Studying Judge Seibel’s opinion some more, I am focusing on how many items within the 12(b)(6) that was granted are relying on Julie London Law, and not what is actually in either the 1947 Labor Standards Law (LSL), or the 2008 Labor Contract Law (LCL). The other day, I was focusing on the Page 9 problem. Now that the opinion is up on Google Scholar, of course, it’s hard to find Page 9. The quote is:
Plaintiff did not receive a new contract to confirm this switch to permanent employment status, and the documentary evidence at best demonstrates that one of Plaintiff’s superiors merely stated that he felt “comfortable” removing the end date from Plaintiff’s employment contract only because “it ha[d] no real meaning” anyway, given that Cognos could still terminate him at any time with thirty days’ notice. (Id. Ex. D.) This exchange demonstrates, contrary to Plaintiff’s argument, that while at Cognos even after March 2008, Cognos reserved the right to dismiss him and did not accord him permanent employee status. Continuation of the non-permanent status at IBM is thus not an adverse action.
“Adverse action” is very important, because a plaintiff needs that for a Title VII. If you do not have an adverse action, you are missing an element. What I was able to show the judge on Monday, enough to get reconsideration, was that all employment relationships–employment contracts–in Japan have the thirty days’ notice. What is critical is whether there is the LCL Article 17 “fixed term”, the end date. Whether your employer believes that the end date “has no real meaning” is irrelevant. In my case, this wording was clearly thrown in as “backsies”, because in March 2008, Cognos was receiving a lot of information about Japanese labor law from my predecessor’s labor union and the company’s own law firm. ["No real meaning"] was put in there as if I would not know the meaning or the significance of LSL or LCL.
So that is one thing.
Here is another item:
Judge Seibel says:
If Plaintiff were similarly situated to Cognos’s other employees—i.e., if they had contracts allowing their termination on thirty days’ notice—and they were all nevertheless given permanent employee status at IBM Japan, Plaintiff might have a plausible argument that his not being accorded that status was based on his national origin. But absent facts supporting an allegation that he was similarly situated to the non-American employees, no such inference arises.
However, the similar situation to Cognos’s other employees arises out of Japanese law, not separate facts. Everyone had the right to thirty days’ notice because it’s in Article 20.
It doesn’t matter if this language appears in a contract or not. It’s the law. I was similarly situated because I was working in Japan. My contract might have spelled out the notice, and others may or may not have had it in black-and-white, but it is the law. That, of course, and the the “socially justifiable grounds”, which used to be codified at LSL Article 18-2, and is today at LCL Article 16.
So in April 2008, I had exactly the same as the fellow Cognos K.K. employees, overwhelmingly Japanese, but I didn’t get the same treatment from IBM Japan.
Pointing out this law, which I am sure I referred to more than once in filings, is likely why the judge has set a May 25th date for IBM to explain why they have provided her with unsourced “law” that differs from what I am showing you above.
(Note: as I always say, do your own homework! This is not legal advice; it’s just discussing a case in a casual format.)