Blog Post

Casamento v. MBTA , No. 08-1773 (1st Cir. Dec. 16, 2008); Bottenberg v. Carson Tahoe Hospital, No. 07-16103 (9th Cir. Dec. 15, 2008)

Posted by: Paul Mollica
December 16, 2008
Topic: Daily Developments in EEO Law

A Title VII duty-of-fair-representation case fizzles out in the First Circuit. And, courtesy of the Ninth Circuit, now I have a new rule of thumb for which kinds of clients not to take if they should walk through the door.

Casamento v. MBTA, No. 08-1773 (1st Cir. Dec. 16, 2008); The employee sued her employer and the union, claiming that she was not considered for a job vacancy because of her gender and that that the union failed to grieve her complaint. As the panel opinion stated "On June 23, 2003, before anyone was interviewed, Susan Wolfson, the MBTA's Director of Revenue, informed all the applicants that the posting of the job was rescinded. The stated reasons for the position not being filled were primarily budget constraints and because a new automated fare system might affect staffing requirements." The union stated taht because the job was not within the bargaining unit, it could not file a grievence.

The First Circuit affirms, holding that the employer's decision to rescind the job posting showed no sign of being motivated by sex. As for the union, "[o]nce again, there is no evidence in this case of gender discrimination. The union explained its refusal to pursue a grievance on behalf of Casamento, giving colorable reasons entirely unrelated to the fact that she is a woman. Nothing to which Casamento points suggests that its given reasons were false, let alone that the true underlying reason was gender discrimination on the part of the union. No court could send such a case to trial because there was nothing to be tried."

Bottenberg v. Carson Tahoe Hospital, No. 07-16103 (9th Cir. Dec. 15, 2008): I always tell plaintiff lawyers' groups, whenever I make a presentation, never -- but never -- sign up a client who (1) downloaded porn on an office PC, or (2) threw the first punch. Now, courtesy of this unpublished opinion, I have a third item to add to the list: never represent a health professional who breaks into medical records, even for a family member.

The employee (who lost on summary judgment and on appeal) was fired, and here's the record in a nutshell: "First, the evidence in the record demonstrates that CTH initiated its investigation into the unauthorized accessing of Amy Bottenberg's ('Amy') medical records in response to Dr. B. Bottenberg's ('Dr. B') and Amy's complaints, and not in response to complaints made by Smith. Second, by [plaintiff] Jodona's [Bottenberg's] own admission, she accessed Amy's medical records from two to seven times, and shared information from Amy's medical records with others, without Amy's permission to do so." Sounds remarkably like this case, from last summer.