Case of the Day: Gogel v. Kia Motors Mfg. of Ga., 2018 U.S. App. LEXIS 27211 (11th Cir. Sept. 24, 2018)

Summary:

Plaintiff claimed discrimination based on sex and national origin against the defendant, a South Korean carmaker located in Georgia. Plaintiff was made to serve as a greeter to visiting executives from Korea, and was not promoted. The plaintiff was then terminated when she began an investigation into an affair between a female employee and a male executive, and encouraged other employees to file complaints against the company. In the lower court, the defendant prevailed in summary judgment.

The Eleventh Circuit vacated the summary judgment as to the retaliation claim, while affirming the summary judgment as to the discrimination claims. The court found that, while the plaintiff worked outside of the firm's internal procedure by encouraging employees to file complaints, she did so because the internal procedures were insufficient to handle the issues at hand.

Takeaway:

Here we have an interesting twist into a previously existing situation. Asian companies with factories in the United States often faced claims of discrimination. Here's the twist: the employer-friendly laws of these jurisdictions are locking in the discriminatory practices. The plaintiff in this case managed to reverse one of the summary judgments against her, but the other summary judgment stood, and there was a dissent as to the reversed judgment.

Case of the Day: Melaleuca, Inc. v. Kot Nam Shan, 2018 U.S. Dist. LEXIS 71296 (D. Idaho Apr. 24, 2018)

Summary:

Plaintiff is an Idaho-based supplements company with a wholly owned subsidiary in China. To aid the marketing in China, plaintiff hired the defendant marketing director. The plaintiff alleges the defendant resigned and began working for a competitor in China, in violation of the non-compete agreement between the parties. Defendant moved to dismiss based on forum non conveniens and lack of personal jurisdiction.

The court granted the motion on both counts. The court found there was no personal jurisdiction because although the defendant may have directed his statement toward recipients in Idaho, the effect of the breach was felt in China. The court also found China provided adequate alternate forum.

Takeaway:

Idaho has been one of the states that had been more favorably disposed to exercising long arm jurisdiction, but a case like this seems to mark a change in direction.

Case of the Day: Manning v. Erhardt+Leimer Inc., 2018 U.S. Dist. 68065 (W.D.N.Y. Apr. 20, 2018)

Summary:

Plaintiff was a former employee of the defendant, a South Carolina corporation that is a wholly owned subsidiary of a German corporation. Plaintiff alleged he was terminated due to age discrimination, and his job was given to younger employees from India. Plaintiff brought action based on Age Discrimination in Employment Act and the New York State Human Rights Act.

The court granted the motion to dismiss as to the German parent corporation. The court found it had no subject matter jurisdiction, as ADEA did not apply to the foreign parent of a domestic subsidiary. The court also declined to exercise supplemental jurisdiction based on the N.Y. Human Rights Act. The court further held it had no personal jurisdiction over the German parent corporation.

Takeaway:

Pretty thin connection to Asia I know, but it is always interesting to see the extraterritorial application (or lack thereof) of a major federal statute like ADEA.

Case of the Day: Oseguera v. Zhu, 2018 U.S. Dist. LEXIS 37642 (N.D. Cal. Mar. 7, 2018)

Summary:

Former workers of a Japanese restaurant in California sued the restaurant's owner for alleged violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. s. 201 et seq. Defendant moved to dismiss based on lack of subject matter jurisdiction, arguing the restaurant did not engage in interstate commerce and therefore did not fall under the federal law's coverage.

The court denied the motion, noting that even if the restaurant had procured its products within California, such products passed through interstate commerce. Defendant could not avoid FLSA's coverage simply because he purchased supplies from the local vendor, if the local vendor had procured the supplies from out of state.

Takeaway:

Does everyone remember Wickard v. Filburn from law school? The much-maligned New Deal era Supreme Court case is still with us!

Case of the Day: Xu v. Bd. of Regents of the Univ. of Wis. Sys., 2018 U.S. Dist. LEXIS 10406 (W.D. Wis. Jan. 22, 2018)

Summary:

Plaintiff is a Chinese American librarian of the University of Wisconsin-Madison. Plaintiff disputed with her supervisor as to how to categorize a Chinese language newspaper published in Taiwan of the 1940s, when Taiwan was a Japanese colony. Although the newspaper was originally categorized under "China," the supervisor re-categorized the paper under a new category of "Taiwan" following a suggestion from a student. Plaintiff and the supervisor engaged in a heated argument about the decision, and the plaintiff received a negative performance review as a result. The plaintiff also collapsed due to high blood pressure during this episode. Subsequently, the plaintiff filed a claim under Title VII of the Civil Rights Act for hostile work environment.

The court granted summary judgment for the defendant. The court found that defendant university's decision to create a new "Taiwan" category was not an adverse employment action, and nor were a negative performance review and some internal consideration about terminating the plaintiff's employment.

Takeaway:

The plaintiff here was a pro se, which makes sense: no employment attorney worth her salt would take this case, especially when the damages are de minimis. It is hard enough to win an employment discrimination case when the employee is actually fired. At any rate, this is another example of Asian historical dispute washing ashore of the U.S. courts.

Case of the Day: Doskocil Mfg. Co. v. Nguyen, 2017 Tex. App. LEXIS 5961 (Tex. Ct. App. 2d Dist. June 29, 2017)

Summary:

Plaintiff sued the defendant, pet-products manufacturer and her former employer. Plaintiff alleges that she got throat cancer and had surgery to remove her teeth and a part of her tongue as a result of working as a pet-toy assembler. The employment contract provided for an arbitration in case of a dispute. Plaintiff moved to set aside the agreement, claiming she did not understand English as she only spoke Vietnamese. Trial court granted the motion.

On appeal, the court vacated the trial court's order. The appellate court found that the inability to understand English is not a contract-formation defense, as long as the plaintiff was a mentally competent adult.

Takeaway:

The only surprise in this case is that the trial court initially found for the plaintiff. In an employment context, and especially in a jurisdiction like Texas, it is exceedingly difficult for recent immigrants to get the court to make allowances for the challenges they face.

Milestones: Kato v. Ishihara, 360 F.3d 106 (2d Cir. 2004)

Summary:

Plaintiff Kato is a Japanese citizen and a public employee of the Tokyo Metropolitan Government. Plaintiff complained that she suffered sexual harassment while being stationed at Tokyo government's New York office. The district court dismissed based on foreign sovereign immunity.

The Second Circuit affirmed that Tokyo government's promotion of commerce is not equivalent to "commercial activity" that serves as an exception for foreign sovereign immunity.

Takeaway:

This seems to be the correct result. A major part of modern governmental activity involves promotion of commerce; characterizing such promotion as "commercial activity" would cover quite a bit. It is a very important line of demarcation.

Case of the Day: Zhang v. Tiptop Energy Prod. U.S., 2016 U.S. Dist. LEXIS 165061 (W.D. Okla. Nov. 30, 2016)

Summary:

Plaintiff, a Chinese national who is a permanent resident of the United States, sued the defendant, a U.S. subsidiary of a Chinese state-owned energy company. Plaintiff alleged national origin discrimination, gender discrimination and retaliation based on the defendant's action taken in response to the plaintiff's pregnancy with her second child. Defendant allegedly warned the plaintiff that she was in violation of China's one child policy, and retaliated when the plaintiff brought a claim with the EEOC.

Defendant moved to dismiss the discrimination based on national origin claim, and the court denied the motion, without much analysis.

Takeaway:

This happens all the time--an Asian company sets up a subsidiary in the United States, treats its workers (who are often immigrants from Asia) arbitrarily, and face litigation based on U.S. employment law.

Milestones: Kang v. U.Lim Am., Inc., 296 F.3d 810 (9th Cir. 2002)

Summary:

Korean American sued his company for employment discrimination. Plaintiff's claim was based on the allegation that the defendant company's owner, also a Korean American, abused him on the basis that Koreans were supposed to work harder than Americans and Mexicans.

The defendant company employed less than 15 people in the United States, making it ineligible for Title VII. But the company had an affiliate in Mexico which employed more than 100. The Mexican affiliate assembled television for the U.S. company to sell in the United States. The U.S. company was Mexican affiliate's sole customer, and both companies shared the same owner. The employees of the U.S. company commuted to Tijuana to work, and the U.S. company handled the accounting of the Mexican affiliate. The U.S. company also had the authority to hire and fire employees in Mexico.

The court found that Title VII applied to the defendant based on the size of the common enterprise between the U.S. and Mexican affiliates, and found the plaintiff made a prima facie case of disparate treatment. Accordingly, the court reversed the summary judgment against the plaintiff and remanded the case.

Takeaway:

Two interesting points here. First, it is totally possible for a member of a racial minority group to file a racial discrimination suit against the supervisor of the same racial group, as long as the disparate treatment comes from some type of racial prejudice. Second, Title VII applicability may look beyond a single corporation, and use a standard lower than the traditional corporate veil standard.

Case of the Day: Wadler v. Bio-Rad Labs, Inc., 2016 U.S. Dist. LEXIS 143480 (N.D. Cal. Oct. 17, 2016)

Summary:

Plaintiff Wadler brought action against his former employer for wrongful termination, as he was allegedly a whistle blower as his former employer was committing potential violations of the Foreign Corrupt Practices Act in China.

Defendant introduced an expert witness to state that there was no FCPA violation. Plaintiff produced a rebuttal expert witness opinion. Defendant then claimed that plaintiff's expert opinion was not a rebuttal, but a new expert opinion that was improperly introduced. The court found a portion of the plaintiff's expert opinion as a proper rebuttal, but struck the rest as improper introduction of new expert opinion.

Takeaway:

An FCPA case! Admittedly, this case's connection to FCPA is somewhat oblique, but it is a small miracle whenever there is any visibility to an FCPA case. Although FCPA is a major concern for Asia-based businesses or businesses operating in Asia, actual cases are few and far between because few companies dare to fight the government in an open court. 

Case of the Day: Miller v. Kowa Am. Corp., 2016 U.S. Dist. LEXIS 112467 (C.D. Cal. Aug. 22, 2016)

Summary:

Plaintiff worked for a U.S. subsidiary of a Japanese company. While he was on a business trip to the Japanese parent company, he was sexually harassed. When he complained to his employer, the employer (allegedly) froze him out of good work assignment until he had to quit. Plaintiff then sued the Japanese parent and the U.S. subsidiary.

The court found that the two companies formed an "integrated enterprise" under Title VII, and denied the defendant companies' motion to dismiss.

Takeaway:

Very similar situation as Daikin case discussed yesterday, with one slight variation: the sexual harassment occurred at the parent corporation, which in turn opened potential liability with the subsidiary.

Milestones: Brown v. Daikin Am., Inc. 756 F.3d 219 (2d Cir. 2014)

Summary:

White U.S. citizen plaintiff sued a Japanese company and the company's U.S. subsidiary for employment discrimination under Title VII. The plaintiff was a former employee of the U.S. subsidiary. The Japanese company sought to dismiss the claim based on separate corporate existence.

The court affirmed the district court's decision that the parent and the subsidiary were a "single employer" within the meaning of Title VII. The Japanese parent rotated its employees into stints in the U.S. subsidiary, and had control over which employee to retain or terminate.

Takeaway:

For Asian companies maintaining an operation in the U.S., labor law violation is a serious concern. Be aware that the liability may extend back to the parent corporation.

Case of the Day: Roberts v. Daymon Worldwide, Inc., 2016 U.S. Dist. LEXIS 93163 (N.D. Cal. July 22, 2016)

Summary:

Plaintiff Roberts sold his beverage export company to Defendant Daymon in exchange for inter alia being hired as a senior vice president. The defendant company later fired the plaintiff, and the plaintiff sued for wrongful termination. The defendant claimed that the plaintiff was fired for cause, because the plaintiff violated the law by destroying certificates of origins, which violates the law as promulgated by Korea-U.S. Free Trade Agreement (KORUS).

The court found that the plaintiff did indeed violate KORUS, and found in favor of the defendant.

Takeaway:

Although this case does not involve a party from Asia, it involves a major Asia-related legal requirement, i.e. requirements arising from the KORUS Free Trade Agreement, which came into force in early 2012. This is a first case that I have seen that involved KORUS regulations.

Case of the Day: Ashraf-Hassan v. Embassy of France, 2016 U.S. Dist. LEXIS 60165 (D.D.C. May 6, 2016).

Summary:

Plaintiff is a Pakistani-French who worked at the French Embassy in Washington D.C. During her employment, her superiors repeatedly made derogatory comments regarding Muslims (accusing her as terrorist and suggesting she should work at the Pakistani Embassy, among other things,) and briefly terminated her employment when she became pregnant.

After having found that it had jurisdiction over the French Embassy notwithstanding the Foreign Sovereign Immunities Act (in a separate and earlier opinion,) the court held a bench trial and found that plaintiff established a discrimination claim under Title VII of the Civil Rights Act.

Takeaway:

This is slightly out of this blog's scope, since the plaintiff is a French citizen albeit Pakistani-born. But how often do you see a case brought against a foreign sovereign that ends in a victory?