Alaska Employment Law

Member claims against a union: The 9th Circuit has affirmed judgment against a union under both Title VII and DFR theories. 

DFR claim: The Court affirmed a trial court’s findings that a union had breached its duty by failing to file a timely grievance when the union has agreed to do so, and that such conduct substantially injured the member (because it heightened the likelihood that she would be fired following a second infraction of work rules).  The Court repeated a holding from an earlier case:

[t]he union should be held to a higher standard of care in discharge cases involving off-duty conduct because the sanction is severe and the nexus between job performance and the alleged misconduct is more attentuated.

Title VII claim: The Court also affirmed the trial court’s finding that the union had represented men more vigorously than women.  The union had challenged the plaintiff’s reliance on comparators, arguing that three comparators was too small a sample, statistically.  But the Court held:

Our cases do not always clearly distinguish between statistical evidence that is non-probative because it is based on too small a sample size, and permissible comparative evidence of one or more similarly situated individuals.  However, in general, we have upheld inferences of discriminatory motive based on comparative data involving a small number of employees when the plaintiff establishes that he or she is ’similarly situated to those employees in all material respects.’  Here, [plaintiff] Beck’s evidence was comparative in nature, rather than statistical.  . . .  The district court found that Local 99 provided more aggressive representation of two men than it did of Beck and [another woman].  It also found that Beck and [another person]  were similarly situated ‘in all material respects,’ and that Beck was similarly situated to other male employees who received more favorable treatment from the same union repressentatives.  We cannot say that, as a matter of law, such evidence was an insufficient basis for the district court’s conclusion that the union had intentionally discriminated against Beck, even though the comparative evidence was based on only three individuals in additional to Beck.

(Citations omitted.) 

The Court “agree[d] with our sister circuits that whether two employees are similarly situated is ordinarily a question of fact.”  N.5.

Beck v. UFCW Local 99, 2007 WL 3197089 (9th Cir. Nov. 1, 2007).

Attorney fees, pre-suit notice, and the de minimis rule:  In an ADA Title III case that settled with a reservation of plaintiff’s right to move for attorney fees, the Court held the right to attorney fees under ADA Title III is not subject to either an express or implied duty by the plaintiff to give the defendant pre-suit notice of claim, or to give it an opportunity to cure the alleged violation.  The Court did opine that the defendant’s (prompt pre-suit) remediation of some of the ADA violations (within the hour) made those claims de minimis.  

Skaff v. Meridien North America, 2007 WL 3197038 (9th Cir. Nov. 1, 2007).