FEDERAL EMPLOYMENT LAW ISSUE

Plaintiff’s Claim for Religious Accommodation is Deemed “an Undue Hardship” on an Employer When in Violation of the Collective Bargaining Agreement.

In Stolley v. Lockheed Martin Aeronautics, Inc., 2007 WL 1010418 (C.A.5, March 28, 2007), Plaintiff, Daniel Stolley brought suit against Defendants, Lockheed Martin Aeronautics Co., alleging violations of the religious discrimination provisions of Title VII of the Civil Rights Act of 1964, based upon Defendant’s failure to reasonably accommodate his religious beliefs.

On February 13, 2003, Plaintiff applied for employment with Defendant, Lockheed Martin. In the application, Plaintiff was asked whether he could perform shift work, rotational work, overtime work, and a work schedule that included Saturdays and Sundays. In response, Plaintiff answered in the affirmative. Thereafter, Plaintiff was hired, and began work on February 24, 2003. Three days later, Plaintiff learned that he had been assigned to a Friday shift, running from 3:45 p.m. to 12:15 a.m. Plaintiff advised Defendant that his religious observation prevented him from working from sundown on Friday until sundown on Saturday. Thereafter, his supervisor made inquiries into re-assigning Plaintiff to a different department or a different shift, but was advised that the Collective Bargaining Agreement contained seniority provisions which prohibited such reassignment. Shortly thereafter, Plaintiff was terminated for failing to work his assigned Friday shifts.

Plaintiff then brought suit, alleging violations of the religious discrimination provisions of Title VII of the Civil Rights Act of 1964, stating that Defendant had failed to reasonably accommodate his religious beliefs. Defendant sought dismissal of the action by way of summary judgment, which dismissal was granted. Plaintiff appealed that decision.

On appeal, the Court found that Plaintiff made out his prima facie case of religious discrimination. The burden then shifted to Defendant to establish that it was unable to reasonably accommodate Plaintiff without undue hardship. In affirming the lower court’s decision, the Fifth Circuit noted that Title VII “does not require employers to make religious accommodations that infringe on the rights of fellow employees.” The Court stated that “where seniority-bidding provisions in collective-bargaining agreements conflict with the religious beliefs of an employee so that no accommodation is possible, an employer will not be liable for its failure to accommodate.” In finding for Defendants in this matter, the Court noted that had Plaintiff expressed the need for his religious accommodations during the hiring process, the Defendant would have been able to place him in a different shift without implicating the Collective Bargaining Agreement. However, once hired, Plaintiff fell under the Collective Bargaining Agreement, and was subject to the seniority bidding process. Accordingly, to have accommodated Plaintiff’s religious beliefs in this instance, in violation of the Collective Bargaining Agreement, would have been an undue hardship on the part of the employer under Title VII of the Civil Rights Act of 1964.

NEW JERSEY PROFESSIONAL LIABILITY ISSUES.

Plaintiff’s Claim for Legal Malpractice May Proceed Where the Settlement in the Underlying Matter is “Unfair”.

In Prospect Rehabilitation Services, Inc. v. Gereneroso Squitieri, Esq. , A-2991-05T5 (App. Div. April 16, 2007), Plaintiff, Prospect Rehabilitation Services, Inc., brought suit against its prior counsel, Defendant Squitieri, alleging legal malpractice in the mishandling of the underlying action. Defendant was granted dismissal of the matter based upon Plaintiff having voluntarily settled the underlying action without exhausting all avenues of recovery.

Plaintiff alleges that in April 2001, Defendant filed suit on Plaintiff’s behalf against two nursing homes, seeking recovery for alleged overpayments of rent and construction advances, and also asserting Consumer Fraud act violations and RICO violations. The nursing homes counterclaimed, alleging unpaid rent. Non-binding arbitration resulted in an award in favor of the nursing homes. Defendant filed for Trial de Novo on Plaintiff’s behalf.

In April 2002, Plaintiff terminated Defendant Squitieri’s services, and retained new counsel. New counsel immediately filed a motion for leave to amend the pleadings, to add potential claim for failure to timely submit documentation to Medicare, in violation of the parties’ service agreement. This failure resulted in a loss to Plaintiff of $400,000. Plaintiff alleges that Defendant was aware of this potential claim early in the litigation, but failed to bring the claims. Defendant stated he was not made aware of this claim until the time of the arbitration. The Trial Court denied the motion to amend, noting that a lack of attorney diligence was not the “exceptional circumstances” necessary to warrant an amendment at that late date.

Prior to trial, several counts were dismissed against the nursing homes. Following trial, Plaintiff obtained a jury verdict in its favor for approximately $74,500. Plaintiff then appealed the denial of its motion to amend. Additionally, Plaintiff brought a new lawsuits against the nursing homes, seeking damages for Breach of Contract and related to the Medicare denials. In May, 2003, one of the nursing homes filed for dismissal of the action, alleging it was barred by the entire controversy doctrine. Counsel for the second nursing home indicated it would do likewise.

In June 2003, Plaintiff settled its claims with the nursing homes for $40,000 in excess of the judgment awarded at trial. Based upon the settlement, Plaintiff dismissed the pending lawsuits and its appeal. Plaintiff then filed the within legal malpractice action against Defendant Squitieri, alleging that Defendant was negligent in failing to assert the Medicare denial claims against the nursing homes. Plaintiff alleged that as a result of Defendant’s negligence, it was unable to attempt to recover almost $400,000 in damages. Defendant sought dismissal, alleging the matter was barred based upon the settlement in the underlying action. Defendant relied primarily on Puder v. Buechel, 183 N.J. 428 (2005). In that matter, the defendant, counterclaimed against her former counsel, plaintiff therein, alleging legal malpractice. Defendant asserted that, in the underlying action, plaintiff had negotiated an inadequate divorce settlement and had failed to obtain informed consent before accepting same. However, during the pendency of the action, defendant retained new counsel in the underlying action, and entered into a second settlement agreement which was substantially similar to the first. Defendant then stated to the Court that the second settlement was “acceptable,” and a “fair compromise of the issues.”

In this matter, the Appellate Court found that Puder did not apply, because Plaintiff herein never represented that it considered the settlement to be a fair resolution of the underlying claims. Rather, Plaintiff stated that the settlement was merely a mitigation of damages, in light of the likelihood that it would not be successful in the underlying action.

Ultimately, the Appellate Court reversed the dismissal of the malpractice action, and remanded the matter for further proceedings, finding that this matter was “factually and legally distinguishable from Puder and does not have the fairness and public policy considerations favoring settlements of the equities that pervaded” the Puder case.

PENNSYLVANIA PRODUCT LIABILTY ISSUES

In Strict Liability Design Defect and Failure to Warn Case, Defendant May Present Evidence of Plaintiffs’ Misuse and Inadequate Maintenance of Machine for Purposes Defeating Causation.

In Moyer v. United Dominion Industries, Inc., 473 F.3d 532 (3d Cir. 2006), Plaintiff factory employees filed a Complaint alleging designed defect and failure to warn concerning a component part manufactured by Defendant. Following a verdict in favor of Plaintiffs, Defendant Appealed.

Plaintiffs, employees of Brush Wellman, a company that manufactures beryllium copper alloys, alleged that they developed Hand-Arm Vibration Syndrome as a result of vibrations caused by a swager, a component part which part shapes the ends of coil into a point. The swager was manufactured by Fenn Manufacturing Corp., a company in the control of Defendant, United Dominion.

In 1993, Brush Wellman purchased the swager from Fenn Manufacturing, and installed it on a bull block, a collection of machinery which reduces the diameter of beryllium copper wire. In 1994, several employees complained to Brush Wellman about injuries caused by the vibration of the swager. Following an investigation by an outside company, Brush Wellman was provided several suggestions to reduce injuries. As a result of those suggestions, in 1995, Brush Wellman formed a committee to look into replacing the swager with a newer model. The newer model was purchased in 1996, as was an optional automatic feed that eliminated operator exposure to the vibrations of the swager.

Applying Pennsylvania Law, the Trial Judge performed a risk-utility analysis and made a threshold determination that the swager was “unreasonably dangerous.” The case then went to the jury to determine “whether the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” At trial, the Judge prevented Defendant from presenting evidence of misuse and/or lack of inadequate maintenance, and evidence regarding the lack of prior claims.

On appeal, Defendant argued that the District Court erroneously excluded all evidence used by the Trial Judge in its risk-utility analysis, some of which related to the jury’s design defect determination, specifically evidence regarding conduct of the plaintiff, including misuse of the product, and also lack of prior claims.

The Third Circuit held that evidence should not be excluded simply because it was used by the Trial Judge in his risk-utility analysis. Rather, as long as the evidence is admissible as relevant under the rules of evidence, such evidence may be presented to the jury if it has “any tendency to show that Plaintiffs’ injuries were caused solely by misuse and inadequate maintenance of the swager, rather than by a design defect.” The Third Circuit found that the exclusion of this evidence severely impaired Defendants in presenting its case, and so was not harmless error.

With regard to evidence of lack of prior claims, the Third Circuit, applying a three part test set forth in Forrest v. Beloit, Corp., 424 F.3d 344 (3d Cir. 2005), which provides that past claims should be admissible where (1) Defendant shows that the testimony relates to substantially similar products used in similar circumstances; (2) Defendant provides the Court with information concerning the number of prior units sold and the extent of prior use; and (3) Defendant shows it would likely have known of prior accidents had they occurred. In applying this test, the Third Circuit found that the evidence offered by defendants regarding lack of prior claims was admissible. Accordingly, the Third Circuit remanded the matter for a new trial.