Cypen & Cypen
AUGUST 12, 2010
Stephen H. Cypen, Esq., Editor
1. CALIFORNIA FEDERAL JUDGE OVERTURNS STATE GAY MARRIAGE BAN: Plaintiffs challenged the November 2008 voter-enacted amendment to the California Constitution, which, in its entirety, provides: "Only marriage between a man and a woman is valid or recognized in California." Plaintiffs alleged that Proposition 8 deprived them of due process and of equal protection of the laws contrary to the Fourteenth Amendment, and that its enforcement by state officials violated 42 USC § 1983. Plaintiffs are two couples, Kristin Perry and Sandra Stier (who have reared four children together) and Jeffrey Zarrillo and Paul Katami. Plaintiffs seek to marry their partners, but have been denied marriage licenses on the basis of Proposition 8. No party contended, and no evidence at trial suggested, that county authorities had any ground other than Proposition 8 to deny marriage licenses to plaintiffs. Having considered the trial evidence and arguments of counsel, the court found that Proposition 8 is unconstitutional, and that its enforcement must be enjoined. Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence showed Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-se.x couples are superior to same-se.x couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concluded that Proposition 8 is unconstitutional. (Note that California officials who were named as defendants chose not to defend Proposition 8 in the proceedings.) The court thereupon ordered entry of judgment permanently enjoining enforcement of Proposition 8; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. Perry v. Schwarzenegger, Case No. C 09-2292 (U.S. ND Cal., August 4, 2010). Read the entire 136-page ruling at https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf.
2. RETIREMENT SYSTEM PRECLUDED FROM RELITIGATING SERVICE CREDIT ISSUE: Kentucky Employees Retirement Systems appealed a decision to deny it relief from an order granting Foster's request to purchase twenty-three months of service credit for the time she was employed as a professor at the University of Kentucky. A few years earlier, a circuit court specifically held that Foster was entitled to purchase twenty-three months of service credit representing her tenure as a professor at UK. KERS previously appealed to the Kentucky Court of Appeals, and its sole contention of error was that a proper construction of relevant statutes mandated that instructional positions, such as the one at which Foster was employed, did not qualify for any service credit. However, the Court of Appeals upheld the circuit court's decision, and the Supreme Court of Kentucky denied discretionary review. When Foster requested to purchase the twenty-three months of service credit that were at issue in the first case, KERS again refused, this time citing results of an audit it had performed on her retirement account after the Supreme Court denied discretionary review. On the second appeal by KERS, the Court of Appeals affirmed based on the doctrine of law of the case. The underlying issues in the first case were not limited to whether Foster was entitled to purchase service credit for working as an instructor at UK; an additional and central issue in that action was the number of months of service credit she was entitled to purchase by virtue of that employment. At the administrative level, she specifically requested to purchase twenty-three months of service credit. After her request was denied, she appealed to the circuit court, which declared Foster eligible to purchase twenty-three months of service credit from KERS. Between the administrative and trial levels, the only contention KERS made for refusing to sell Foster twenty-three months of service credit was its statutory interpretation that instructional employees at UK did not qualify to purchase service credit. Thus, the only issue KERS previously appealed was whether Foster was entitled to purchase any service credit at all; it did not appeal the circuit court's additional determination that Foster was specifically entitled to purchase twenty-three months of service credit. Law of the case precluded KERS from contesting this issue now, even if the facts in support of the circuit court's holding were erroneous in that respect, because KERS did not raise it as an issue on appeal in the first case. (The appellate court also affirmed an order holding KERS in contempt for its wilful disobedience of a court order and an order awarding Foster $18,885 in attorney's fees against KERS.) Live by the sword, die by the sword. Kentucky Retirement Systems v. Foster, Case No. 2009-CA-001369 (Ky. App., July 23, 2010).
3. WOMEN WIN $400,000 IN ST. LOUIS FIRE DEPARTMENT DISCRIMINATION CASE: The results were mixed for four women who claimed they were discriminated against at a St. Louis area fire department. Advisen.com reports that two women who work for The Monarch Fire Protection District won a total of $400,000, but a St. Louis County Circuit Court jury rejected claims of two other women who are no longer with the department. The two were each awarded $200,000 in actual damages for their claims of gender discrimination and hostility in the workplace. No punitive damages were awarded. The jury did side with the fire district on claims of the two former employees.
4. LAWYER WINS $1.55 MILLION IN COUNTERCLAIM TO SE.XUAL HARASSMENT SUIT: An Alameda County, California, jury rejected the se.xual harassment and wrongful termination claims a paralegal made against her former boss, instead awarding him $1.55 Million in damages in his defamation counterclaim. The jury also found that the paralegal acted with malice and oppression, laying groundwork for a subsequent award of punitive damages. The paralegal had sued the boss, according to law.com, claiming that he fired her when she refused to continue a se.xual relationship with him. She said she felt pressured to have se.x with her boss, and that she did so to protect her job and her plan to attend law school. The lawyer admitted dating the paralegal, but denied firing her, saying that he told her to go home one day because he could not deal with her belligerent attitude after he confronted her about a serious mistake she had made in a case. He said he broke up with the paralegal after she would not stop nagging him about his weight. (He ain’t heavy, he’s my lawyer.) In his countersuit, the lawyer accused the paralegal of telling colleagues that he was a se.xual predator.
5. FLORIDA BOARD COMMITS $850 MILLION TO ALTERNATIVES: Florida State Board of Administration has committed a total of $850 Million to private equity and debt funds. Pionline reports that the board committed $350 Million to opportunistic debt funds, $150 Million to a corporate mezzanine fund, $150 Million to private equity funds, $100 Million to a residential whole mortgage fund and $100 Million to a senior loan fund. The Florida SBA oversees a total of $138.4 Billion, including the $112.2 Billion Florida Retirement System.
6. NYC MAYOR APPOINTS (FIRST) PENSION ADVISER: Ranji H. Nagaswami was appointed by New York City Mayor Michael Bloomberg to the newly-created job of adviser to the mayor’s trustees on the boards of five New York City pension funds that have combined assets of $103.8 Billion. Nagaswami is former CIO of AllianceBernstein’s blend strategies group, overseeing the firm’s multiasset and blend equity portfolios, according to pionline.com. The mayor said his decision should not be viewed as criticism of the city comptroller, investment adviser of the plans, or the plans’ chief investment officer. (Right.) Nagaswami will conduct research on all relevant investment issues that impact the portfolios. She also will provide the mayor’s pension board trustees (but not the others?) with timely investment reviews, reports and presentations, and make recommendations on asset allocation and investment strategy. The subject five city funds are New York City Employees’ Retirement System; Teachers’ Retirement System of the City of New York; New York City Police Pension Fund; New York City Fire Department Pension Fund; and New York City Board of Education Retirement System. We wonder how much a heavy-hitter like Nagaswami is going to be paid -- and who is going to pay her.
7. NEW JERSEY APPEALS COURT RULES 9-1-1 OPERATORS CAN BE SUED: A New Jersey appeals court has held that 9-1-1 operators are not immune from being sued over mishandled calls, according to The Associated Press. The decision would have enabled the family of a slain Seton Hall University student to continue a lawsuit against the City of Newark, but the case was settled before the appeals court issued its ruling. The lawsuit stemmed from abduction and killing of 23-year-old Sohayla Massachi by an ex-boyfriend in May 2000. A jury found that Newark 9-1-1 personnel mishandled calls reporting her abduction. The City appealed, unsuccessfully claiming 9-1-1 operators should have immunity. We are a little befuddled because the latest decision does not appear on the court’s website. What does appear is an earlier iteration of the same case. That appeal also arose from the murder. Suit filed after her death alleged that a series of missteps by the 9-1-1 operator and police dispatcher who had received the call from eye witnesses caused police to search the wrong car and respond to the wrong location, thereby missing any opportunity they would have had to save the young woman’s life. The trial court granted the City of Newark’s motion for summary judgment, finding the City was immune from liability under statutes that provided immunity for failure of a public entity and its employees to provide police protection service or sufficient police protection service. The appellate court concluded that the immunity provided by those statutes did not immunize 9-1-1 operators and police dispatchers from results of their negligently-executed ministerial duties, and, accordingly, reversed the grant of summary judgment to the City. The court did not address the City’s alternate immunity claim under another statute, and permitted the parties upon remand more fully to develop their arguments respecting that statute. We assume the AP is reporting results of the remand. Massachi v. AHL Services, Inc., Case No. A-1113-06T11113-06T1 (NJ App., November 15, 2007) (unpublished).
8. CLASS ACTION 401(K) SUIT SETTLED FOR OVER $15 MILLION: A class-action that alleged tens of thousands of participants in two General Dynamics 401(k) plans were charged excessive fees has been tentatively settled for $15.15 Million, according to advisen.com. The lawsuit, representing current and retired employees in the plans, was originally filed in 2006. The suit alleged, among other things, that billions of dollars worth of 401(k) business was handed to a vendor without a competitive bidding process, and that costs/fees for plan participants were inflated. The payout will come from insurance, and will be deposited into the 401(k) accounts, after costs and attorney's fees (yesss!) are subtracted. As part of the settlement, General Dynamics agreed to use an outside consultant to review parts of the 401(k) plans and to "enhance disclosure" of fees and expenses for the accounts.
9. MARYLAND EXPECTS $300 MILLION BUDGET SURPLUS!: Maryland state officials expect to find a $300 Million surplus when they close the state’s fiscal 2010 budget. The gain, according to bizjournals.com, is the result of higher-than-expected tax revenue in final months of the fiscal year, which ended June 30, 2010. The state based its spending during that period on estimates calculated in March, cutting costs to meet those levels. Cuts included furloughs and layoffs for some state employees, as well as trims to state agencies’ budgets. But revenue expectations were exceeded: the state had been expecting $12.2 Billion in tax revenue, but may end up with as much as $12.5 Billion.
10. JUDGE MAY NOT RECEIVE PENSION BENEFITS FROM CITY PLAN BASED UPON SUBSEQUENT HIGHER JUDICIAL SALARY: Los Angeles City Employees Retirement System appealed a judgment in favor of Khan, granting his petition for writ of mandate compelling LACERS to approve his request for concurrent deferred retirement benefits with LACERS and Judicial Retirement System. The sole issue on appeal was whether LACERS and JRS had reciprocity provisions such that Khan, a Judge of the Superior Court of Los Angeles County who had worked for the City of Los Angeles as a City Attorney, may retire from LACERS at his higher judicial salary. The California Court of Appeal concluded that the plans did not have reciprocity, reversed and remanded with directions that the trial court enter judgment in favor of LACERS. The lower court erroneously found that the Los Angeles Administrative Code adopted uniform reciprocal provisions, and provided members of LACERS with reciprocal benefits from any other public agency system adopting similar reciprocal benefits and who by contract agreed to extend the benefits of that system to members of LACERS, and because Public Employees Retirement System and LACERS had reciprocal benefits, therefore LACERS had reciprocity with JRS. In fact, JRS did not have any agreement to bring it within the provisions that would have given it reciprocity with PERS and all other agencies having reciprocal agreements with PERS. The dissent would have affirmed because the statute provides that judges who retire under both JRS and LACERS are entitled to have their LACERS retirement benefits calculated using their highest salary earned under the systems. Khan v. Los Angeles City Employees' Retirement System, Case No. B214685 (Cal.App.4th, August 3, 2010).
11. JOB PERFORMANCE NEED NOT SUFFER BEFORE FITNESS FOR DUTY EXAM REQUIRED: Brownfield was a police officer for the City of Yakima, Washington, Police Department who suffered a closed head injury in an off-duty car accident. After recovering from symptoms including reduced self-awareness, Brownfield returned to full duty. He received positive performance evaluations and was awarded several commendations over the next several years. Four incidents occurred that led the department to refer Brownfield for a fitness for duty exam: (1) he engaged in a disruptive argument with another officer during muster, (2) he reported that he felt himself losing control during a traffic stop, (3) he allegedly battered his estranged wife during a domestic violence incident and (4) he made several statements that indicated feelings of despair. Brownfield was placed on administrative leave and ordered him to undergo an FFDE. Brownfield filed suit in federal court, alleging violations of Americans with Disabilities Act. The district court granted summary judgment in favor of the City, and dismissed Brownfield's claims with prejudice. On Brownfield’s appeal, the U.S. Ninth Circuit Court of Appeals held the City did not violate Brownfield's rights under ADA by requiring an FFDE after he repeatedly exhibited emotionally volatile behavior while serving as a police officer. ADA provides that an employer may not require a medical examination to determine whether an employee is disabled unless such examination or inquiry is shown to be job-related and consistent with business necessity. The court held that the business necessity standard may be met even before an employee's work performance declines if the employer is faced with significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job. An employee's behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions. Brownfield v. City of Yakima, Case No. 09-35628 (US 9th Cir., February 27, 2010).
12. PROFESSOR SAYS IT AGAIN -- DUMP THE 401(K): Well-respected Professor Teresa Ghilarducci says it again, this time in Bloomberg Business Week: “Dump the 401(k).” In October 2008, just as the financial crisis was gathering steam, Professor Teresa Ghilarducci told a congressional committee that it is time to reinvent the 401(k). She suggested a government-guaranteed alternative consisting of diverse and prudent assets, such as blue-chip stocks and bonds. She said the 401(k) was a failure, and the nation should spend its dollars for retirement better. Over the past 30 years, workplace pensions have morphed from defined-benefit plans (in which the company pays retirees a set amount every month from retirement to death) into defined-contribution plans, such as 401(k)s, which are primarily funded by deductions from salaries. In a perfect world, an average worker could amass something like $400,000 in a 401(k) by retirement. After nearly three decades of 401(k) contributions, though, the average account balance for people nearing retirement age is about $60,000, far less than what is needed. So, it is no surprise that when a recent Gallup poll asked what Americans want most from government, more chose guaranteed pensions than guaranteed jobs or health care. Most people save less than 5 percent of their income for retirement, and many start withdrawing funds early because of layoffs, divorces or other unexpected events. The consequence of these 401(k) leaks is that workers retiring in 15 years will do worse than their parents and grandparents; almost two-thirds of households will probably face declining living standards in retirement. Taxpayers are shouldering far more of these leaky retirement boats than anyone imagines. All the tax-free contributions going to 401(k)s and other retirement schemes reduce federal tax receipts by $193 Billion a year. And almost 80 percent of the tax breaks go to the top 20 percent of taxpayers. Let's scale back the tax breaks and use the money to help Americans sock away 5 percent of their pay in safe retirement accounts that would serve as a universal supplement to Social Security. People could keep their employer plan if it met more stringent standards, such as a contribution rate of at least 5 percent, a ban on early withdrawals and conversion into an annuity at retirement. Anyone without an employer plan would automatically be enrolled in a Guaranteed Retirement Account to which employees and employers would equally contribute. The government would then provide everyone a modest tax credit to offset the employee contributions. The return would be guaranteed by the government at about 3 percent above inflation -- or close to the real growth rate in gross domestic product. The key to this proposal is pooling individual accounts, which would be professionally managed, thus lowering management fees. Hence every dollar in tax breaks would translate into almost a dollar in retirement income instead of going toward fees or being diverted to other purposes by people who make withdrawals before retirement. All Americans, including the 64 million who have no pension plan, would get one at no extra cost. She concludes: What's not to like? Hey, Teresa, there is plenty not to like. How about just encouraging defined benefit plans -- the only real pension plans -- which have served this country and its workers well for decades?
13. CALIFORNIA SUPREME COURT REJECTS FEDERAL “STRAY REMARKS DOCTRINE” IN EMPLOYMENT DISCRIMINATION CASES: Reid filed an age discrimination lawsuit against his former employer, Google, Inc. The trial court granted Google's summary judgment motion, but the Court of Appeal reversed. On review by the California Supreme Court, there were two issues. First, does a trial court's failure to rule on a party's evidentiary objections relating to a summary judgment motion waive the objections on appeal? Second, should California courts follow the federal courts in adopting the "stray remarks doctrine" in employment discrimination cases? Under such doctrine, statements that non-decision-makers make or that decision-makers make outside the decisional process are deemed "stray," and are irrelevant and insufficient to avoid summary judgment. In this case, the Court of Appeal found that the trial court's failure to rule expressly on evidentiary objections did not waive those objections on appeal. Specifically, it ruled that Google's filing of written evidentiary objections before the summary judgment hearing was sufficient to preserve those objections on appeal. Accordingly, it reviewed Google's evidentiary objections on the merits. Further, the Court of Appeal further refused to apply the stray remarks doctrine to exclude alleged discriminatory statements that Reid's supervisors and co-workers made. In reversing the trial court's grant of Google's summary judgment motion, the Court of Appeal considered those alleged statements and other evidence Reid presented in opposition to the motion. The California Supreme Court agreed with the Court of Appeal's conclusions. Regarding the waiver issue, the Court of Appeal correctly determined that a finding of waiver does not depend on whether a trial court rules expressly on evidentiary objections and that Google's filing of written evidentiary objections before the summary judgment hearing preserved them on appeal. If the trial court fails to rule after a party has properly objected, the evidentiary objections are not deemed waived on appeal. Regarding the stray remarks issue, the Court of Appeal also correctly determined that application of the stray remarks doctrine is unnecessary and its categorical exclusion of evidence might lead to unfair results. For example, an age-based remark not made directly in context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination. Second, strict application of the stray remarks doctrine would be contrary to procedural rules codified by statute and adopted in California cases, which direct that, at summary judgment stage, courts shall consider all of the evidence set forth in the papers and all inferences reasonably deducible from the evidence. Third, the stray remarks cases merely demonstrate the common-sense proposition that a slur, in and of itself, does not prove actionable discrimination. Fourth, because there is no precise definition of who is a decision-maker or what constitutes remarks made outside of the decisional process in the employment context, federal circuit courts have diverged in determining what constitutes a stray remark. Finally, federal courts have treated identical remarks inconsistently. Reid v. Google, Inc., Case No. S158965 (Cal., August 5, 2010).
15. MOST PLANS EXEMPT FROM TRUTH IN LENDING ACT DISCLOSURES: On July 1, 2010, revised regulations issued by the Board of Governors of the Federal Reserve System became effective to exempt most plan loans from the Truth in Lending Act's disclosure requirements (see C&C Newsletter for April 2, 2009, Item 1). TILA requires a person who regularly extends consumer credit to disclose certain of the key terms of the arrangement. The purpose of disclosure is to provide the information necessary to protect consumers from unfair billing practices and to enable them to make informed choices about use of credit. Participant loans from employer-sponsored retirement plans were previously subject to the Act as closed-end plans. Thus, retirement plans that extended more than 25 loans per year were obligated to disclose, in the format prescribed in the regulation, various terms of the loan, including the amount financed, an itemization of the amount financed, the finance charge, the annual percentage rate, the payment schedule, the total of payments, any demand feature, any prepayment penalties, any late payment charges, any security interest held by the creditor, etc. In deciding whether to carve out an exemption for plan loans, the Board examined the nature of loans against the purpose of TILA. The fact that in plan loans the interest and principal payments are reinvested in the participant's own account, and no third-party creditor imposes finance charges on the participant, were critical features in the Board's decision to exempt them from the Act's requirements. As a result, effective July 1, 2010, exempt from TILA are loans to plan participants that are made in accordance with Internal Revenue Code requirements from fully-vested funds in a participant's own account in:
By its terms, the exemption applies only to loans extended to plan participants, so it would not apply to loans extended to a beneficiary or an alternate payee under a Qualified Domestic Relations Order. The exemption would not apply where the loan is made other than in compliance with Internal Revenue Code requirements. For example, loans that inadvertently violate the IRC §72(p) parameters (the maximum 5-year term, the maximum loan amount, the level amortization requirement, etc.) would not be covered by the exemption, and, therefore, would be subject to disclosure requirements. Also, in the event an IRC §401(a) plan fails to be qualified, applicability of the exemption would be an issue. This reminder comes to us from Deloitte.
16. WILL OKLA. TEACHERS SUE EMPLOYER?: Oklahoma Teachers' Retirement System could sue the Oklahoma Board of Education for refusing to make its $35 Million employer contribution, according to pionline.com. Feeling budget cuts by the state Legislature, the Board of Education approved its own budget, directing funding to education programs, rather than to the pension fund. Fund officials are considering their options, but hope the Legislature will approve supplemental funding in February. The $8.3 Billion retirement system annually takes in and pays out about $850 Million in employer and employee contributions and dedicated state revenues. Thirty-five Million dollars will have an impact, but will not stop benefits from being paid. As of June 30, 2009, Oklahoma Teachers had a funded ratio of 49.8% (one of the lowest in the country). The average state fund was 65% funded as of that date.
17. CALIFORNIA PREVENTED FROM IMPOSING NEW FURLOUGHS: An Alameda County Superior Court judge has temporarily barred California Gov. Arnold Schwarzenegger from imposing new furloughs on state workers (see C&C Newsletter for July 8, 2010, Item 6 and C&C Newsletter for July 29, 2010, Item 11). Sacbee.com reports that the judge heard two hours of argument over the governor's demand that 144,000 state employees take unpaid time off. The judge granted a temporary restraining order, saying it appears the governor's executive order is inconsistent with various provisions of state law. The governor vowed an immediate appeal in an effort to begin his furlough program as soon as possible -- of course.
19. OXYMORON: What do you call a fish with no eyes? A fsh.
20. AGING JOKES: My memory's not as sharp as it used to be. Also, my memory's not as sharp as it used to be.
21. FABULOUS RANDOM THOUGHTS: I hate being the one with the remote in a room full of people watching TV. There's so much pressure. I love this show, but will they judge me if I keep it on? I bet everyone is wishing we weren’t watching this. It's only a matter of time before they all get up and leave the room. Will we still be friends after this?
22. QUOTE OF THE WEEK: “In the middle of difficulty lies opportunity.” Albert Einstein.
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