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Big Case #6 - Petruska v. Gannon University
August 31, 2006 by Ross Runkel at LawMemo
#6 in the Big Cases Series for 2006: Petruska v. Gannon University, 448 F.3d 615 [advance sheet; withdrawn from bound volume] (3rd Cir 05/24/2006) (2-1), vacated and referred for rehearing (06/20/2006).
Facts: A chaplain sued her Catholic university employer under Title VII claiming she was demoted because of her sex and in retaliation for her opposition to sexual harassment. She also had state law claims for breach of contract, fraudulent misrepresentation, negligent supervision and retention, and civil conspiracy.
Held: The district court cannot dismiss these claims on a 12(b)(1) or 12(b)(6) motion.
Key quote:
"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."
Related cases:
- The traditional and majority rule: The "ministerial exception" "deprives a federal court of jurisdiction to hear a Title VII employment discrimination suit brought against a church by a member of its clergy, even when the church's challenged actions are not based on religious doctrine." Combs v. Central Texas Annual Conference, 173 F.3d 350 (5th Cir 1999), following McClure v. Salvation Army, 460 F.2d 553 (5th Cir 1972).
- Tomic v. Catholic Diocese, 442 F.3d 1036 (7th Cir 04/04/2006) followed the traditional rule.
- Hankins v. Lyght, 438 F.3d 163 (2nd Cir 02/16/2006) (2-1) avoided deciding the ministerial exception issue, and held that the Religious Freedom Restoration Act amended the ADEA. Remanded for reconsideration in light of the Religious Freedom Restoration Act.
- Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir 2004), rehearing denied with opinions, 397 F.3d 790 (2005), held that a church minister can state a claim for sexual harassment.
- Dolquist v. Heartland Presbytery, 342 F.Supp.2d 996 (D Kans 2004) held that a church pastor can state a claim for sexual harassment and retaliation.
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Gender-based salary discrimination claims, and burdens of proof
August 30, 2006 by Ross Runkel at LawMemo
Mickelson v. New York Life Insurance (10th Cir 08/28/2006) gives us a lesson on gender-based salary discrimination claims under Title VII and the Equal Pay Act (EPA).
The lesson: Different burdens of proof.
An employee claiming gender-based salary discrimination has essentially two options.
- First, the employee can proceed under a theory of intentional gender discrimination pursuant to Title VII.
- Alternatively, the employee can proceed under a wage discrimination theory pursuant to the EPA.
There are significant differences between an employee's burden of proof, depending upon which avenue she takes.
Under the Title VII intentional discrimination theory, the employee always bears the burden of proving intent. The EPA, however, has been described as imposing a form of strict liability on employers who pay males more than females for performing the same work. Thus, under the EPA, an employee need not prove discriminatory intent.
Additionally, under Title VII the McDonnell Douglas burden shifting framework is generally applied. EPA cases do not employ McDonnell Douglas, but rather proceed in two steps. First, the employee must establish a prima facie case by demonstrating that employees of the opposite sex were paid differently for performing the same work. Second, if that burden is met, the burden then shifts to the employer to prove that the wage disparity was justified by one of four permissible reasons (set forth 29 USC Section 206(d)(1)). Unlike the second step of the McDonnell Douglas framework (where the employer proffers a "legitimate non-discriminatory reason"), though, the employer's burden at this step in EPA cases is one of persuasion.
The 3rd Circuit has taken the position that, in order to carry its burden under Section 206(d)(1), an employer must "submit evidence from which a reasonable factfinder could conclude not merely that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity." The 10th Circuit adopted that approach, concluding that "where, as here, employers seek summary judgment as to [an] Equal Pay Act claim, they must produce sufficient evidence such that no rational jury could conclude but that the proffered reasons actually motivated the wage disparity of which the plaintiff complains."
The court noted that "[b]ecause of the varying burdens of proof, it is conceivable that in some cases an employer would be entitled to summary judgment on the Title VII claim, but not on the EPA claim." The court concluded ultimately that this was not such a case, however, because (1) Mickelson presented sufficient evidence of pretext in support of her Title VII claim; and (2) the employer failed to carry its burden under Section 206(d)(1).
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Big Case # 5 - Ash v. Tyson Foods
August 30, 2006 by Ross Runkel at LawMemo
#5 in the Big Cases Series for 2006: Ash v. Tyson Foods , 126 S.Ct. 1195 (US Supreme Court 02/21/2006)
Facts: Two African-American superintendents were denied promotions. There was evidence that the plant manager (the decisionmaker) referred to each of the employees as "boy." The 11th Circuit held that use of "boy" alone (without adding "white" or "black") was not evidence of racial animus. The employees submitted evidence that their qualifications were better than the two whites that were promoted, but the 11th Circuit rejected this as evidence of pretext.
Held (1): "Boy," standing alone, may or may not evidence racial animus.
Key quote: "Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage. Insofar as the Court of Appeals held that modifiers or qualifications are necessary in all instances to render the disputed term probative of bias, the court's decision is erroneous."
Later cases:
- Ash v. Tyson Foods, (11th Cir 08/02/2006) (unpublished) (adhering to original decision)
- Canady v. Wal-Mart Stores, 440 F.3d 1031 (8th Cir 03/17/2006) (2-1) (evidence did not support finding of harassment; "slave driver" was used to describe manger's reputation; employee did not complain about manager saying "what's up my nigga" and manager apologized)
Held (2): The following 11th Circuit formula is error: "Pretext can be established through comparing qualifications only when 'the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.'"
Key quote: "The visual image of words jumping off the page to slap you (presumably a court) in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications."
Later cases:
- Ash v. Tyson Foods, (11th Cir 08/02/2006) (unpublished) (adhering to original decision)
- Brooks v. County Commission, 446 F.3d 1160 (11th Cir 04/18/2006) ("disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question," following Cooper v. Southern Co., 390 F.3d 695 (11th Cir 2004))
- Mlynczak v. Bodman, 442 F.3d 1050 (7th Cir 04/04/2006) ("essentially the same as" the Cooper standard)
- Bender v. Hecht Dept Stores, 455 F.3d 612 (6th Cir 08/01/2006) (qualifications evidence must be combined with other evidence of discrimination)
5th Circuit case from the past: Price v. Federal Express, 283 F.3d 715 (5th Cir 2002) (qualifications must "leap from the record and cry out to all who would listen that [the plaintiff] was vastly - or even clearly - more qualified for the subject job.")
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Anticipatory withdrawal of recognition didn't work
August 28, 2006 by Ross Runkel at LawMemo
Q: At what point in time do you look to see whether an incumbent union has lost its majority support, so the employer can withdraw recognition?
A: When the current collective bargaining agreement expires.
Levitz Furniture, 333 NLRB 717 (2001) allows an employer to withdraw recognition of a union only if it can prove that the union had, in fact, lost majority support.
But what if the tide keeps shifting?
In Parkwood Development Center, NLRB (08/22/2006), the employer-union contract was set to expire on March 8. During the previous December the employer received a petition from a majority of employees saying they no longer wished to be represented by the union.
So, in December, the employer told the union that it would honor the existing contract but would not negotiate for a successor agreement.
Later, the union gathered signatures on a petition and also gathered authorization cards that indicated that the union had majority support. The union gave these to the employer on March 7 - the day before the contract expired.
The employer followed through on its statement that it would not negotiate.
The NLRB said the employer committed an unfair labor practice. The key date was March 8, when the contract expired. On that date, all the employer had was conflicting evidence.
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Towboat pilots - an easy "Kentucky River" case
August 24, 2006 by Ross Runkel at LawMemo
Towboat pilots are "supervisors," not "employees" under National Labor Relations Act Section 2(11), says the NLRB. Not the biggest of the "Kentucky River" cases, yet interesting.
American River Transportation Co (NLRB 08/18/2006), decided by a three-Member panel. Not controversial enough for the full Board to address.
The Board held that towboat pilots had the authority, in the interest of the employer, to both responsibly direct the towboat crew and to assign work.
The majority opinion (Chairman Battista and Member Schaumber) said:
"Here, the Respondent’s pilots have the authority to make assignments and reassignments of the crew and order the crew to perform particular tasks such as standing lookout, repairing lights, cleaning windows, and fixing depth finders. During the course of navigation, the pilots use independent judgment to determine that the assignment of certain tasks to the crew is necessary for the safe passage of the boat and tow. The pilots do not check with others before ordering that action be taken. That the pilots’ instructions and orders often are routed through the mate does not diminish the pilots’ responsible direction inasmuch as the instructions and orders remain those of the pilots’. The pilots are in charge of the after watch and serve as the sole wheelhouse official responsible for the safety of the vessel, crew, and cargo. They have authority over the crew during emergencies. Finally, the pilots also possess the following secondary indicia of supervisory authority; higher pay, better benefits, and better sleeping quarters."
Member Walsh concurred in the result but not the rationale. He did "not agree that the majority's analysis ... is necessarily the proper way to harmonize the result in this case with the concerns expressed by the Supreme Court in NLRB v. Kentucky River Community Care, 532 US 706 (2001)." He concurred based on previous NLRB cases on pilots, but does "not necessarily agree" with those cases.
More "Kentucky River" cases to come soon:
- Oakwood Healthcare, Inc., Case 7-RC-22141
- Beverly Enterprises - Minnesota, Inc., Cases 18-RC-16415 and 18-RC-16416
- Croft Metals, Inc., Case 15-RC-8393
Oakwood and Beverly Enterprises deal with "charge nurses" in the health care industry.
Croft Metals deals with "leadmen" and "load supervisors" in a manufacturing setting.
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No tax on emotional distress and reputation loss damages
August 22, 2006 by Ross Runkel at LawMemo
A blockbuster case. It's unconstitutional for the IRS to tax an employee's award for "emotional distress" or "mental anguish" or "injury to professional reputation."
Murphy v. Internal Revenue Service (DC Cir 08/22/2006).
Marrita Murphy recovered damages from her employer on her claim that the employer violated various whistleblower statutes and retaliated against her. The damages were awarded in a Department of Labor administrative action.
The administrative law judge specified that part of the award was for "emotional distress or mental anguish," and part was for "injury to professional reputation."
Murphy paid taxes on the award, and then sued IRS seeking a tax refund. The trial court granted summary judgment for the government; the DC Circuit reversed.
Murphy had two theories: (1) the award was excluded from taxation by virtue of the language of the Internal Revenue Code, and (2) taxing the award would violate the 16th amendment which gives Congress the power to tax "income."
- The DC Circuit agreed with the IRS that the Tax Code did not exclude the award from income.
The compensation was not "received on account of personal physical injuries," [Section 104(a)(2)] and therefore Section 104 does not permit Murphy to exclude her award from income.
- The DC Circuit held that Section 104, as applied to Murphy, is unconstitutional.
This is for two reasons:
- Under the 16th amendment, Congress has the power to tax only "gain[s]" or "accessions to wealth." Commissioner v. Glenshaw Glass, 348 US 426 (1955). "[T]he damages were awarded to make Murphy emotionally and reputationally 'whole' and not to compensate her for lost wages or taxable earnings of any kind. The emotional well-being and good reputation she enjoyed before they were diminished by her former employer were not taxable as income. Under this analysis, therefore, the compensation she received in lieu of what she lost cannot be considered income ...."
- The "original understanding" of the framers of the 16th amendment was that they "would not have understood compensation for a personal injury - including a nonphysical injury - to be income."
We're going to hear a lot about this case. For now, check what TaxProf Blog says: D.C. Circuit Holds § 104(a)(2) Unconstitutional Under 16th Amendment; Not All Receipts Constitute "Income" Under Glenshaw Glass.
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$1.12 million settlement in early retirement case
August 22, 2006 by Ross Runkel at LawMemo
The charge: That a school district reduced the amount of employees' early retirement incentive payments for each year as the employees grew older.
The EEOC sued and got a settelement of $1,120,430 for 57 former employees.
EEOC has brought a total of 12 age discrimination lawsuits against Minnesota school districts because of their discriminatory early retirement plans. All of the lawsuits have now settled for total monetary relief of over $2.6 million for more than 200 retired teachers and other employees.
Full details in EEOC press release: Stillwater School District To Pay $1.12 Million For Age Bias Against Class Of Retired Employees.
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ERISA standard of review - Big change in the 9th Circuit
August 17, 2006 by Ross Runkel at LawMemo
In Abatie v. Alta Health and Life Insurance (en banc 9th Cir 08/15/2006) Abatie sought life insurance under an employee welfare benefit plan governed by the Employee Retirement Income Security Act (ERISA). She was denied benefits, and sought judicial review. The trial court upheld the plan administrator's decision. Sitting en banc, the 9th Circuit reversed.
"We took this case en banc to reconsider our approach to ERISA cases in which a plan administrator denies benefits and (1) the wording of the plan confers discretion on the plan administrator; and (2) the plan administrator has a conflict of interest."
The court concluded that its earlier opinion in Atwood v. Newmont Gold. Co., 45 F.3d 1317 (9th Cir 1995) "misinterprets" the United States Supreme Court's decision in Firestone Tire & Rubber Co. v. Bruch, 489 US 101 (1989).
Abandoning the analysis set forth in Atwood, the court stated:
"We now establish a more comprehensive approach to ERISA cases in which a conflict of interest exists."
"We read Firestone to require an abuse of discretion review whenever an ERISA plan grants discretion to the plan administrator, but a review informed by the nature, extent, and effect on the decision-making process of any conflict of interest that may appear in the record."
"This standard applies to the kind of inherent conflict of interest that exists when a plan administrator both administers the plan and funds it, as well as to other forms of conflict."
The court also noted that
"this case requires us to consider how a court is to review an ERISA plan administrator's decision when the procedure that produced the decision did not follow all statutory requirements."
The court concluded that
"when a decision by an administrator utterly fails to follow applicable procedures, the administrator is not, in fact, exercising discretionary powers under the plan, and its decision should be subject to de novo review."
"Lesser irregularities ... do not remove the decision from abuse of discretion review, but rather should be factored into the calculus of whether the administrator abused its discretion."
The court ultimately concluded that the trial court erred under the principles established in this en banc opinion, and reversed.
Other commentary on this case:
- En Banc 9th Sets New Conflict Approch for Review Standard from Pensions & Benefits Weblog.
- 9th Cir. En Banc Formulates New Standard for ERISA Denial of Benefits Standard of Review from Workplace Prof Blog.
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Big Case #4 - Arbaugh v. Y&H Corp
August 17, 2006 by Ross Runkel at LawMemo
#4 in the Big Cases Series for 2006: Arbaugh v. Y&H Corp , 126 S.Ct. 1235 (US Supreme Court 02/22/2006)
Facts: Arbaugh sued her former employer under Title VII and related state law claims. A jury returned a verdict in her favor. After the trial court entered judgment on that verdict, Y&H moved to dismiss the entire action for want of federal subject-matter jurisdiction, asserting, for the first time, that it had fewer than 15 employees on its payroll and therefore was not amenable to suit under Title VII.
Held: Title VII’s numerical threshold does not circumscribe federal-court subject-matter jurisdiction. Instead, the employee-numerosity requirement relates to the substantive adequacy of Arbaugh’s Title VII claim, and therefore could not be raised defensively late in the lawsuit, i.e., after Y&H had failed to assert the objection prior to the close of trial on the merits.
Later cases: The same result under other statutes:
- Minard v. ITC Deltacom, 447 F.3d 352 (5th Cir 04/18/2006) (FMLA)
- Cobb v. Contract Transport, 452 F.3d 543 (6th Cir 06/28/2006) (FMLA)
- Fernandez v. Centerplate/NBSE, 441 F.3d 1006 (DC Cir 03/24/2006) (FLSA)
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Big Case #3 - Sereboff v. Mid Atlantic Medical Services
August 15, 2006 by Ross Runkel at LawMemo
#3 in the Big Cases Series for 2006: Sereboff v. Mid Atlantic Medical Services, 126 S.Ct. 1869 (US Supreme Court 05/15/2006)
Facts: The Sereboffs were injured in a traffic accident, and their ERISA plan paid their medical expenses of about $75,000. Later, the Sereboffs recovered about $750,000 in a settlement from a third party. The ERISA plan had an “Acts of Third Parties” provision which requires a beneficiary who is injured as a result of an act or omission of a third party to reimburse the plan for benefits it pays on account of those injuries, if the beneficiary recovers for those injuries from the third party. The plan sued under ERISA §502(a)(3), seeking to collect from the Sereboffs’ tort recovery the medical expenses it had paid on the Sereboffs’ behalf. The Sereboffs agreed to set aside from their tort recovery a sum equal to the amount the plan claimed, and preserve this sum in an investment account pending the outcome of the suit.
Statute: A fiduciary may bring a civil action under §502(a)(3)(B) "to obtain … appropriate equitable relief … to enforce … the terms of the plan."
Held: The plan's suit properly sought “equitable relief” under §502(a)(3).
The Court distinguished Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204 (2002), which involved a provision in an ERISA plan similar to the "Acts of Third Parties" provision in the Sereboffs’ plan. Relying on such a provision, Great-West sought equitable restitution of benefits it had paid when Knudson recovered in tort from a third party. In considering whether §502(a)(3)(b) authorized such relief, the Court asked whether the restitutionary remedy Great-West sought would have been equitable in "the days of the divided bench," id., at 212. The Court found that it would not have been equitable, because the funds Great-West sought were not in Knudson’s possession but had been placed in a trust under California law.
In contrast, in the Sereboff case the plan sought identifiable funds within the Sereboffs’ possession and control - that part of the tort settlement due to the plan and set aside in the investment account.
Later cases:
- Coan v. Kaufman, ___ F.3d ___ (2nd Cir 07/21/2006) (plan participant's suit against trustees alleging breach of fiduciary duty did not seek equitable relief)
- Dillard's Inc v. Liberty Life Assurance, ___ F.3d ___ (8th Cir 07/19/2006) (reimbursement claim for overpayments resulting from payment of social security benefits sought equitable relief)
- LaRue v. DeWolff, Boberg & Assoc, 450 F.3d 570 (4th Cir 06/19/2006) (401(k) plan participant's Section 1132(a)(3) suit against plan administrator alleging failure to follow investment instructions was not seeking equitable relief)
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One racist comment, one report to management, one less employee
August 14, 2006 by Ross Runkel at LawMemo
Jordan v. Alternative Resources (4th Cir 08/14/2006 - after a rehearing) makes me want to talk about one of the difficulties of Title VII retaliation law: What employee conduct is protected from retaliation?
In Jordan, an employee complained to management about one extremely crude racist comment from a co-worker. A month later he got fired. The court said (2-1) that no reasonable employee would believe that the one comment created a hostile work environment, so reporting it wasn't protected by Title VII, and it would be OK for the employer to fire him for that.
I'll give you three examples. Let's assume that an employee sees some horribly crude sexist conduct going on, and reports it to management, and gets fired for doing that. The conduct that the employee complained about is going to fit into one of these three groups:
- The conduct was a violation of Title VII because it was sufficiently pervasive or severe, and it was because of sex. The employer is not allowed to fire the employee for reporting the conduct.
- The conduct was not a violation of Title VII, but it was a close call, so a reasonable employee could believe that the conduct violated Title VII even though it didn't. The employer is not allowed to fire the employee for reporting the conduct.
- The conduct was not a violation of Title VII, and it was not a close call, so no reasonable employee could have believed that the conduct violated Title VII. The employer is allowed to fire the employee for reporting the conduct.
I have three serious problems with this approach.
First. Read the statute (Title VII Section 704). It says, in the part we care about here:
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by [Title VII]."
If the plain meaning of a statute has any plain meaning, then the only "practice" an employee can complain about and get Title VII protection is conduct that actually violates Title VII (category #1 above).
Category #2 above is the creation of the courts. They added this because they thought it was a good idea. I think it's a good idea too, but usually judges are only allowed to interpret Congress' statute, and not to add in all their good ideas.
Second. It's a pretty fuzzy line between category #2 and category #3. According to the judges, it's easy, because all they have to do is figure out what a reasonable person would think. But how does a male judge know what a reasonable woman would think? And how does a white judge know what a reasonable black employee would think? The Jordan case illustrates the problem; two judges voted category #3 and one judge voted category #2. "Reasonable" judges can't agree on what a "reasonable" employee would believe.
(To make it worse, I think the judges usually analyze it wrong. The real question should be whether any reasonable juror could conclude that a reasonable employee would believe there was a Title VII violation.)
Third. Category #3 creates a trap for the conscientious employee. Jordan is the great example. He sees what looks like the beginning of a racially hostile work environment, and reports it to management as he has been instructed to do. The court says he can be fired for that, because it was category #3.
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Sun Microsystems ex-employee blog
August 14, 2006 by Ross Runkel at LawMemo
Some companies are amazing. Sun Microsystems is one of them.
General Counsel Mike Dillon has started a blog called "the legal thing ..."
Folks who once were Sun employees, and whose jobs got cut, are invited to blog on the Sun web site. As Dillon puts it:
"Far from being a magnet for angry ex-employees or litigation, the site has developed into a wonderful and supportive community made up of some very talented and creative people."
I learned about this from Kevin O'Keefe's Real Lawyers Have Blogs - Fortune 500 General Counsel is a blogger.
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Big Case #2 - Garcetti v. Ceballos
August 14, 2006 by Ross Runkel at LawMemo
#2 in the Big Cases Series for 2006: Garcetti v. Ceballos, 126 S.Ct. 1951 (05/30/2006)
Facts: Ceballos, a supervising deputy district attorney, concluded that a search warrant affidavit made serious misrepresentations. He relayed his findings to his supervisors and followed up with a disposition memorandum recommending dismissal. His supervisors nevertheless proceeded with the prosecution. At a hearing on a defense motion to challenge the warrant, Ceballos recounted his observations about the affidavit, but the trial court rejected the challenge. Claiming that his supervisors then retaliated against him for his memo in violation of the First and Fourteenth Amendments, Ceballos filed a 42 USC §1983 suit.
Held: When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Key quote: "The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties." "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."
Later cases:
- Fuerst v. Clarke, ___ F.3d ___ (7th Cir 07/27/2006) (deputy sheriff was speaking in his capacity as a union representative rather than as a deputy sheriff)
- Hill v. Borough of Kutztown, ___ F.3d ___ (3rd Cir 07/26/2006) (borough manager's complaints to borough council regarding the mayor: some unprotected, some cannot be determined on a 12(b)(6) motion)
- Bailey v. Dept of Elementary & Secondary Educ, 451 F.3d 514 (8th Cir 06/23/2006) (consultant (contractor) complained to supervisor and Commissioner; speech primarily concerned consultant's own interests and "as an employee concerned with being paid for his time")
- Mills v. City of Evansville, 452 F.3d 646 (7th Cir 06/20/2006) (police sergeant's statement to managers that the police chief's staffing plan would not work was unprotected)
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Big Case #1 - Burlington Northern v. White
August 13, 2006 by Ross Runkel at LawMemo
#1 in the Big cases series for 2006: Burlington Northern v. White, 126 S.Ct. 2405 (US Supreme Court 06/22/2006).
Facts: White claimed her employer retaliated against her for complaining about sex discrimination. She claimed two acts of retaliation under Title VII Section 704:
- White was working as a fork lift operator, and the employer transferred her to a job as a standard track laborer. Both assignments were within her job description.
- Later, the employer suspended White without pay for 37 days. After she filed a grievance, the employer reinstated her and gave her full back pay. The reinstatement followed from procedures in the collective bargaining agreement.
Held: Both employer actions were prohibited retaliatory actions.
Key quote: "We conclude that the anti-retaliation provision [Section 704] does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."
- The retaliatory action need not cause financial loss.
- The retaliatory action need not occur at the workplace.
Examples: Rochon v. Gonzales, 438 F.3d 1211 (DC Cir 2006) (FBI retaliation against employee “took the form of the FBI’s refusal, contrary to policy, to investigate death threats a federal prisoner made against [the agent] and his wife”); Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination).
- The actions must be "materially adverse" - "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."
"The anti-retaliation provision seeks to prevent employer interference with 'unfettered access' to Title VII’s remedial mechanisms. Robinson v. Shell Oil Co., 519 U. S. 337, 346 (1997). It does so by prohibiting employer actions that are likely 'to deter victims of discrimination from complaining to the EEOC,' the courts, and their employers. Ibid. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence."
- The action is viewed from the perspective of the reasonable employee.
"A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. Cf., e.g., Washington v. Illinois Dept. of Revenue, 420 F. 3d 658, 662 (7th Cir 2005) (finding flex-time schedule critical to employee with disabled child)."
"A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination."
Later case: Randolph v. Ohio Dept. of Youth Services, 453 F.3d 724 (6th Cir 07/13/2006) (administrative leave, then discharge, then reinstatement with back pay).
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Ronald S. Cooper is EEOC General Counsel
August 11, 2006 by Ross Runkel at LawMemo
Today Ronald S. Cooper was sworn in as General Counsel of the EEOC. He will serve a four year term.
The EEOC’s General Counsel is responsible for the conduct of the Commission’s enforcement litigation program, which is managed by 15 Regional Attorneys in the EEOC’s district offices. The General Counsel is also responsible for the operations of all other components of the Office of General Counsel, including staff in the headquarters office, which includes a division that handles all of EEOC’s appellate and amicus curiae work.
Cooper has been with the law firm of Steptoe & Johnson LLP for 34 years. He has defended employers in federal courts throughout the country in employment discrimination actions brought under Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act (ADA). These cases include major class actions under Title VII, as well as large government enforcement actions and private group actions under the ADEA. He has also represented employers in employment contract disputes and wrongful termination cases brought under state law. Mr. Cooper has represented defendants at the trial (including bench and jury trials) and appellate level and participated in a number of significant US Supreme Court cases.
“I am honored and proud to have the opportunity to serve in this important position and to play a role in furthering EEOC’s objective of equal employment opportunity,” Mr. Cooper said after taking the oath of office from EEOC Chair Cari M. Dominguez. “My appreciation for EEOC and its mission is based on more than 30 years of observation and interaction in private practice.”
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NLRB Members and General Counsel confirmed
August 07, 2006 by Ross Runkel at LawMemo
The Senate has confirmed Peter C. Schaumber and Wilma B. Liebman to be Members of the National Labor Relations Board for 5-year terms and Ronald Meisburg to be NLRB General Counsel for 4 years.
Two Members continue to serve in recess appointments: Peter Peter N. Kirsanow and Dennis P. Walsh.
The terms of the Members and the General Counsel are as follows:
Member Schaumber was nominated by President George W. Bush on June 30, 2005 for a second term expiring August 27, 2010. His first term expired on August 27, 2005 and he received a recess appointment by the President on September 1, 2005. Member Schaumber began his legal career as an Assistant United States Attorney for the District of Columbia. After government service, he entered private practice subsequently serving as a full-time labor arbitrator before coming to the Board.
Member Liebman was nominated on August 2, 2006 by the President to serve a third term expiring August 27, 2011. She has served as a Member since November 14, 1997 when she was appointed by President Clinton and confirmed by the Senate to a 5-year term that expired on December 16, 2002. Member Liebman was reappointed by President Bush and confirmed by the Senate to a second term that will expire on August 27, 2006. She previously served for 2 years as Deputy Director of the Federal Mediation and Conciliation Service (FMCS). Prior to that she served as counsel to the International Union of Bricklayers and Allied Craftworkers (1990-1994) and the International Brotherhood of Teamsters (1980-1989).
General Counsel Ronald Meisburg was nominated by President Bush in July 2005 to be NLRB General Counsel for a 4-year term and was recess appointed by the President on January 4, 2006 to serve as General Counsel. He previously served under a recess appointment by President Bush as a Member of the Board from January 12, 2004 to December 8, 2004. From 1980-2003, he was in the private practice of labor law in Washington, D.C., most recently as a shareholder in the firm of Ogletree, Deakins, Nash, Smoak & Stewart.
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Retaliation for reporting off-duty off-premises co-worker harassment?
August 06, 2006 by Ross Runkel at LawMemo
Employers beware: Reporting non-actionable harassment can still support a claim for retaliation. That's the message from Meece v. Atlantic Southeast Airlines (ND Georgia 08/02/2006), even though the employee eventually lost. [Court opinion] [Magistrate opinion]
Stephanie Meece was a flight attendant who shared an apartment ("crash pad") with a pilot and other co-workers. Meece claimed the pilot sexually harassed her - at the apartment, at the mall, and at the movies - three or four times a week for three or four months. These incidents did not effect her job performance. After about three months, Meece reported these incidents to her supervisor. The employer discharged Meece six months after she was hired.
Meece lost on her harassment claim, primarily because the harassment occurred off-duty and off-premises.
She also lost her retaliation claim, primarily because she couldn't show the employer's reason for discharge (substandard performance) was pretextual.
The important message from this case is the court's conclusion that Meece had a reasonable and good faith belief that the non-actionable harassment was a Title VII violation.
Lots of cases hold that off-duty off-premises co-worker harassment does not violate Title VII, so you might think her belief was not "reasonable."
The court noted that some cases have found employer liability for off-duty harassment (such as when an airline pays for a flight crew's hotel room). So the court decided that "it was not unreasonable for the Plaintiff to believe the behavior constituted sexual harassment."
If Meece's evidence of pretext had not been so miserably thin, she might have had a shot at a jury. And trust me on this. Juries really do not like employers to retaliate against employees because they reported harassment.
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Unanimous NLRB gives guidance on successor's obligation to hire
August 05, 2006 by Ross Runkel at LawMemo
LawMemo's popular NLRB Law Memo today reports on an NLRB decision that clarifies a successor employer's duty to hire, setting initial terms and conditions, and remedies.
The unanimous, full-Board decision clarified (1) the analytical framework for deciding whether a successor employer unlawfully refused to hire the predecessor's employees in order to avoid a bargaining obligation, (2) the initial terms and conditions for employees formerly employed by the predecessor, and (3) the appropriate remedy for refusal to hire and for unilateral implementation of terms and conditions. Planned Building Services, Inc (NLRB 07/31/2006).The successor employer is a building maintenance company that was awarded contracts to clean buildings at which the employees had been represented by an SEIU local. The employer did not hire most of the predecessors' employees.
(1) The NLRB held that proof of unlawful refusal to hire in a successorship context is controlled by Wright Line, 251 NLRB 1083 (1980) and not by FES, 331 NLRB 9 (2000). Under Wright Line, the General Counsel has the burden to prove the employer's unlawful animus, and then the burden shifts to the employer to prove that it would have taken the same action without the unlawful animus. The FES case applies in "normal" refusal-to-hire cases, and requires the General Counsel to prove unlawful motivation plus (a) that the employer was hiring or planned to do hiring, and (b) that applicants had the relevant experience. The additional two elements in FES do not apply in successorship cases because (a) the predecessor's employees presumptively meet the successor's requirements and (b) the successor obviously must fill vacant positions.
(2) When a successor employer plans to retain all of the predecessor's employees, then the successor cannot unilaterally set beginning terms and conditions of employment. In addition, a successor who (as in this case) discriminatorily refuses to hire the predecessor's employees cannot unilaterally set beginning terms and conditions of employment.
(3) One part of the normal remedy is a make-whole remedy including back pay and benefits, measured with reference to the predecessor's terms and conditions of employment. There is always an issue of how long the back pay should run at the predecessor's rate, because the successor might negotiate a new wage rate or bargain to an impasse. The Board held that it will continue to issue its traditional make-whole remedy. However, the successor may, in a compliance hearing, prove (a) that it would not have agreed to the monetary provisions of its predecessor's collective bargaining agreement and (b) either the date on which it would have bargained new terms or the date on which it would have bargained to impasse.
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What about "at will" did you not understand?
August 03, 2006 by Ross Runkel at LawMemo
The contract said the job was "at will" meaning the employer "has the right to terminate your employment at any time."
The employee thought he could be fired "at any time" but not "for any reason."
Some lower California courts thought so too.
In Dore v. Arnold Worldwide Inc (California 08/03/2006) the contract said:
"Please know that as with all of our company employees, your employment with Arnold Communications, Inc. is at will. This simply means that Arnold Communications has the right to terminate your employment at any time just as you have the right to terminate your employment with Arnold Communications, Inc. at any time."
The employee tried to introduce evidence of oral representations, conduct, and documents that led him to reasonably understand that he would not be discharged except for cause. In other words, he claimed there was an implied-in-fact agreement that that he would not be discharged except for cause.
Lower California courts have been split on the question of whether a contract providing for termination "at any time" is susceptible to an interpretation allowing for the existence of an implied-in-fact agreement that discharge will occur only for cause.
The California Supreme Court held that the written contract was unambiguous, and that the term "at will" in an employment contract means "at any time without cause." Therefore, the "at will" provision could not be overcome by evidence of a prior or contemporaneous implied-in-fact contract requiring good cause.
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President nominates Liebman for another NLRB term
August 02, 2006 by Ross Runkel at LawMemo
Wilma B. Liebman has served as a Member of the National Labor Relations Board (NLRB) since 1997, and President Bush has nominated her for another five-year term. She is one of two Democrats on the five-Member Board. [White House announcement]
Three current Members and the General Counsel are serving in recess appointments. Perhaps the Senate will confirm all of them some day. Labor Law Blog, who broke the news, thinks the Senate will approve all these appointments this week: President Bush Nominates Wilma B. Liebman to Serve Another Term on the NLRB. We'll see.
The key players at the NLRB, with links to biographies:
- Chairman Robert J. Battista
- Member Wilma B. Liebman
- Member Peter C. Schaumber (recess appointment)
- Member Peter Peter N. Kirsanow (recess appointment)
- Member Dennis P. Walsh (recess appointment)
- General Counsel Ronald E. Meisburg (recess appointment)
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Harassment and constructive discharge
August 01, 2006 by Ross Runkel at LawMemo
Sexual harassment can create fear that a manager "was capable of, and desirous of, physically assaulting [an employee] in a serious way." If so, then the employee "should have quit immediately to protect herself."
These quotes from Patton v. Keystone RV Company (7th Cir 08/01/2006).
Brenda Patton alleged that she was sexually harassed, and that her "quit" was a constructive discharge. The trial court didn't think so, but the 7th Circuit easily found enough to justify going to trial on both issues.
It's a sad tale that was told by the employee. The court summarizes it this way (read the whole opinion for the shocking details):
The conduct alleged in this case occurred over the course of approximately one month and consists of (1) four instances of physical contact, (2) a few sexually charged comments, and (3) alleged stalking.
The most serious of these is the inappropriate touching.
[The manager's] groping of Patton under her shorts might be sufficient alone to create an abusive working environment.
This was enough for the 7th Circuit to send the case to a jury on the question of sexual harassment.
What about constructive discharge? The harassment must be "more egregious" - "so intolerable that a reasonable person would have felt compelled to resign."
Here's how the 7th Circuit saw that issue:
A reasonable fact finder could agree with Patton’s fear that her supervisor was an obsessed man who - based on previous acts showing no regard for Patton’s right to control who could touch intimate areas of her body - was capable of, and desirous of, physically assaulting her in a serious way. We need not conclude that a rape or other assault was likely, but only whether a reasonable fact finder could find that Patton should have quit immediately to protect herself. We think the answer is yes.
My view: Was the district judge reading a different record?
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Union can't photograph employees during literature distribution
August 01, 2006 by Ross Runkel at LawMemo
In a dramatic reversal of its position in a 1999 case, the NLRB says a union engaged in objectionable conduct when its agents photographed employees during the union's distribution of campaign literature. In a 3-2 decision along party lines the Board overturned an NLRB-conducted election and ordered a new election.
The case: Randell Warehouse of Arizona, Inc. and Sheet Metal Workers’ International Association, Local 359 (NLRB 07/26/2006).
Detailed summary: NLRB Finds Union Photographing Of Employees During Organizing Activities Objectionable And Orders Second Election.
The Board found that employees have a right to accept or not accept the union's literature, and that photographing them as they make that choice would reasonably be coercive. The union did not provide the employees with any legitimate justification for the photographing. Thus, the Board found that the Union's conduct tended to interfere with employee free choice in the election, and directed that a second election be held. The majority opinion is signed by Chairman Robert J. Battista and Members Peter C. Schaumber and Peter N. Kirsanow. Members Wilma B. Liebman and Dennis P. Walsh dissented.
In a previous decision, the Board had applied a different rule for union photography than for employer photography. This new decision stresses that the rules for photographing employees who are engaging in protected conduct should be the same regardless of whether the party doing the photographing is a union or an employer.
The rule:
In the absence of a valid explanation conveyed to employees in a timely manner, photographing employees engaged in Section 7 activity constitutes objectionable conduct whether engaged in by a union or an employer.
Thanks to David Kight of Spencer Fane Britt & Browne LLP for the tip.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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