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Garcetti v. Ceballos - Employee speech loses constitutional protection (5-4)
May 30, 2006 by Ross Runkel at LawMemo
No surprise as to the outcome. Dramatic statement as to the constitutional rule.
In Garcetti v. Ceballos (US Supreme Court 05/30/2006) the Court said:
We hold 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.
Ceballos, a deputy DA, sued his employer claiming retaliation in violation of the 1st amendment.
Ceballos wrote a memorandum to his supervisor in which he claimed that a deputy sheriff had lied in an application for a search warrant. Ceballos claimed that he was demoted in retaliation for this.
The US Supreme Court held that Ceballos was not speaking "as a citizen," and his statement has no constitutional protection. None at all.
Because Ceballos' speech had no constitutional protection, there was no need to apply the balancing test used in Pickering v. Board of Educ., 391 US 563 (1968) and Connick v. Myers, 461 US 138 (1983).
| Employment Law Memo notified its readers about this case shortly after it was decided on 05/30/2006. |
Four Justices wrote three DISSENTING opinions arguing that Ceballos' speech should not be categorically excluded from 1st amendment protection, and that a balancing test should be applied.
Other comments on the Garcetti v. Ceballos case:
- Workplace Prof Blog: Garcetti v. Ceballos Decided; Public Employee Free Speech Takes a Hit
- SCOTUSblog: Today's Opinion and Order List
- New York Times: Justices, 5-4, Limit Whistleblower Suits
Class action removal - "less" means "more"
May 28, 2006 by Ross Runkel at LawMemo
An employer removes a state court class action case to federal court under the Class Action Fairness Act (CAFA), and that court denies a motion to remand to state court.
CAFA says the plaintiffs can appeal by filing an application "not less than" 7 days after entry of the order.
The 9th Circuit says "not less than" means "not more than" 7 days.
Amalgamated Transit Union v. Laidlaw Transit (9th Cir 01/26/2006).
The 9th Circuit has now denied an en banc rehearing in that case. Six judges filed a dissent arguing that a court has no business rewriting the statute merely because the way it was actually written is "illogical." Amalgamated Transit Union v. Laidlaw Transit (9th Cir 05/22/2006).
| Employment Law Memo notified its readers about this case on 05/26/2006. |
Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 n.2 (10th Cir. 2005), reached the same result, opining that there was a typographical error.
Ministerial exception limited in Petruska v. Gannon University
May 24, 2006 by Ross Runkel at LawMemo
The 3rd Circuit has staked out a bold position on the application of Title VII to ministers of the church, refusing to apply a "ministerial exception" when church discrimination has no religious foundation.
Lynette Petruska was a chaplain at a Catholic university. She sued under Title VII claiming she was demoted because of her sex and in retaliation for her opposition to sexual harassment.
Most courts would have dismissed the suit out of hand, citing the "ministerial exception."
The 3rd Circuit is allowing the case to go forward. Petruska v. Gannon University (3rd Cir 05/24/2006 (2-1), majority opinion by Edward R. Becker, deceased.
Here's the main idea, quoting the court:
We adopt a carefully tailored version of the ministerial exception. Where otherwise illegal discrimination is based on religious belief, religious doctrine, or the internal regulations of a church, the First Amendment exempts religious institutions from Title VII. In such cases, restricting a church’s freedom to select its ministers would violate the Free Exercise Clause by inhibiting the church’s ability to express its beliefs and put them into practice. Furthermore, questions about religious matters would pervade litigation, entangling courts in ecclesiastical matters and violating the Establishment Clause.
But where a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits. Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects. Furthermore, in adjudicating suits that do not involve religious rationales for employment action, courts need not consider questions of religious belief, religious doctrine, or internal church regulation, a process that would violate the Establishment Clause by entangling courts in religious affairs.
Hooray for the 3rd Circuit, adopting exactly the position I have previously advocated. See Ministerial exception: putting churches above the law.
Reasonable Accommodations For Attorneys With Disabilities
May 23, 2006 by Ross Runkel at LawMemo
The EEOC has published a lengthy and detailed fact sheet [Reasonable Accommodations For Attorneys With Disabilities] addressing the application of the reasonable accommodation obligation under the Americans with Disabilities Act (ADA) to attorneys with disabilities and their employers.
This fact sheet is full of examples and legal citations, and should be enormously useful.
The bulk of the principles discussed in this fact sheet can be applied equally to any workplace - not just lawyers.
Whitman v. Department of Transportation - more briefs
May 22, 2006 by Ross Runkel at LawMemo
Waiting for a decision in Whitman v. Department of Transportation? Keep waiting. The US Supreme Court heard arguments on December 5, then asked the parties to file supplemental briefs "addressing the applicability of Darby v. Cisneros, 509 U.S. 137 (1993)."
Here are the briefs, filed May 15, 2006:
Whitman's federal court suit claimed that the Federal Aviation Administration (his employer) tested him for substance abuse disproportionately, and thus violated the first amendment and the federal statute on mandatory drug testing. The 9th Circuit held that federal courts had no subject matter jurisdiction, and the US Supreme Court is reviewing that decision.
The 9th Circuit reasoned that the FAA Management System, including certain provisions of the Civil Service Reform Act (CSRA), governs FAA employees' employment rights and generally does not allow federal court suits. The CSRA requires collective bargaining agreements to include procedures for resolving "grievances," and defines "grievance" broadly to include Whitman's claims. Before 1994 CSRA provided that the collectively bargained procedures "shall be the exclusive procedures for resolving grievances."
The 1994 amendment provided that the collectively bargained procedures "shall be the exclusive administrative procedures for resolving grievances." [emphasis added.]
Although the Federal and 11th Circuits have held that the 1994 amendment established an employee's right to seek a judicial remedy, the 9th Circuit said those cases are wrong because the 1994 amendment "does not constitute an express grant of federal court jurisdiction."
EEOC settles cases
May 22, 2006 by Ross Runkel at LawMemo
EEOC has announced the following settlements:
- $750,000 to settle a claim that a high-level manager of NEA-Alaska (an affiliate of National Education Association) subjected three female employees to abusive treatment on a daily basis. National Education Association and Alaska Affiliate to Pay $750,000 for Harassment of Women
- $1,000,000 plus to settle a claim against the Commonwealth of Massachusetts alleging age discrimination in administering accidental disability retirements under the Massachusetts public retirement systen. EEOC Announces Age Bias Settlement with State of Massachusetts Will Net Millions for Victims
- $600,000 to settle a claim against Nine West and Jones Apparel Group alleging sexual harassment, national origin harassment and retaliation. Nine West, Jones Apparel Group to Pay $600,000 to Settle National Origin and Sex Bias Suit
Employment law resources
May 21, 2006 by Ross Runkel at LawMemo
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ERISA - Sereboff, sanity, and the Supreme Court
May 21, 2006 by Ross Runkel at LawMemo
In a 9-0 opinion, the US Supreme Court breathed a bit of sanity into ERISA. Sereboff v. Mid-Atlantic Medical Services (05/15/2006). The case also says a lot about Chief Justice Roberts.
The Sereboff fact were simple:
- The Sereboffs were insured under Mid-Atlantic's ERISA-regulated medical plan. The Sereboffs were involved in an auto accident, and the plan paid them about $75,000 to cover medical expenses. The Sereboffs recovered $750,000 from the third party that caused the accident.
- The medical plan provided that in such circumstances the insured (the Sereboffs) had to pay back the amount the plan had paid on account of the injuries. Mid-Atlantic sued to recover the money.
The legal issue was whether the relief requested Mid-Atlantic was "equitable" relief under Section 502(a)(3)(B) of ERISA's civil action provision.
The Court side-stepped a lot of arcane law dealing with distinctions between "law" and "equity." The Court viewed the case as involving an "equitable lien" based on an agreement, and that lien was on specifically identifiable funds that were under the Sereboffs' control. Therefore, the relief sought was "equitable," and the Sereboffs have to pay back the $75,000.
This opinion is a tribute to Chief Justice Roberts, who wrote it. It was unanimous. The reasoning was simple. The opinion was short - 11 pages, two footnotes.
Two good extended discussions:
Workplace Prof Blog - Sereboff and the Future of ERISA Remedies
SCOTUSblog - Monday’s Decision in Sereboff v. Mid-Atlantic Medical Services
Third blog birthday for Michael Fitzgibbon
May 18, 2006 by Ross Runkel at LawMemo
Three years ago this month Michael Fitzgibbon began his blog: Thoughts from a Management Lawyer, which brings a delightful stream of fascinating employment law information with a Canadian twist.
Michael is a steady blogger who provides thoughtful commentary about Canadian labour and employment law decisions and issues.
I appreciate Michael's focus on items that are both serious and interesting.
Micahel is a partner at Borden Ladner Gervais, where he practices in Toronto, one of my favorite cities.
Whitman v. Dept of Transportation - Supreme Court requests more briefs
May 02, 2006 by Ross Runkel at LawMemo
Whitman v. Department of Transportation (US Supreme Court Docket No. 04-1131) raises the issue of whether the Civil Service Reform Act confers federal court jurisdiction. The case was argued on December 5, 2005, and today the Supreme Court asked counsel to file more briefs.
Here's the Court's order:
Counsel are directed to file supplemental briefs addressing the applicability of Darby v. Cisneros, 509 U.S. 137 (1993), to this case. The briefs, not to exceed 15 pages, are to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, May 15, 2006.
About the case:
Whitman sued in federal court claiming his employer, the Federal Aviation Administration, disproportionately tested him for substance abuse in violation of the first amendment and the federal statute on mandatory drug testing. The trial court held it had no subject matter jurisdiction; the 9th Circuit affirmed; the US Supreme Court granted certiorari to review the 9th Circuit decision.
Decision below: Whitman v. Department of Transportation (9th Cir 08/30/2004).
The 9th Circuit reasoned that the FAA Management System, including certain provisions of the Civil Service Reform Act (CSRA), governs FAA employees' employment rights and generally does not allow federal court suits. The CSRA requires collective bargaining agreements to include procedures for resolving "grievances," and defines "grievance" broadly to include Whitman's claims.
Before 1994 CSRA provided that the collectively bargained procedures "shall be the exclusive procedures for resolving grievances." The 1994 amendment provided that the collectively bargained procedures "shall be the exclusive administrative procedures for resolving grievances."
Although the Federal and 11th Circuits have held that the 1994 amendment established an employee's right to seek a judicial remedy, the 9th Circuit said those cases are wrong because the 1994 amendment "does not constitute an express grant of federal court jurisdiction."
Religion at work - No prayers, no Bible
May 02, 2006 by Ross Runkel at LawMemo
Daniel Berry was an evangelical fundamentalist Christian whose job was to assist unemployed clients transition out of welfare, and this involved frequent client interviews in his cubicle.
Berry's public employer denied Berry's wishes to be allowed to (1) share his religious views with clients in his cubicle, (2) use a conference room for voluntary prayer meetings, and (3) display religious objects (a Bible and a religious sign) in his cubicle.
The 9th Circuit said this did not violate Berry's rights under the religion clause of the 1st amendment or his rights under Title VII. Berry v. Dept of Social Services (9th Cir 05/01/2006).
| Employment Law Memo notified its readers about this case on 05/02/2006. |
1st amendment: The court used the Pickering v. Board of Education, 391 US 563 (1968) balancing test. The employer's interest in avoiding violations of the establishment clause and in having the conference room be a non-public forum outweighed Berry's free exercise of his religion at work.
Title VII: The employer was not required to accommodate Berry's religious practices because doing so would create a danger of violating the establishment clause, and thus be an undue hardship.
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