Roundup: 1st, 2nd, 6th and 11th Circuits

Timing is everything in non-compete agreements; disabled employee entitled to workplace accommodations; fine for unsolicited telemarketing calls deepens circuit split; employee replaced with technology loses age discrimination suit

1st Circuit: Timing is everything in non-compete agreements

A 1st Circuit decision on Aug. 26 in EMC Corporation v. Emanuel Arturi found that time limits for a non-compete agreement vary based on the language used in the contract between the employer and employee.

EMC Corp. filed a preliminary injunction in November 2010 after Emanuel Arturi, a previous employee of the company, joined a competitor and allegedly breached his contract with EMC. The district court denied the request, finding that the one-year non-compete agreement had expired while EMC was waiting for the outcome of its preliminary injunction request.

The 1st Circuit upheld the district court’s ruling, referencing a prior 1st Circuit decision in which the court reversed a district court’s granting of an injunction after a non-compete expired. The court noted that the company may have had more leverage in its argument if the language in its non-compete agreement had included a hold on the expiration date of the contract if it filed a preliminary injunction.

2nd Circuit: Disabled employee entitled to workplace accommodations

On Aug. 10, the 2nd Circuit ruled in Nixon-Tinkelman v. N.Y.C. Dept. of Health & Mental Hygiene that employers may be obligated to provide reasonable transportation accommodations for disabled employees.

Barbara Nixon-Tinkelman’s employer, the New York City Department of Health, transferred her from Queens to Manhattan for 13 months while she was suffering from cancer, heart problems, asthma and hearing impairment. She charged the department with violating the Americans with Disabilities Act by refusing to assist her with her commute.

The district court ruled that accommodating a worker’s commute is outside of an employer’s responsibility. The 2nd Circuit, however, vacated and remanded the court’s decision, ruling that Nixon-Tinkelman’s employer could have provided her with possible accommodations such as working from home or providing a parking permit.

The court said that companies should assess the need for employee accommodations on a case-by-case basis depending on factors such as the number of offices a company has, the ability of an employee to work in a different position and whether an employee could work from home without on-site supervision.

6th Circuit: Fine for unsolicited telemarketing calls deepens circuit split

The 6th Circuit ruled on Aug. 30 in Charvat v. NMP, LLC that federal courts can hear private Telephone Consumer Protection Act (TCPA) claims, which seek to enforce the restriction of the use of unsolicited automated dialing systems and prerecorded voice messages, and expanded the statutory damages a defendant may pay for TCPA violations.

Philip Charvat sued NMP and Media Synergy Group for violating the TCPA after he received 33 unsolicited telemarketing calls while on the companies’ do-not-call lists. Live agents made two of the phone calls, while the remaining prerecorded messages asked Charvat to join the NASCAR Membership Club. The district court dismissed Charvat’s claims, stating there was no federal question jurisdiction over private TCPA claims.

The 6th Circuit reversed the decision, finding that there is federal question jurisdiction over private TCPA claims. The court also reversed the district court’s ruling that a violation of privacy hadn’t occurred. The court awarded Charvat $46,500 in damages for the companies’ violations of the procedures involved in maintaining do-not-call lists. The award included statutory damages for violating the TCPA’s automated call and do-not-call-list subsections on the same phone call.

The case further deepens a split among the circuits as to whether federal courts have jurisdiction over TCPA claims.

11th Circuit: Employee replaced with technology loses age discrimination suit

On July 20, the 11th Circuit denied a plaintiff’s charge that his company exhibited age discrimination when it replaced him with a computer system.

In Gortemoller v. Int’l Furniture Mktg., Inc., Thomas Gortemoller filed a lawsuit against his employer, International Furniture Marketing, claiming the company replaced him with a younger employee and discriminated against his age. International Furniture Marketing claimed it didn’t replace Gortemoller with a younger employee, but instead replaced him with a web-based computer program used to imitate the communication he was conducting for the company.

The district court granted summary judgment to the company, finding Gortemoller didn’t demonstrate that he was replaced by a younger person. Gortemoller appealed, and the 11th Circuit affirmed the district court’s decision.

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