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Avoid the Hustle

Discuss what Carter must show to prove his claim
  • Case Analysis # 4
    Carter was hired as a disc jockey by Warren, when he was aged 54. Two years later, during economic hard times for Warren's business, Carter is laid off by Warren. Carter brings a claim of age discrimination against Warren.

    Discuss what Carter must show to prove his claim.

    On the basis of these facts alone what are all of Warren's defenses to Carter's claim? Which is Warren's best defense? Explain.
     How to respond to the Case Analysis Problems
    Response to the Case Analysis Problems involves more than simply “getting the right answer.”  The process requires that you demonstrate to me the proper though process in analyzing the case. 
    Legal Analysis typically follows a four step process - IRAC
    1.    Issue
    2.    Rule
    3.    Application
    4.    Conclusion
    You will be provided with a factual situation.  It is “the story” about what happened.  Your job is to analyze the facts from a legal perspective. 

    Step One:  Issue
    ·         You need to first identify the legal issue or legal question involved.  Often you will be able to determine the correct area by the call of the question in the fact situation or simply what chapter we are covering.  However, you may be required to be look more deeply at the facts.  For instance, if the facts involve a 45-year old disabled veteran, you may want to consider whether any other facts suggest discrimination based on a protected classification.
    ·         The issue is often stated in the form of a question.
    Step Two: Rule
    ·         For this step you must correctly identify and state the correct Rule of law.  In other words you state the law.  Once you identify the correct legal principle you need to state it clearly and succinctly.  Often you are required to state the elements of a cause of action.  This requires that you list the elements necessary to prove your case.
    Step Three: Application
    ·         You apply the facts to the law.  You will look at each element in the cause of action and apply the facts that you have to the specific element.
    ·         Next, you need to consider any counter arguments to the issue. 
    Step Four: Conclusion
    ·         Come to some conclusion about your analysis.  It is important that you reach a conclusion even though you might believe there are not enough facts. 
    ·         You conclusion should be based on your legal analysis and not what you think is “fair” or a “best practice.”  Those concerns are important but recognizing the distinction between “best practice” and the law is critical.
    ·         The conclusion often answers the question presented in the issue.

    Example of the Process
    Factual Situation
    Wilhemina works as an auditor for the Pleasant Valley City Tax Department. She is asked to review the city's policies on collecting delinquent taxes. Willie makes recommendations to improve the timeliness of collecting overdue taxes by city employees and for the use of debt collectors. Her recommendations for the use of city employees are implemented but her suggestions regarding debt collectors are rejected. Willie writes a letter to the editor which is published in the Pleasant Valley Times newspaper. In the letter she criticizes the Tax Department's failure to follow all her suggestions. Willie is demoted to accounting assistant and wants to file suit alleging a violation of her First Amendment right to free speech and Whistle-blowing.  How would you advise her?
    Two issues are presented in this situation.
    Issue # 1
    Was Wilhemina’s demotion a violation of her First Amendment Right to free speech?
    Rule
    Under certain circumstances an employer may not take an adverse employment action against a worker for exercising constitutional rights. However, this applies only where the employer is a public entity since an employee has constitutional protection against state action rather than action by private employers.
    However, the Supreme Court held in Garcetti v, Ceballos that  “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

    Application
    The statements made by Wilhemina in her letter to the editor were directly related to her official duties.
    Conclusion
    Therefore, Wilhemina’s demotion did not violate her First Amendment Right to free speech.

    Issue # 2
    Was Wilhemina’s demotion protected by the public policy/whistle-blowing exception to employment at-will.
    Rule
    Generally, an employee is hired as an employee-at-will and can be terminated or demoted for any reason or no reason at all.  However, there are several exceptions to the employment-at-will doctrine including the public policy exception.  “For a terminated employee to sustain a cause of action against her or his employer on this basis, the ex-employee must show that the employer’s actions were motivated by bad faith, malice, or retaliation.” Employment Law for Business, p. 26.
    Whistle-blowing is when an employee reports an employer’s wrong-doing and an adverse action is taken against him/her.  Employment Law for Business, p. 30.  Whistle-blowing is an example of the public policy exception.
    In order to maintain a cause of action for whistle-blowing an employee needs to either be 1) protected by a specific statue which offers protection to whistle-blowers or 2) support the claim on a statement of public policy rooted in a statutory or constitutional provision. Employment Law for Business, p. 30
    Application
    1.    The existence of a specific statute protecting her actions would depend on the jurisdiction where she lives.  At least 39 states provide some protection for whistle-blowers. If she lives in a state with a protection statute, the specific wording of the statute would control. She is not protected by the Whistleblowers Protection Act because she is not a federal employee.  In addition, many statutes require that the report be made to an official and Wilhemenia reported to the newspaper.
    2.    Without a specific statute, “courts require that the statement of public policy be rooted in a statutory or constitutional provision.” Employment Law for Business, p. 31. The actions taken by Wilhemenia do not rise to the level sufficient to offer protections as a constitutional violation and no specific statute is evident. No specific policy is impacted.  Wilhemenia’s employers have an interest in making the decisions to follow a specific policy of whether to hire debt collectors and her statements in the newspaper restrict their ability to make those decisions.
    Conclusion
    If the jurisdiction does not have a specific whistle-blowing statute Wilhemenia’s demotion is not a violation of public-policy / whistle-blowing exception to the at-will doctrine. 





Discuss what Carter must show to prove his claim

  • Case Analysis # 4
    Carter was hired as a disc jockey by Warren, when he was aged 54. Two years later, during economic hard times for Warren's business, Carter is laid off by Warren. Carter brings a claim of age discrimination against Warren.
    Discuss what Carter must show to prove his claim.
    On the basis of these facts alone what are all of Warren's defenses to Carter's claim? Which is Warren's best defense? Explain.
     How to respond to the Case Analysis Problems

    Response to the Case Analysis Problems involves more than simply “getting the right answer.”  The process requires that you demonstrate to me the proper though process in analyzing the case. 
    Legal Analysis typically follows a four step process – IRAC
    1.    Issue
    2.    Rule
    3.    Application
    4.    Conclusion
    You will be provided with a factual situation.  It is “the story” about what happened.  Your job is to analyze the facts from a legal perspective. 
    Step One:  Issue
    ·         You need to first identify the legal issue or legal question involved.  Often you will be able to determine the correct area by the call of the question in the fact situation or simply what chapter we are covering.  However, you may be required to be look more deeply at the facts.  For instance, if the facts involve a 45-year old disabled veteran, you may want to consider whether any other facts suggest discrimination based on a protected classification.
    ·         The issue is often stated in the form of a question.
    Step Two: Rule
    ·         For this step you must correctly identify and state the correct Rule of law.  In other words you state the law.  Once you identify the correct legal principle you need to state it clearly and succinctly.  Often you are required to state the elements of a cause of action.  This requires that you list the elements necessary to prove your case.
    Step Three: Application
    ·         You apply the facts to the law.  You will look at each element in the cause of action and apply the facts that you have to the specific element.
    ·         Next, you need to consider any counter arguments to the issue. 
    Step Four: Conclusion
    ·         Come to some conclusion about your analysis.  It is important that you reach a conclusion even though you might believe there are not enough facts. 
    ·         You conclusion should be based on your legal analysis and not what you think is “fair” or a “best practice.”  Those concerns are important but recognizing the distinction between “best practice” and the law is critical.
    ·         The conclusion often answers the question presented in the issue.
    Example of the Process
    Factual Situation
    Wilhemina works as an auditor for the Pleasant Valley City Tax Department. She is asked to review the city's policies on collecting delinquent taxes. Willie makes recommendations to improve the timeliness of collecting overdue taxes by city employees and for the use of debt collectors. Her recommendations for the use of city employees are implemented but her suggestions regarding debt collectors are rejected. Willie writes a letter to the editor which is published in the Pleasant Valley Times newspaper. In the letter she criticizes the Tax Department's failure to follow all her suggestions. Willie is demoted to accounting assistant and wants to file suit alleging a violation of her First Amendment right to free speech and Whistle-blowing.  How would you advise her?
    Two issues are presented in this situation.
    Issue # 1
    Was Wilhemina’s demotion a violation of her First Amendment Right to free speech?
    Rule
    Under certain circumstances an employer may not take an adverse employment action against a worker for exercising constitutional rights. However, this applies only where the employer is a public entity since an employee has constitutional protection against state action rather than action by private employers.
    However, the Supreme Court held in Garcetti v, Ceballos that  “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
    Application
    The statements made by Wilhemina in her letter to the editor were directly related to her official duties.
    Conclusion
    Therefore, Wilhemina’s demotion did not violate her First Amendment Right to free speech.
    Issue # 2
    Was Wilhemina’s demotion protected by the public policy/whistle-blowing exception to employment at-will.
    Rule
    Generally, an employee is hired as an employee-at-will and can be terminated or demoted for any reason or no reason at all.  However, there are several exceptions to the employment-at-will doctrine including the public policy exception.  “For a terminated employee to sustain a cause of action against her or his employer on this basis, the ex-employee must show that the employer’s actions were motivated by bad faith, malice, or retaliation.” Employment Law for Business, p. 26.
    Whistle-blowing is when an employee reports an employer’s wrong-doing and an adverse action is taken against him/her.  Employment Law for Business, p. 30.  Whistle-blowing is an example of the public policy exception.
    In order to maintain a cause of action for whistle-blowing an employee needs to either be 1) protected by a specific statue which offers protection to whistle-blowers or 2) support the claim on a statement of public policy rooted in a statutory or constitutional provision. Employment Law for Business, p. 30
    Application
    1.    The existence of a specific statute protecting her actions would depend on the jurisdiction where she lives.  At least 39 states provide some protection for whistle-blowers. If she lives in a state with a protection statute, the specific wording of the statute would control. She is not protected by the Whistleblowers Protection Act because she is not a federal employee.  In addition, many statutes require that the report be made to an official and Wilhemenia reported to the newspaper.
    2.    Without a specific statute, “courts require that the statement of public policy be rooted in a statutory or constitutional provision.” Employment Law for Business, p. 31. The actions taken by Wilhemenia do not rise to the level sufficient to offer protections as a constitutional violation and no specific statute is evident. No specific policy is impacted.  Wilhemenia’s employers have an interest in making the decisions to follow a specific policy of whether to hire debt collectors and her statements in the newspaper restrict their ability to make those decisions.
    Conclusion
    If the jurisdiction does not have a specific whistle-blowing statute Wilhemenia’s demotion is not a violation of public-policy / whistle-blowing exception to the at-will doctrine.