• Dean Royer

October and November 2019 employment law decisions

Federal employee’s case that named the wrong defendant is still timely.

November 14, 2019, Ninth Circuit Court of Appeals, Alisha Silbaugh v. Elaine Chao: Ms. Silbaugh filed her case concerning her employment with the Federal Aviation Administration within the time limits (statue of limitations) but named the wrong defendant. After the limitations period ran, the FAA moved to dismiss the action on grounds the case had to be filed against the head of the executive agency to which the FAA belongs. Ms. Silbaugh responded by filing an amended complaint that named the Secretary of Transportation (Ms. Chao) as the defendant. The district court denied FAA’s motion to dismiss as moot. Ms. Chao filed a motion to dismiss on grounds the amended complaint was not timely because it did not “relate back” to the original complaint. The district court agreed. On appeal, the Ninth Circuit reviewed a federal rule of civil procedure (15(c)) that provides that an amendment relates back to the original complaint when a United States officer or agency is added as a defendant if the original complaint and summons was served on the United States attorney, the Attorney General, or the officer or agency within a 90-day period. Because Ms. Silbaugh timely served the United States attorney and Attorney General her amendment to re-name the defendant related back. Accordingly, the Ninth Circuit reversed the dismissal.


Disability discrimination need not be based on animus or ill will.

November 13, 2019, Second District Court of Appeal, John Glynn v. Superior Court of Los Angeles County: Mr. Glynn sued his employer for disability discrimination. The case arose from a temporary benefits staffer mistakenly thinking Mr. Glynn had transitioned from short term disability to long term disability and was unable to work with or without an accommodation. On that basis, the staffer terminated Mr. Glynn. For months the employer ignored Mr. Glynn’s efforts to correct the misunderstanding. The issue before the court of appeal was whether this constituted direct evidence of disability discrimination. Under the direct evidence method of proof the employee must show that his employer knew of his disability and the disability was a substantial motivating reason for an adverse employment action such as termination. The court of appeal reviewed a prior appellate decision in which the court concluded that animus or ill will was not required to prove discriminatory intent; rather, the disability discrimination law protects employees from erroneous or mistaken beliefs about the employee’s disability. In this case, the termination letter stated that Mr. Glynn’s employment ended due to his inability to return to work with or without an accommodation. As a result, the court of appeal concluded that Mr. Glynn’s case could not be dismissed (summary judgment).


Each payment of an alleged discriminatory disability check triggers a new statute of limitations period.

October 31, 2019, First District Court of Appeal, Joyce Carroll v. City and County of San Francisco: Ms. Carroll sued her former employer as a class representative claiming that San Francisco discriminated based on age by providing reduced disability retirement benefits to older employees who took disability retirement after working for the City for less than 22.22 years. A required administrative charge with the Department of Fair Employment and Housing was filed more than 17 years after Ms. Carroll retired. The trial court dismissed the case (demurrer) on grounds the DFEH charge was filed too late (statute of limitations). The court of appeal decided that the one-year limitations period started each time Ms. Carroll received a discriminatory disability payment. Therefore, the dismissal was reversed.


Employer’s service charge may be considered a tip that must be distributed to employees.

October 31, 2019, First District Court of Appeal, Lauren O’Grady v. Merchant Exchange Productions, Inc.: Ms. Grady sued her employer as a class representative asserting a failure to distribute tips (gratuities). Merchant Exchange Productions added a mandatory “service charge” to the contract for every banquet facility it provided and distributed only some of the charge to managerial employees who did not serve food and beverages at the banquet. Ms. Grady alleged that she and other employees who served food and beverages were entitled to the entire service charge as a tip as required by California’s Labor Code (section 351). The court of appeal decided that a service charge can meet the Labor Code’s definition of a tip and that Ms. O’Grady’s complaint sufficiently alleged a violation of law.


#Disability #Tips #Statuteoflimitations #Discrimination #Wageandhour

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