NEWS

Thomas M. Hanna enforced an arbitration agreement removing a workers’ compensation retaliation case from Circuit Court in Mt. Vernon, Ill. At arbitration, the claim was denied. The discharged employee’s attorney appealed to the Court to set aside the award as inconsistent with Illinois case law, but the appeal was denied, and the case is now closed.

Kevin J. Lorenz, Laura B. Staley and Kristen C. Kot successfully obtained summary judgment in a sexual harassment lawsuit filed in federal court. The judge granted summary judgment, because the plaintiff filed bankruptcy prior to asserting her claim against the employer but failed to list the claim as an asset in her bankruptcy case. As a result, she was not considered the real party in interest with standing to assert a sexual harassment claim – only the bankruptcy trustee could bring such claim on her behalf. The court further agreed with the employer that the plaintiff’s actions cannot be considered excusable neglect inasmuch as the plaintiff intended to defraud the court.

Geoffrey M. Gilbert, Jr., and Robert D. Younger successfully obtained summary judgment on behalf of an employer in a USERRA suit filed in the United States District Court for the Southern District of Illinois. The Court granted summary judgment in favor of the employer, as it found that the employer established by more than a mere preponderance of the evidence that it did not discriminate against the job applicant based upon his military status. The Court further found there was nothing to give credence to plaintiff’s claims of discrimination, especially in light of the fact that the personnel manager was a former military man and the individual hired instead of plaintiff was a member of the Illinois Guard Reserve.

John B. Renick tried and successfully defended a Fair Labor Standards Act case involving the professional exemption for computer professionals in the Western District of Louisiana. The court held the exemption was not reserved only for employees engaged in design and development of computer systems/programs. The duties of analysis and modification of existing systems, even when based on user specifications, qualify as exempt if, in combination, they constitute an employee’s primary duty.

In the Eastern District of Louisiana, James N. Foster, Jr. and Geoffrey M. Gilbert, Jr., were awarded summary judgment in a suit filed by a former employee. The employee alleged she was denied a promotion and terminated based upon her race and gender. The District Court found that the employee was terminated due to the fact she had interpersonal conflicts with management staff, and her unsupported allegations that there was a high school-like atmosphere among the management staff was insufficient to demonstrate the reason for her termination was pretextual.

James N. Foster, Jr., and Amy R. Brown prevailed in a representation case before the National Labor Relations Board (NLRB). The NLRB Regional Director dismissed a petition in which a union sought to require 65 separate employers to participate in a multi-employer election. Finding the employer’s position persuasive, the NLRB ruled that the petitioned-for unit was not appropriate.

Thomas O. McCarthy and Geoffrey M. Gilbert, Jr., represented an employer in a representation proceeding before the NLRB. The union sought a bargaining unit consisting of both the subcontractor, which provided the employees and services, and the entity which operated the site. The NLRB agreed with the employer’s argument that there was no joint-employer status, and the petition was dismissed.

James N. Foster, Jr. and Jeffrey D. Hackney were able to convince a federal judge to dismiss a complaint alleging both age and race discrimination, where the age claim alleged that he was assigned less desirable work because he was the “youngest and the strongest” and the race claimed failed to articulate the basis for the plaintiff’s belief that decisions about work assignments were racially motivated. The ADEA does not forbid employer from favoring an older employee over a younger one.

James N. Foster, Jr., Patricia M. McFall, and Jeffrey D. Hackney successfully recovered attorneys’ fees on behalf of a client based on the costs of defending a previously dismissed action. The federal judge ruled that language in an applicable federal rule awarding “costs” included attorneys’ fees and not just court fees and expenses.

James N. Foster, Jr., and Stephen B. Maule obtained summary judgment in the Western District of Missouri against a plaintiff who alleged race discrimination and retaliation. The plaintiff could not establish that her race or prior EEOC charge played a role in the employer’s decision not to select her for a position in her reorganized department. Notably, the court held the plaintiff did not suffer an adverse employment action with respect to her discrimination claim because, although she did not receive the position she wanted in her reorganized department, she never suffered a loss in pay or benefits and received another position earning at least as much as before.

Thomas O. McCarthy and Laura B. Staley successfully defended a client in St. Charles Circuit Court against claims of sexual harassment and wrongful discharge based on sex and race discrimination. The court granted the employer’s motion for summary judgment based on the employer’s good faith belief the plaintiff fabricated her claims of sexual harassment and engaged in blatant insubordination.

James N. Foster, Jr., and Michelle M. Cain successfully defended an appeal brought under the Class Action Fairness Act (CAFA) in the Ninth Circuit. In a matter of first impression, the Ninth Circuit agreed with McMahon Berger’s argument that appeals brought under CAFA were discretionary and that a petition for permission to appeal must be filed within seven days of a remand order. The Ninth Circuit denied plaintiff’s petition for permission to appeal.

In an arbitration matter, James N. Foster, Jr., and Daniel G. Fritz defended an employer against an employee’s grievance and retaliation claims filed with state and federal agencies. The agencies deferred to the private arbitration matter. The arbitrator ultimately found that there was no retaliation and that there had been just cause for the discharge.

DISCLAIMER: The results obtained by any of the aforementioned attorneys, as highlighted on this page of the McMahon Berger, P.C., Labor & Employment Chronicle, are reports of past cases and in no manner should be interpreted or construed as a guarantee of future results. Every case is different and must be judged on its own merits.

MCMAHON BERGER EXPANDS ITS RANKS

McMahon Berger Adds Two Attorneys

The St. Louis-based labor and employment defense firm of McMahon Berger, P.C., is proud to announce the addition of two attorneys to the firm. The firm welcomes Nicole H. Bolton, an employment litigation attorney. Prior to joining McMahon Berger, Ms. Bolton’s experience included litigating nationwide ERISA class actions and developing and managing a joint defense group consisting of 75 parties in nationwide commercial litigation. Nicole is also a former legal intern with the National Labor Relations Board, Region 18 office. Ms. Bolton graduated from the University of Minnesota Law School in 2003, graduating cum laude.

Additionally, the firm has added Dallas W. Cupp, an employment defense trial attorney from Hepler Broom in Illinois. Prior to joining McMahon Berger, Mr. Cupp practiced civil defense litigation in Missouri and Illinois, representing insurance providers and corporations in cases ranging from automobile negligence and wrongful termination to toxic tort and wrongful death. Mr. Cupp graduated from Washington University School of Law in 2001.

McMahon Berger represents exclusively employers and maintains offices in St. Louis and Southern Illinois. The firm continues its core reliance on attorneys that have successfully represented employers before the United States Supreme Court and has drawn its ranks from the National Labor Relations Board, United States Department of Labor, judicial clerkships and other similar backgrounds. McMahon Berger specializes in representing employers in the full range of employment litigation, EEOC matters, class actions, traditional labor relations, OSHA, Railway Labor Act and National Labor Relations Act issues.

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For further information contact: James N. Foster, Jr. foster@mcmahonberger.com