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Following are recent employment cases of note: 11th Circuit FMLA Regulations Are Held to Be Invalid The plaintiff requested leave under the Family and Medical Leave Act in order to care for her mother. The employer did not respond to her request for about a month, then denied the request because the employee had not worked sufficient hours in the previous 12 months to be eligible for leave. The plaintiff sued, claiming that the company could not deny the job-protected leave because it did not notify her of her ineligibility within the two-day time limit set out in the FMLA regulations promulgated by the Department of Labor. The district court held that the notice regulation was invalid because it expanded the rights of employees beyond what was provided for in the statute. The 11th U.S. Circuit Court of Appeals agreed, joining the 7th Circuit and federal district courts in Ohio, Maryland and Virginia. The court reasoned that the Department of Labor’s regulation would grant leave to employees who were otherwise ineligible for FMLA leave, a result contrary to Congress’ intent in passing the statute. Brungart v. BellSouth Telecommunications Inc., No. 99-14472 (11th Cir. Oct. 24, 2000). 6th Circuit Public Employee Case Will Have Broad Impact In a case involving public employees that will apply to the private sector, the 6th U.S. Circuit Court of Appeals held that the creation of a promotion list, not promotions from the list, is the act that results in discrimination and gives rise to a cause of action. In May 1996, the police department issued a list of candidates eligible for promotion. The list was based on the results of examinations and other assessments. Five of the candidates were white women, none of whom were promoted before the list expired two years later, although five of six black female candidates were promoted. The white women filed charges of race discrimination against the department in November 1998. The EEOC dismissed the charges, saying that they were untimely. The women filed suit in federal court, claiming the department had coached preferred candidates — those who were not white women — for the eligibility tests and had even given them test questions to study in advance. This resulted, the plaintiffs said, in a tainted eligibility list in which each promotion was a separate act of discrimination. The district court agreed with the police department and dismissed the suit, holding that any discrimination occurred when the eligibility list was created, not when promotions from the list occurred, thus making the suit untimely. The 6th Circuit upheld the lower court, noting that all promotions were made in rank order — that is, the highest-rated person on the list was the first promoted, and so on. Thus, the application of the list was non-discriminatory. Any discrimination that took place occurred more than two years before the plaintiffs filed their charges, when the list was established. Cox v. City of Memphis, No. 99-5789 (6th Cir. Oct. 18, 2000). 1st Circuit Mexico Is Denied Standing to Sue A foreign nation has no standing to bring a civil rights suit on behalf of its citizens. Fourteen individuals and the government of Mexico brought suit against an egg farm, claiming that workers of Mexican descent were treated harshly because of their Mexican background. The company moved to dismiss Mexico from the suit, contending it had no standing to pursue the rights of the affected workers. The district court agreed and dismissed Mexico from the suit. On appeal, Mexico argued that, like individual states in the United States, it had standing in its capacity as parens patriae to the Mexican workers. The 1st U.S. Circuit Court of Appeals upheld the district court. It noted that individual states can sue on behalf of its citizens in some cases because the states have ceded to the federal government their right to negotiate with other states and to use force if negotiations fail. Without these tools, the citizens of individual states could be greatly disadvantaged in their dealings in other states. Mexico, however, retains these rights. Moreover, the conduct of foreign affairs is the responsibility of the executive and legislative branches of the U.S. government, and the judiciary cannot interfere with or hinder the conduct of those affairs. Estados Unidos Mexicanos v. Decoster, No. 99-2170 (1st Cir. Oct. 11, 2000). David Ritter and Janet Kyte are both partners at Chicago’s Altheimer & Gray.

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