The first month of 2023 saw the United States Supreme Court’s grant of certiorari and a handful of decisions from the Eighth Circuit in the employment law realm:

First, on January 10, 2023, the United States Court heard oral argument in Glacier Northwest v. International Brotherhood of Teamsters. The issue in this case is whether the National Labor Relations Board (“NLRB”) preempts state-court lawsuits to recover damages for property allegedly destroyed during a strike. A construction materials company brought a lawsuit seeking damages from a local union for concrete that spoiled during a drivers’ strike. The Washington Supreme Court affirmed the dismissal of the state-law claims under the Garmon preemption doctrine, which blocks state lawsuits regarding union conduct, including strikes that are arguably protected under the National Labor Relations Act (“NLRA”).

In Mayorga v. Marsden Building Maintenance, the Eighth Circuit Court of Appeals addressed a gender-based wage discrimination lawsuit. In that case, the Eighth Circuit upheld summary judgment in favor of the employer in a lawsuit filed by a female building special services worker who alleged that she was paid less than two male colleagues who were hired at the same time and performed the same work. She brought her lawsuit under Iowa law. Applying the same standards as under the federal Equal Pay Act, the Eighth Circuit stated that an employer “cannot escape liability merely by articulating a legitimate non-discriminatory reason for the employment action,” but rather must “prove that the pay differential was based on a factor other than sex.” Ultimately, however, the Court found that the evidence established that the two male employees actually had more relevant experience, while the female employee had no experience in special services and had to learn to use some of the special services equipment “on the job.” Accordingly, the Court agreed with the federal district court that the pay differential between the female employee and her male counterparts was justified based on the employees’ prior work experience.

In Corkrean v. Drake University, the Eighth Circuit Court of Appeals addressed disability and FMLA retaliation. There, the Eighth Circuit affirmed summary judgment in favor of an employer in a lawsuit filed by an employee with multiple sclerosis who was terminated after twenty-eight years of employment. The employee was a college budget and office manager who reported directly to the dean. In July 2018, a new dean was appointed, and, from the outset, before learning of the employee’s medical condition, the dean had issues with the employee’s performance. When the dean discussed with the employee her erratic attendance, the employee told the dean that she had multiple sclerosis. Human resources provided the employee with FMLA certification forms, which she completed, and informed her that she needed to notify her supervisor when she was absent for an FMLA-protected reason, which she frequently failed to do. The employee’s performance issues continued, and the dean met with the employee a number of times to discuss the problems, including unprofessional communications with staff, failing to pay faculty members the appropriate amounts, missed deadlines, taking unapproved time off for personal reasons, and frequently failing to communicate the reasons for her absences. When the employee’s performance did not improve, a human resources representative met with the employee to discuss the issues and provided her with a written performance memorandum listing the performance issues, outlining an improvement plan, describing FMLA procedures, and warning that “failure to achieve immediate and sustained improvement . . . could result in further disciplinary action.” Two months later, when the employee failed to correct her performance deficiencies, she was terminated from her employment. The employee filed a lawsuit against the employer, alleging that she was terminated due to her disability in violation of the Americans with Disability Act and for taking FMLA leave. In affirming summary judgment for the employer, the Eighth Circuit found the employer “established a robust, well-documented set of legitimate reasons for the employee’s termination,” the employee failed to provide sufficient evidence of pretext, noting that the employee’s supervisor and human resources representatives “were always careful to separate performance and unexcused attendance issues from FMLA leave.” This case amply demonstrates the importance of contemporaneous and comprehensive documentation of employee performance issues and coaching efforts.