Internal complaints are protected activity under FLSA, but must be in writing
July 01, 2009 by Ross Runkel at LawMemo
The 7th Circuit says the FLSA prohibits retaliation for internal complaints about FLSA violations, but only if those complaints are in writing.
Kevin Kasten sued his former employer, asserting a retaliation claim under the Fair Labor Standards Act (FLSA). The trial court granted summary judgment in favor of the employer. The 7th Circuit affirmed. Kasten v. Saint-Gobain Plastics (7th Cir 06/29/2009).
Kasten alleged that he was discharged in retaliation for making verbal complaints to his superiors that the employer’s placement of time clocks violated the FLSA.
The FLSA’s anti-retaliation provision prohibits an employer from retaliating against an employee because (among other things) the employee “has filed any complaint....” 29 USC Section 215(a)(3).
The court held that “any complaint” includes an employee’s internal (“intra-company”) complaint. The court noted that the majority of the circuits to consider this issue have arrived at the same conclusion.
However, the court also held that an employee does not “file” such a complaint in this context when he submits the complaint in purely unwritten form. The court reasoned, “the natural understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer, court, or administrative body.” The court observed that there exists a split among the circuits on this issue.
Cert granted on Section 301 suit: tortious interference and duty to arbitrate
June 30, 2009 by Ross Runkel at LawMemo
The US Supreme Court has granted certiorari in an LMRA Section 301 case that raises issues on (1) whether an employer can state a claim of tortious interference against a union that was not a signatory to a collective bargaining agreement, and (2) the scope of the duty to arbitrate. This case will be argued in the fall.
Granite Rock v. Teamsters (Certiorari granted 06/29/2009)
The employer sued a local union and an international union under Labor Management Relations Act Section 301(a) claiming that (1) the international union tortiously interfered with a collective bargaining agreement (CBA) between the employer and the local union, and (2) the local union breached the CBA by going on strike.
The employer and the local union had reached a tentative new CBA which contained a broad arbitration clause and a no-strike clause. The employer alleged that the local union had ratified the CBA and then engaged in a strike which was in part led by a high official of the international union.
(1) The 9th Circuit held that the employer failed to state a claim against the international union because the tortious interference claim did not "arise under" the CBA between the employer and the local. The court reasoned that because the international "has no rights or duties under the agreement … [the employer’s] tortious interference claim … does not meet the requirements of section 301(a)."
(2) As to the contract claim, the parties disagreed on the date of ratification. The district court held that issues of breach and damages had to be arbitrated, but that the issue of contract ratification was for the court to decide. The 9th Circuit held that the entire dispute should go to arbitration under the contract's arbitration clause, which covered "all disputes arising under this agreement." The court held that both parties consented to arbitration; the employer by suing under the contract, and the union by moving to compel arbitration.
The US Supreme Court granted certiorari to review the 9th Circuit's judgment.
Cert granted in ERISA case
June 30, 2009 by Ross Runkel at LawMemo
The US Supreme Court has granted certiorari in an ERISA case that raises issues on (1) the extent to which a district court must defer to the views of an ERISA plan administrator and (2) the appropriate scope of appellate review. This case will be argued in the fall.
Conkright v. Frommert (Certiorari granted 06/29/2009).
Xerox employees sued their ERISA retirement Plan and administrator challenging the method used by the Plan to calculate how their current benefits are offset to reflect prior distributions. The employees claimed that the Plan violated ERISA's provisions relating to summary plan description, notice, and anti-cutback rules.
There were two appeals to the 2nd Circuit. In the first appeal, the court held that the Plan had violated ERISA in several respects, and remanded for fashioning a remedy. On remand, the district court decided upon a remedy without first remanding the case to the Plan administrator.
In the second appeal, the 2nd Circuit made two key rulings:
(1) The district court was not required to defer to the Plan administrator's views on the appropriate remedy for the ERISA violations committed by the administrator and the Plan.(2) The court of appeals should review the district court's remedial decision for abuse of discretion. The US Supreme Court granted certiorari to review the 2nd Circuit's judgment.
The formal Questions Presented:
1. Whether the Second Circuit erred in holding, in conflict with decisions of this Court and other Circuits, that a district court has no obligation to defer to an ERISA plan administrator's reasonable interpretation of the terms of the plan if the plan administrator arrived at its interpretation outside the context of an administrative claim for benefits.2. Whether the Second Circuit erred in holding, in conflict with decisions of other Circuits, that a district court has "allowable discretion" to adopt any "reasonable" interpretation of the terms of an ERISA plan when the plan interpretation issue arises in the course of calculating additional benefits due under the plan as a result of an ERISA violation.
[The Supreme Court denied two other petitions for certiorari arising out of the 2nd Circuit decision. Those petitions involved the effect of general releases as waivers of ERISA claims.]
City violated Title VII by discarding racially disproportionate test results (5-4)
June 29, 2009 by Ross Runkel at LawMemo
Today the US Supreme Court decided Ricci v. DeStefano (US Supreme Court 06/29/2009)
The New Haven, Connecticut fire department administered civil service tests for applicants for positions as captain and lieutenant. The examination resulted in disproportionately higher scores for white applicants than for minority applicants. The department decided not to implement the exam results for fear that doing so would put them in violation of Title VII. Therefore, positions remained unfilled. A group of white and Hispanic applicants sued claiming a violation of Title VII and of the equal protection clause. The trial court granted summary judgment for the defendants, and the 2nd Circuit affirmed.
The US Supreme Court reversed, holding that the City’s action in discarding the tests violated Title VII.
Official Syllabus:
New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed.Held: The City’s action in discarding the tests violated Title VII.
(a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impace, the employer may defend by demonstrating that its policy or practice is "job related for the position in question and consistent with business necessity." Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C).
(b) Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a "strong basis in evidence" that the remedial actions were necessary. Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267,
277. In announcing the strong-basis-in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. It reasoned that "[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees." Ibid. The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions. Applying the strong-basis-in-evidence standard to Title VII gives effect to both provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. It also allows the disparate-impact prohibition to work in a manner that is consistent with other Title VII provisions, including the prohibition on adjusting employment-related test scores based on race, see §2000e–2(l), and the section that expressly protects bona fide promotional exams, see §2000e–2(h). Thus, the Court adopts the strong-basis-in evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions.(c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard.
(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. §§2000e–2(k)(1)(A), (C). Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect.
(ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity.
(iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results, §2000e–2(l). Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record.
(iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.530 F. 3d 87, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.
Employer required to disgorge employee's emails to her attorney
June 28, 2009 by Ross Runkel at LawMemo
Marina Stengart sued her former employer for violation of the New Jersey Law Against Discrimination (LAD). The trial court denied Stengart's motion for temporary restraints with respect to attorney-client privilege. The New Jersey Appellate Division reversed. Stengart v. Loving Care Agency (New Jersey App Div 06/26/2009)
The issue was whether the employer's workplace regulations converted an employee's emails with her attorney -- sent through the employee's personal, password-protected, web-based email account, but via her employer's computer -- into the employer's property.
The court rejected the employer's claimed right to the employee's emails to her attorney, finding the policies supporting the attorney-client privilege outweighed the employer's interest in enforcement of its workplace rule.
As the court put it, "we reject the employer's claimed right to rummage through and retain the employee's emails to her attorney."
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
