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Employment Law Memo 07/07/2008
July 07, 2008 by Ross Runkel at LawMemo
Here's the Employment Law Memo that landed in our subscribers' mailboxes this morning:
| Employment Law Memo 07/07/2008 LawMemo First in Employment Law |
*** Featured Cases ***DC - "Sleeping" is a major life activity under the ADA.Desmond v. Mukasey (DC Cir
07/01/2008) Desmond sued the federal employer, asserting disability discrimination (disparate treatment and retaliation) claims under the Rehabilitation Act. The trial court granted summary judgment in favor of the employer on the discrimination claim, and the employer prevailed after a jury trial on the retaliation claim. The DC Circuit reversed as to the disability discrimination claim and affirmed as to the retaliation claim. The court held that "sleeping" is a major life activity under the Rehabilitation Act. The court reasoned that this conclusion is consistent with the United States Supreme Court's instruction (in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 US 184 (2002)) that "'[m]ajor life activities'...refers to those activities that are of central importance to daily life[.]" The court also reasoned that sleep is "more central to the life process itself" than some of the generally recognized major life activities (such as seeing, hearing, and speaking). The court rejected the argument that an employee is required to show some adverse effect on work performance (or his "waking life" in general). The court noted that "nothing in the statute suggests that to claim the Act's protection a plaintiff ... must demonstrate that his impairment affects his work performance in some way or has an ancillary effect on his waking life in general." The court also noted that although such a consideration may become relevant when an employee requests an accommodation, that was not an issue in this case. 6th - Court identifies proper summary judgment framework for Title VII mixed-motive claims supported by circumstantial evidence.White v. Baxter Healthcare (6th Cir
07/03/2008) White sued the employer, asserting (among other things) race discrimination (disparate treatment) claims under Title VII. The trial court granted summary judgment in favor of the employer. The 6th Circuit reversed. One of White's claims was asserted under a mixed-motive theory and supported by circumstantial evidence. The 6th Circuit had not previously determined the proper summary judgment framework for a Title VII mixed-motive claim supported by circumstantial evidence. The court noted that, since the United States Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 US 90 (2003), the federal circuits have taken widely differing approaches to this issue. The court held, "to survive a defendant's motion for summary judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) 'race, color, religion, sex, or national origin was a motivating factor' for the defendant's adverse employment action." The court noted that "[t]his burden of producing some evidence in support of a mixed-motive claim is not onerous and should preclude sending the case to the jury only where the record is devoid of evidence that could reasonably be construed to support a plaintiff's claim." The court determined ultimately that White produced sufficient evidence of discriminatory motive to get to a jury on his mixed-motive race discrimination claim, and sufficient evidence of pretext on his other race discrimination claim. 2nd - Employers have a duty under the ADA to reasonably accommodate an employee's "obvious" disability - even absent a request for accommodation.Brady v. Wal-Mart Stores (2nd Cir
07/02/2008) Brady sued the employer, asserting (among other things) disability discrimination (disparate treatment, hostile work environment, and failure to reasonably accommodate) claims under the Americans with Disabilities Act (ADA) and state law. Brady prevailed in substantial part after a jury trial, and accepted remittitur. The 2nd Circuit affirmed. Brady suffered from cerebral palsy. Moreover, there was evidence on the record that it was readily apparent that he suffered from a disability. However, Brady never requested an accommodation and in fact testified that he didn't think he needed one. The 2nd Circuit has previously held that "[g]enerally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed." Prior to this case, the 2nd Circuit had not been presented with an opportunity to consider when that general rule might be inapplicable. Taking advantage of that opportunity here, the court held "an employer has a duty to reasonably accommodate an employee's disability if the disability is obvious - which is to say, if the employer knew or reasonably should have known that the employee was disabled." The court noted that its approach "is consistent with the statutory and regulatory language, which speaks of accommodating 'known' disabilities, not just disabilities for which an accommodation has been requested." 3rd - A public employee's truthful in-court testimony constitutes speech on a matter of public concern, even if made in the course of official duties.Reilly v. Atlantic City (3rd Cir
07/01/2008) Reilly sued the employer and individual defendants, asserting (among other things) a claim for 1st Amendment retaliation. The trial court denied the defense of qualified immunity as to this claim. The 3rd Circuit affirmed. Reilly's claim arose from the allegation that he was discharged in retaliation for testifying at trial during the criminal prosecution of another police officer. His testimony stemmed from his official duties during an investigation related to that prosecution. In Garcetti v. Ceballos, 547 US 410 (2006), the United States Supreme Court held that "the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities." However, the Garcetti opinion focused solely on speech contained in an internal memo - it did not decide whether Garcetti's testimony was entitled to 1st Amendment protection. The court held that Reilly's truthful in-court testimony constituted speech touching on a matter of public concern entitled to 1st Amendment protection. The court reasoned "the citizen's obligation to testify truthfully is no weaker when one is employed by the government....Thus, the act of offering truthful testimony is the responsibility of every citizen, and the First Amendment protection associated with fulfilling that duty of citizenship is not vitiated by one's status as a public employee." Dist - A national origin discrimination claim based on an English-proficiency requirement is cognizable under the DCHRA.Esteňos v. PAHO/WHO Fed Credit
Union (District of Columbia 07/03/2008) Esteňos sued the employer, asserting a national origin discrimination claim under the District of Columbia Human Rights Act (DCHRA). The trial court granted summary judgment in favor of the employer. The court reversed. The trial court determined that although discrimination based on a foreign accent (or the ability to speak a foreign language) can constitute national origin discrimination under the DCHRA, the DCHRA does not prohibit discrimination based on the inability to speak English proficiently. The court disagreed, concluding that a national origin discrimination claim based on an English-proficiency requirement is cognizable under the DCHRA. The court noted that "[l]anguage-proficiency requirements can be based on perfectly legitimate considerations, but they are also capable of use to discriminate against nationals of countries where the language is not generally spoken." The court noted that the Equal Employment Opportunity Commission (EEOC) in 29 CFR Section 1606.6(b)(1) "has identified 'fluency-in-English' and 'English-only' requirements for employment as possibly discriminatory and, thus, it will 'carefully investigate charges involving these selection procedures for both disparate treatment and disparate adverse impact on the basis of national origin.'" On an unrelated issue, the court held that "timely filing a claim with the [EEOC], which in turn cross-files with the [District of Columbia Office of Human Rights], tolls the time for filing a private right of action under D.C. law." MO - Continued at-will employment does not constitute legal consideration for a contract to arbitrate.Morrow v. Hallmark Cards (Missouri
Ct App 06/30/2008) Morrow sued the employer, asserting state law claims for age discrimination and retaliation. The trial court granted the employer's motion to compel arbitration, and ultimately dismissed the case. The court reversed. The employer's arbitration agreement was presented to employees as a condition of continued employment. Employees were deemed to have accepted the agreement by continuing to work after being notified of its existence. The agreement was one-sided, in that the employer was not obligated to arbitrate any of its potential claims. The court held that "the arbitration program is not a contract but a term or condition of employment-at-will that terminates when the employment terminates." The court concluded that "the purported 'contract' lacks mutuality in the absence of some...legal consideration to support an agreement requiring that the employees unilaterally give up their right of access to the courts." Significantly, the court also concluded that "continued at-will employment...cannot constitute legal consideration for a contract to arbitrate." Since Morrow was no longer an employee at the time she filed suit, and thus not subject to the employer's arbitration agreement, the court reversed. MO - Employee who continued employment after employer's alleged breach of contract wasn't equitably estopped from asserting breach of contract claim.Comens v. SSM St Charles Clinic
(Missouri Ct App 06/30/2008) Comens sued the employer, asserting a claim for breach of contract (based on the employer's modification of his compensation formula). The trial court granted summary judgment in favor of the employer, based on its conclusion that Comens was equitably estopped from asserting his claim because he continued to accept compensation, benefits, and continued employment after the employer's modification of the parties' agreement. The court reversed. In order for equitable estoppel to apply, "the representation made by the party estopped must be inconsistent with the claim afterwards asserted ...." Summarizing Missouri cases on the issue, the court reasoned "[w]e find that these cases collectively indicate that when a plaintiff has made timely and frequent complaints which notified the defendant that there was a disagreement about a particular issue prior to the plaintiff making a claim about that issue, the plaintiff has not made inconsistent representations." Since Comens had made timely complaints about the modification while remaining employed, the court concluded that the employer did not establish the affirmative defense of equitable estoppel. OH - National Bank Act preempts Ohio employment discrimination laws. (2-1)Boesch v. Champaign Natl Bank (Ohio
Ct App 06/30/2008) The National Bank Act (NBA) gives national bank boards of directors the power to appoint and dismiss bank officers "at pleasure." The court held that the NBA preempts Ohio employment discrimination (and retaliation) laws set forth in R.C. 4112. The court noted that "[t]he Sixth Circuit has repeatedly held that the 'at pleasure' language preempts state employment law in this regard." The court also noted there is an Ohio state court decision rejecting this approach (White v. Fed. Reserve Bank (1995), 103 Ohio App.3d 534). NY - Court addresses certified questions from 2nd Circuit regarding New York's Whistleblower Law and New York's Health Care Whistleblower Law.Reddington v. Staten Island Univ
(New York 07/01/2008) New York's Whistleblower Law is set forth in Labor Law Section 740. New York's Health Care Whistleblower Law is set forth in Labor Law Section 741. New York's Whistleblower Law has a waiver provision (Section 740(7)), which provides that "the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law." The 2nd Circuit certified to the court the following two questions: 1) "[d]oes the institution of a time-barred claim pursuant to...section 740 simultaneously with a claim pursuant to...section 741 trigger section 740(7)'s waiver provision and thereby bar the section 741 claim, even if the section 740 claim is subsequently withdrawn?"; and 2) "[d]oes the definition of employee in...Section 741 encompass an individual who does not render medical treatment...?" The court held that the answers to these questions is "no." CA - California Labor Code provisions relating to overtime compensation, meal breaks, and rest breaks don't apply to California's "charter counties."Curcini v. County of Alameda
(California Ct App 07/01/2008) The court held that California Labor Code Sections 510, 226.7, and 1194 (relating to overtime compensation, meal breaks, and rest breaks) do not apply to California's "charter counties." The court noted that under the California Constitution 1) "[w]hen a California county adopts a charter, its provisions 'are the law of the State and have the force and effect of legislative enactments[;]'" and 2) "under the 'home rule' doctrine, county charter provisions concerning the operation of the county, and specifically [those] including the county's right to provide 'for the number, compensation, tenure, and appointment of employees[,]'...trump conflicting state laws." *** Capsules ***2nd - Injunction in public employee's favor, based on equal protection "class of one" claim, reversed.Appel v. Spiridon (2nd Cir
07/02/2008) Based on an equal protection "class of one" claim, Appel obtained an injunction enjoining the public employer from requiring her to submit to a psychological examination as a condition of employment. The court reversed, based on the United States' Supreme Court's disavowal (in Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008)) of such claims in the public employment context. 7th - Dispute between union and employer fell within neutrality agreement's arbitration clause.United Steel Union v. TriMas Corp
(7th Cir 07/03/2008) The union filed suit under the Labor-Management Relations Act (LMRA), seeking to compel arbitration of a dispute relating to a "neutrality agreement" between the parties. The trial court granted summary judgment in favor of the union. The 7th Circuit affirmed, concluding that "the district court was correct in finding that the dispute was covered by the language of the [neutrality agreement's] arbitration clause and in leaving consideration of ... extrinsic evidence to the arbitrator." 10th - Civilian military recruiters don't fall within FLSA's "outside salesman" exemption.Clements v. Serco Inc (10th Circ
07/01/2008) Clements sued the employer, asserting a claim for unpaid overtime compensation under the Fair Labor Standards Act (FLSA). The trial court granted summary judgment in favor of Clements. The 10th Circuit affirmed. Clements was a civilian military recruiter who worked for a private recruiting company under contract with the government. The court concluded that Clements did not fall within the FLSA's "outside salesman" exemption, reasoning that civilian military recruiters "engaged in promotional work, paving the way for someone else - the United States Army - to make the sale." The court also affirmed the trial court's calculation of unpaid wages under the "fluctuating workweek" method. CT - Jury in state law retaliation case was appropriately instructed as to the definition of sexual harassment.Griffin v. Yankee Silversmith
(Connecticut Ct App 07/08/2008) Griffin sued the employer, asserting a state law claim that she was discharged in retaliation for complaining about sexual harassment. The employer prevailed after a jury trial. The court affirmed, concluding that the jury was appropriately instructed as to the definition of sexual harassment. NY - Union waived police officers' right to counsel during "critical incident reviews" by not addressing that in their collective bargaining agreement.Police Benevolent Assoc v. New York
State Police (New York 07/01/2008) The police officers' union filed suit, claiming that the public employer's denial of counsel (or union representation) during "critical incident reviews" violated Civil Service Law Section 75(2) and the officers' constitutional right to counsel. The trial court granted summary judgment in favor of the union, but the appellate court below reversed. The court affirmed, concluding that the union waived any right of representation the officers might have had during critical incident reviews by not addressing the issue in the parties' collective bargaining agreement. OH - Court rejects constitutional challenges to Ohio's School District Fiscal Emergency statute.East Liverpool Ed Assoc v. East
Liverpool Sch Dist (Ohio Ct App 06/30/2008) The public school teachers' union sought a declaratory judgment finding Ohio's School District Fiscal Emergency statute (R.C. Chapter 3316) unconstitutional. The union also sought to void the Ohio State Auditor's declaration of a fiscal emergency. The trial court granted judgment as a matter of law in favor of the public school district and other defendants. The court affirmed. The court reasoned that 1) it recently rejected nearly identical constitutional challenges to the provisions at issue; and 2) R.C. 3316.03(E) "clearly provides that only the school district board of education can appeal the Auditor's determination as to a fiscal emergency." OH - Employee suing school district for breach of contract failed to exhaust administrative remedies.Lindeman v. South-Western Sch Dist
(Ohio Ct App 06/30/2008) Lindeman's position with the public school district was cut in a reduction-in-force. He sued the employer, asserting (among other things) a claim for breach of contract. The trial court granted summary judgment in favor of the employer. The court affirmed, concluding that Lindeman failed to exhaust his administrative remedies. OH - Public employee's due process rights were violated when she was placed on involuntary disability leave.Thomas-Abel v. Ohio Dept of Rehab
(Ohio Ct App 06/30/2008) Thomas-Abel was placed on involuntary disability separation from her job as a parole officer. The trial court determined that Thomas-Abel's due process rights had been violated. The court affirmed, agreeing with the trial court's conclusion that Thomas-Abel's due process rights were violated because "she was first promised and then denied the opportunity to call witnesses, present testimony, and refute the [relevant psychological evaluation that led to her separation]." TX - Employee in Texas Whistleblower Act case produced no evidence that she made a report to an appropriate law enforcement authority.Reininger v. Texas Building Commn
(Texas Ct App 07/03/2008) Reininger sued the public employer, alleging that she was discharged in violation of the Texas Whistleblower Act. The trial court granted summary judgment in favor of the employer. The court affirmed, concluding that Reininger produced no evidence that she made a report to an entity she "could have believed in good faith" was an appropriate law enforcement authority. TX - Hostile work environment religious harassment claim was within scope of employee's Texas Commission on Human Rights discrimination charge.Bartosh v. Sam Houston State Univ
(Texas Ct App 06/30/2008) Bartosh sued the employer, asserting state law claims for religious discrimination (disparate treatment and hostile work environment harassment) and retaliation. The trial court dismissed all of Bartosh's claims. The court reversed as to the disparate treatment claim, and otherwise affirmed. The court concluded that 1) Bartosh's disparate treatment claim was within the scope of the complaint she filed with the Texas Commission on Human Rights (TCHR), but the hostile work environment claim was not; and 2) Bartosh failed to produce sufficient evidence of causation in support of her retaliation claim. WI - Teachers' placement of signs in classrooms constituted "concerted activity" under Wisconsin's Municipal Employment Relations Act.Milwaukee Bd of Sch Directors v.
Wisconsin Empl Rel Commn (Wisconsin Ct App 07/01/2008) The Wisconsin Employment Relations Commission (WERC) determined that the public employer violated the Municipal Employment Relations Act (MERA) by prohibiting its teachers from placing signs in certain locations customarily occupied by students. The trial court upheld that decision. The court affirmed, concluding that WERC didn't err in determining that the placement of signs in classrooms constituted "lawful concerted activity" protected under the MERA. |
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Employment Law Editor: Ross Runkel, Professor of Law Emeritus.
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