(Reuters) – U.S. package delivery company United Parcel Service Inc said on Wednesday it expected to hire about 95,000 seasonal employees for the upcoming, crucial peak holiday season.

By Kathleen Kapusta, J.D.

Overruling prior precedent approving the inference that a plaintiff intended to make a mockery of the judicial system solely because she failed to disclose her civil claim in bankruptcy, the en banc Eleventh Circuit, in agreement with the Sixth, Seventh, and Ninth Circuits, held that district courts should consider all the facts and circumstances of the case to determine whether the debtor had the requisite intent. Having identified the proper standard for determining when judicial estoppel may be applied, the en banc court remanded to the panel to consider whether the district court abused its discretion in applying judicial estoppel to the employment discrimination claims of a U.S. Steel Corporation employee who failed to disclose those claims as assets in her bankruptcy. Judge Carnes filed a separate concurring opinion (Slater v. U.S. Steel Corp., September 18, 2017, Pryor, J.).

Twenty-one months after suing U.S. Steel for race and sex discrimination, the employee, a high school graduate, filed a Chapter 7 bankruptcy petition (in which she was represented by a different attorney). In filling out her statement of financial affairs under the penalty of perjury, she answered “none” when asked if she had any “contingent and unliquidated claims” and if she was or had been a “party” to any “suits and administrative proceedings” in the prior year. Upon learning that she had not disclosed her discrimination suit in the bankruptcy proceedings, U.S. Steel moved for summary judgment, arguing that her claims should be barred by judicial estoppel.

Amended. The next day, the employee amended her bankruptcy petition to disclose the suit. The bankruptcy trustee then filed with the bankruptcy court a request to employ the lawyers who were representing the employee in her employment action to continue to pursue the claims against U.S. Steel on behalf of the estate. The bankruptcy court granted the motion and the bankruptcy case proceeded. Upon the employee’s petition, the case was converted from a Chapter 7 to a Chapter 13 proceeding, and the employee filed a proposed Chapter 13 plan. When she failed to pay the trustee, however, under the terms of the confirmed plan, the bankruptcy court dismissed her case and her debts were never discharged.

Panel decision. The district court then granted U.S. Steel’s motion for summary judgment, applying the doctrine of judicial estoppel to bar her claims and rejecting her assertion that she inadvertently omitted her civil claims in the bankruptcy proceeding. She appealed and an Eleventh Circuit panel affirmed. In a concurring opinion, Judge Tjoflat urged the court to review en banc precedent permitting the inference that a plaintiff who omitted a civil claim as an asset in bankruptcy filings necessarily intended to make a mockery of the judicial system. The court agreed to rehear the case en banc and vacated the panel opinion.

Two-part test. Observing that it employs a two-part test to guide district courts in applying judicial estoppel—whether (1) the party took an inconsistent position under oath in a separate proceeding, and (2) these inconsistent positions were “calculated to make a mockery of the judicial system”—the en banc court explained that under this test, district court considers both the plaintiff’s actions and his motive. Focusing on the second part, the court noted that in Burnes v. Pemco Aeroplex, Inc., and Barger v. City of Cartersville, it endorsed an inference that a plaintiff who failed to disclose a lawsuit in a Chapter 7 bankruptcy intended to manipulate the judicial system because the omission was not inadvertent. It subsequently extended the reasoning of those decisions to cases involving Chapter 13 debtors as well.

Conflict. While the court noted that in two panel decisions after Burnes and Barger it applied judicial estoppel more narrowly, it found those decisions could not be reconciled with its prior precedent. In Parker v. Wendy’s Int’l, Inc., the appeals court reversed the district court’s application of judicial estoppel to bar an employment discrimination claim that a debtor failed to disclose as an asset in his Chapter 7 bankruptcy petition, reasoning that judicial estoppel should not be applied in that case because when the debtor filed Chapter 7 bankruptcy, the trustee, as representative of the bankruptcy estate, became “the proper party in interest, and … the only party with standing to prosecute causes of action belonging to the estate.”

In that case, the court held that because the trustee was the real party in interest in the civil lawsuit, had never taken an inconsistent position under oath, and had not abandoned the discrimination claim, the district court abused its discretion in applying judicial estoppel. Parker, however, could not be reconciled with Barger, which upheld the application of judicial estoppel to bar civil claims that the Chapter 7 debtor failed to disclose, even though the court acknowledged that the trustee was the real party in interest there too.

And in Ajaka v. Brooksamerica Mortgage Corp., the appeals court, relying in part on the fact that the plaintiff had subsequently amended his bankruptcy schedules, found the district court abused its discretion in applying judicial estoppel when there was a question of material fact about whether the plaintiff intended to conceal his civil claim from his creditors. Ajaka, said the en banc court, could not be squared with Burnes and Barger, which looked solely to whether the debtor omitted a claim to determine the debtor’s intent.

Totality of the facts and circumstances. Given the flaws in the reasoning of Burnes and Barger and the inconsistencies in its precedent, the court turned to how district courts should evaluate a debtor’s intent, holding that to determine whether a plaintiff’s inconsistent statements were calculated to make a mockery of the judicial system, a court should look to all the facts and circumstances of the particular case. When the plaintiff’s inconsistent statement comes in the form of an omission in bankruptcy disclosures, the court may consider such factors as the plaintiff’s level of sophistication, whether and under what circumstances the plaintiff corrected the disclosures, whether the plaintiff told his bankruptcy attorney about the civil claims before filing the bankruptcy disclosures, whether the trustee or creditors were aware of the civil lawsuit or claims before the plaintiff amended the disclosures, whether the plaintiff identified other lawsuits to which he was party, and any findings or actions by the bankruptcy court after the omission was discovered.

In rejecting the inference it accepted in Burnes and Barger in favor of a rule that a district court should look to all the circumstances of the case, the court pointed out that such an inquiry ensures that judicial estoppel is applied only when a party acted with a sufficiently culpable mental state. It allows a district court to consider any proceedings that occurred in the bankruptcy court after the omission was discovered, and limiting judicial estoppel to those cases in which the facts and circumstances warrant it is more consistent with the equitable principles that undergird the doctrine.

While U.S. Steel argued that no change to its precedent was required because even when a district court finds that the plaintiff intended to manipulate the judicial system, the court remains “entirely free to find in particular circumstances that a debtor’s omission was inadvertent,” the court noted that no plaintiff who omitted civil claims from bankruptcy disclosures will be able to show that he acted inadvertently because the plaintiff will always have knowledge of his pending civil claim and a potential motive to conceal it due to the very nature of bankruptcy.

As to its argument that overruling Burnes and Barger would create a circuit split, the court pointed out that a circuit split already exists, and its newly adopted approach is consistent with the decisions of at least three other circuits, which have recognized that whether a plaintiff intended to make a mockery of the judicial system requires consideration of more than just whether the plaintiff failed to disclose a claim. Accordingly, the court remanded the appeal to the panel to consider whether the district court abused its discretion in applying judicial estoppel.

By Kathleen Kapusta, J.D.

An employee fired shortly after telling his supervisor he had PTSD could not establish pretext for disability discrimination by pointing to, among other things, his recent positive performance evaluations or a relatively minor misstatement in the employer’s EEOC position statement. Nor did the fact that the decisionmakers questioned the veracity of his PTSD claim show that the stated reason for discharging him—creating a hostile and intimidating work environment for his subordinates—was pretextual, the Seventh Circuit ruled, affirming summary judgment against his ADA and Rehab Act claims (Monroe v. Indiana Department of Transportation, September 18, 2017, Williams, A.).

A long-time state transportation department employee was fired shortly after seven or eight of his subordinates complained to his supervisor that he screamed at them, treated them badly, threatened to fire them, and publicly ridiculed one subordinate who had a hearing impairment. When his manager informed the employee about the complaints, the employee told him that he had been diagnosed with PTSD. During a subsequent investigation by the HR manager, other employees confirmed he was intimidating, volatile, and demeaning. After discussing whether his PTSD diagnosis was legitimate given that it occurred right after the complaints against him, the employee’s manager, the HR manager, and two others decided to terminate him.

The employee then sued, claiming he was terminated on the basis of his disability in violation of the ADA and the Rehab Act, and the district court granted summary judgment against his claims.

Pretext. On appeal, the employee argued that the district court ignored evidence of pretext, including that he received positive performance evaluations for the three years leading up to his termination and therefore he could not have “consistently” exhibited hostile and intimidating behavior; his employer made a misstatement regarding the number of employees who complained about him; made inconsistent statements during discovery regarding whether his supervisor told the HR manager and other decisionmakers about his PTSD; and the decisionmakers discussed his PTSD before deciding to terminate him.

Performance evaluations. Rejecting this contention, the appeals court first pointed out that while he did receive positive performance evaluations for three years before his discharge, including his last evaluation that was completed less than one month before he was fired, his supervisor did not know of his continued and serious mistreatment of his subordinates before several of them complained. Upon learning of the complaints, the supervisor went to his supervisor and the HR manager, who then conducted an extensive investigation, which confirmed the complaints. Thus, the earlier positive evaluations did not call into question the employer’s proffered reason for discharge.

Misstatement. The employee next pointed to the misstatement in the employer’s position statement to the EEOC indicating that seven subordinates were present at a safety briefing that prompted the complaints and that all seven went to the employee’s supervisor to complain. The employee argued that he supervised 18 employees and thus, if none was absent, not all of them went to complain to his supervisor after the meeting. Here, said the court, while it is more compelling to say that all employees at the meeting went to complain about their supervisor, it was not significant that seven or eight out of 18 went to complain. In short, although the statement was careless, is was not significant enough to create a fact issue as to pretext.

Who told whom? The issue of whether the employee’s supervisor told other decisionmakers about the employee’s PTSD was similarly insignificant, said the court, noting that while there was some disagreement amongst the decisionmakers over this, it was undisputed the employee himself told the other decisionmakers about his diagnosis. Thus, he could not establish pretext by pointing to a disagreement between two defense witnesses regarding an insignificant detail.

Discussion of PTSD. Nor did the fact that the decisionmakers discussed the employee’s claim he had PTSD during the meeting at which they decided to fire him establish pretext. According to the HR manager, they discussed whether he actually had PTSD, given the fortuitous timing of his disclosure and his failure to submit any documentation from a health care provider confirming the diagnosis. Moreover, the court observed, even if they believed he had PTSD, and that this caused him to not be able to sleep and to be volatile toward his subordinates, an employer may, consistent with the ADA and the Rehab Act, terminate an employee for inappropriate behavior even when that behavior is precipitated by the employee’s disability.

Comparators. And while the employee also argued that three nondisabled employees engaged in similar misconduct but were not fired, they were not similarly situated. As to the first, there was very little evidence regarding his misdeeds and thus the employee failed to show his behavior was comparable. Nor were any of the supervisors involved in the employee’s discharge involved in the decision to take away the alleged comparator’s supervisory responsibilities.

Further, at the time the two alleged comparators engaged in arguably similar misconduct and were not fired, the state agency’s employees could be terminated only if it could show “just cause” for the discharge. When the employee, however, engaged in the misconduct for which he was fired, employees were employed “at will” and the employer no longer had to show just cause for discipline. Further, the second comparator was not discharged during the “just cause” time period but was given the option to resign or be fired during the “at will” time period after he angrily approached a former supervisor and yelled at him.

The court also rejected the employee’s assertion that, because he was fired on the basis of a disability, his termination fell under the public policy exception to the employment-at-will doctrine and therefore he should be considered a “just cause” employee. However, Indiana’s public policy exception has been narrowly construed to apply only to persons discharged for filing a workers’ compensation claim or for refusing to commit an illegal act and the employee failed to create a fact issue regarding whether he was fired on the basis of a disability.

Finally, as to the third comparator, the court found his misconduct—telling two coworkers to “get away from the f****** truck” he wanted to drive, throwing down a squeegee, and stomping his feet—was not as egregious as the employee’s. And while he was later demoted for putting his hands on a coworker, the two incidents occurred over a year apart whereas the employee created a hostile and abusive work environment for his subordinates over a lengthy period of time, including targeting an employee with a hearing disability. Thus the district court did not err in granting summary judgment.

By Joy P. Waltemath, J.D.

Reversing summary judgment to a county employer on only one of several FLSA claims for unpaid pre- and post-shift work, the Tenth Circuit found that a 911 dispatcher presented sufficient evidence for a jury to find that the county had to compensate her for the undisputedly integral and indispensable activity of being briefed by the outgoing dispatcher, which according to written policy, she was required to be at work five minutes before her shift began to receive. In an unpublished two-judge decision (now-Justice Neil Gorsuch had been on the panel for oral argument, but the remaining two panel judges were in agreement and so could act as a quorum to resolve the appeal), the court found this pre-shift activity was both ascertainable—five minutes per shift, per policy—and a “fixed or regular working time,” and a “practically ascertainable period of time [s]he is regularly required to spend on duties” so that it could not be disregarded as de minimis (Jimenez v. Board of County Commissioners of Hidalgo County, September14, 2017, per curiam).

District court dumps all claims. Although two former county employees (a jail detention officer and the 911 dispatcher) originally filed suit claiming that the county required them to attend pre- and post-shift briefings (plus perform daily pre-shift tasks) but did not compensate them and also failed to pay for “on call” time, the district court granted the county summary judgment on all these FLSA claims. And for the most part, the Tenth Circuit agreed that only the pre-shift briefings for the detention officer qualified as compensable work; the women failed to present sufficient evidence as to how much unpaid overtime they worked; and neither woman established that she spent her on-call time predominantly for the county’s benefit.

Dispatcher’s pre-shift briefing—written or oral. As for the dispatcher’s claim that the county’s written policy required her to be at work five minutes before her shift began to be briefed by the outgoing dispatcher, the district court had found that the pre-shift briefing was not integral and indispensable to the principal activity for which she was hired because she could get the same information about what was happening county-wide for first responders at the start of her shift by reading the dispatcher desk notes—instead of being briefed by the outgoing dispatcher. But the appeals court pointed out that this too would require pre-shift time from the dispatcher.

Integral and indispensable. “No one argues that it is not integral and indispensable for the incoming dispatcher to obtain this information in some manner before beginning her shift, the Tenth Circuit pointed out, finding sufficient evidence for a jury to find that the county had to pay her for the five extra minutes it required her to be at her job, pre-shift, to one way or another receive information that is integral and indispensable to her principal activity of being a 911 dispatcher.

Ascertainable, fixed, and regular five minutes. And the dispatcher produced sufficient evidence of how much overtime she was owed: five minutes each shift, per the county’s written policy. This five minutes each shift could not be disregarded as de minimis because the regulation allowing an employer to disregard insubstantial and inconsequential amounts of time (29 C.F.R. § 785.47) “applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration.” That regulation further provides that “[a]n employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.”

In the Tenth Circuit’s view, the county, by its written policy, required dispatchers to be at work five minutes before every shift. That is a “fixed or regular working time,” and a “practically ascertainable period of time” the dispatcher was “regularly required to spend on duties.” As a result, the appeals court reversed summary judgment on the dispatcher’s pre-shift overtime claim.

(Reuters) – Wall Street opened little changed on Wednesday as investors waited for the conclusion of the two-day Federal Reserve meeting for indications of a third interest rate hike this year.

(Reuters) – Toys “R” Us Inc has been making $400 million in interest payments on its debt every year, largely due to its $6.6 billion leveraged buyout in 2005. This week, it succumbed to its debt burden, leading to the biggest bankruptcy of a U.S. retailer since that of Kmart in 2004.

HONG KONG/SINGAPORE (Reuters) – Slowing innovation at iPhone maker Apple gives Asian rivals their best chance yet to conquer developed markets, retailers and consumers say – thanks to better designs and lower prices.

New job advertisements in Australia on job board SEEK, increased by 13.2% in August when compared to the same period last year. This was the highest year-on-year ad growth as well as the highest number of job ads since 2010.

The data from SEEK showed that ads for mining, resources and energy workers grew at 72%, year-on-year, this was the strongest growth recorded in August. It was followed by Science and Technology (36%) and farming, animals and conservation (35%).

“The pick-up of exploration activities by mining companies, especially in Western Australia after cutbacks over the past few years, is driving job advertising growth on SEEK across the sector,” Michael Ilczynski, managing director for Seek Australia and New Zealand, said.

“These positive trends in advertising on SEEK point to an improving labour market and suggests that positive economic momentum, evident in the June quarter National Accounts GDP Report, is continuing into the second half of the year,” Ilczynski said.

All states and territories recorded positive year-on-year job ad growth on SEEK with Tasmania recording the strongest growth (33.8%). Furthermore, SEEK added that advertisements in the Northern Territory, Queensland and Western Australia — Australia’s mining states and territories — all recorded stronger growth than the national average over the past year, increasing by 23.7%, 20.3% and 14.8% respectively.

The Monster Employment Index for the Philippines shows online recruitment contracted by 2% in July compared to the previous year.

The index is a monthly gauge of online job hiring activity by Monster.com, which records the industries and occupations that show the highest and lowest growth.

According to the index for July, the Retail sector reported the sharpest growth in online hiring activity at 8% year-on-year, while the Advertising, Market Research, Public Relations, Media and Entertainment sector recorded the sharpest fall at -17% year-on-year.

Among the occupations in July, Customer Service talent were the highest in demand with 5% growth, year-on-year, while HR and Admin professionals saw the steepest annual decline at -16%.

Philippines’ unemployment stood at 5.6% in July, according to the Philippine Statistics Authority.

Figures from the International Labour Organisation and the Walk Free Foundation showed that in 2016, there was an estimated 40.3 million people around the world in modern slavery with 24.9 million of them in forced labour.

The ILO’s 2017 Estimates of Modern Slavery report calculates that of 24.9 million victims of forced labour, 16 million are thought to be in the private economy, 4.8 million in forced sexual exploitation and 4.1 million in state-sponsored forced labour including mandatory military conscription and agricultural work.

Child labour remains concentrated primarily in agriculture (70.9%). Almost one in five child labourers work in the services sector (17.1%) while 11.9 % of child labourers work in the industrial sector.

The ILO states that forced labour can be understood as work that is performed involuntarily and under the menace of any penalty. They add that the global estimates of modern slavery focus on two main issues: forced labour and forced marriage. The estimate of forced labour comprises forced labour in the private economy.

“What is startling about these new estimates is the sheer scale of the modern slave trade and the fact that we have 40 million people across the world in some form of modern slavery is simply not acceptable,” said Fiona David, executive director of global research at the Walk Free Foundation.