Whistleblower Act by claiming that a Notice of Claim filed pursuant to the Governmental Immunity Act of Utah should be considered a "civil action" that was required to be filed by the Whistleblower Act.  Instead, the Court reaffirmed and clarified that for a party to file a claim under the Whistleblower Act against a governmental entity, it must comply with the Notice of Claim requirements of the Governmental Immunity Act and the 180 day requirement of the Whistleblower Act.  "It follows that the plaintiff must submit the notice of claim before the elapse of 120 days from the date of the alleged [Whistleblower Act] violation so that, after governmental either denies or fails to approve the notice of claim within 60 days, the plaintiff may still file a timely complaint within the . . . 180-day statutory period." 

The Court of Appeals also rejected the employee's claim that he could bring an action in the district court regarding his termination without first appealing the decision of the city's employee board of appeals to the Utah Court of Appeals.

Monday, October 25, 2010

Former KMart Store Manager Did Not Suffer Discrimination

In Gardner v. Sears Holding Corporation, the Tenth Circuit upheld a trial court's order granting summary judgment against a man who claimed he was discriminated against on the basis of his age and race when his employment was terminated.  The court ruled that because "Kmart had established legitimate, non-discriminatory reasons for reprimanding Mr. Gardner by documenting the poor conditions of his store and the compliants of his employees," the manager's claims of race and age discrimination could not withstand summary judgment.

Employee's Failure to Identify that Her Termination was a Result of Discrimination Defeated her Discrimination Claim

In Logdson v. Turbines, Inc., the Tenth Circuit Court of Appeals ruled that a former employee who filed a charge of discrimination with the EEOC that contended she had been discriminated against when she was demoted, was not promoted, and was disciplined did not preserve her claims of discriminatory termination.  The court ruled that "it was not reasonable to expect the EEOC to investigate her discharge as discriminatory or retaliatory based solely on the prior, 'remote' reference to the discharge in [a later submitted document]."  Because she failed to raise the issue with the EEOC, her discrimination claim was dismissed.

Unemployment Benefits Recipient Did Not Unreasonably Reject Offer to Work only Two Day of Work

The Utah Court of Appeals ruled that a laid-off employee could not be denied unemployment benefits even though she rejected an offer to work at her former employer for at least two days with an offer to work more if the work existed.  The Court stated in Duong v. DWS that "the decision of the Board disqualifying Duong from benefits based upon a refusal [in this circumstance] . . . 'exceeds the bounds of reasonableness and rationality.'"