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Employment Law Memo 01/19/2022
LawMemo - First in Employment Law


*** Featured Cases ***

        US - US Supreme Court will review case of football coach who prayed after each game.

        NH - Therapeutic cannabis might be a reasonable accommodation for PTSD.

        WV - Reinstatement of teacher reversed for failure to include pre-demotion behavior in post-demotion termination.

*** Capsules ***

        1st - Court has personal jurisdiction over out-of-state opt-in plaintiffs in FLSA collective action (2-1).

        4th - Discharge for not providing medical records did not violate the ADA.

        9th - Court of Appeals lacks jurisdiction over interlocutory appeal of secondary boycott case.

        9th - Court certifies question under Montana's wrongful discharge statute.

        IL - Worker is classified as an employee, not an independent contractor.

        MA - $1.5 million retirement forfeiture was not an excessive fine under the 8th amendment.

        MO - Termination upheld under the Family Educational Rights and Privacy Act and Teacher Tenure Act.

        OH - Court denies reclassification of employee to higher pay grade.

        RI - Employee failed to exhaust administrative remedies; no breach of duty of fair representation by the union.

        TN - Tennessee statute does not require a reasonable accommodation of a disability.

*** Featured Cases ***

US - US Supreme Court will review case of football coach who prayed after each game.

Kennedy v. Bremerton Sch Dist (US Supreme Ct cert granted 01/14/2022)
http://case.lawmemo.com/us/Kennedy1.pdf

The US Supreme Court granted certiorari to decide "(1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it."

Kennedy, a football coach, had a practice of praying on the 50-yard line after each game – sometimes surrounded by students and members of the public. The school district ordered him to stop, in order to prevent the district from violating the 1st amendment establishment clause. Kennedy continued, citing the 1st amendment free exercise clause. The head coach recommended against rehiring Kennedy for the next season, and Kennedy sued. The 9th Circuit ruled in favor of the school district, and denied en banc review over the objection of 11 judges.

NH - Therapeutic cannabis might be a reasonable accommodation for PTSD.

Paine v. Ride-Away (New Hampshire 01/14/2022)
http://case.lawmemo.com/nh/paine.pdf  

Paine's physician prescribed cannabis to help treat his PTSD and he enrolled in New Hampshire's therapeutic cannabis program. Paine requested that his employer grant an exception from its drug testing policy as a reasonable accommodation for his disability, but the employer told him he could no longer work for the company if he used cannabis. The employer terminated him after he gave notice that he was going to treat his PTSD with cannabis. When Paine sued the employer, the trial court granted the employer judgment on the pleadings. The New Hampshire Supreme Court reversed.

The court said, "We hold that the trial court erred in determining that the use of therapeutic cannabis prescribed in accordance with RSA chapter 126-X cannot, as a matter of law, be a reasonable accommodation for an employee's disability under RSA chapter 354-A." The state statute does not contain any language categorically excluding the use of therapeutic cannabis as an accommodation. "Whether an accommodation is legally required 'should be decided on a case-by-case basis depending on the specific facts of the case.'"

WV - Reinstatement of teacher reversed for failure to include pre-demotion behavior in post-demotion termination.

Gonzales v. Bd of Educ of Cabell County (West Virginia 01/12/2022)
http://case.lawmemo.com/wv/gonzales.pdf

Gonzales served as an assistant principal.  After a string of disciplinary actions, he was demoted to a teaching position. Gonzales protested the demotion. A Grievance Board upheld the demotion and the Circuit Court affirmed the Board's decision. Gonzales then began serving as a teacher. After four weeks he was terminated for unsatisfactory performance. An administrative law judge (ALJ) reinstated Gonzales as a teacher. The employer appealed. The Circuit Court reversed.  Affirmed.

Gonzales argued that the Circuit Court erred by (1) holding Gonzales was not entitled to an opportunity to improve, and by substituting (2) factual findings and (3) credibility determinations for those of the ALJ.  Regarding opportunity to improve, the Supreme Court of Appeals said Gonzales's actions were not derivative of an original performance issue but instead, his pervasive refusal to follow directions. The court also said the circuit court properly found that the ALJ erred by refusing to consider actions that led to Gonzales's demotion, and by failing to cite to any precedent for such refusal. Therefore, contrary to substituting its factual findings, the circuit court rightfully considered Gonzales's pre-demotion behavior (which was included in the record), in addition to his post-demotion behavior. Lastly, nowhere did the circuit court address credibility determinations. Instead, it corrected an errant application of law to the facts due to the ALJ's lack of consideration of Gonzales's employment history and/or prior disciplinary actions in determining whether the discipline imposed was reasonable and proper.

*** Capsules ***

1st - Court has personal jurisdiction over out-of-state opt-in plaintiffs in FLSA collective action (2-1).

Waters v. Day & Zimmerman NPS (1st Cir 01/13/2022)
http://case.lawmemo.com/1/waters.pdf

Waters sued alleging failure to pay him and other similarly situated employees and former employees overtime wages in violation of the Fair Labor Standards Act (FLSA). More than 100 employees opted in to this collective action. The trial court denied the employer's motion to dismiss for lack of personal jurisdiction, and the 1st Circuit (2-1) affirmed. The claims subject to the motion to dismiss were the claims of employees who had opted in to the collective action but, who, unlike Waters, had worked for the company outside of Massachusetts. The court rejected the argument that Federal Rule of Civil Procedure 4(k)(1) independently limits a federal court's exercise of personal jurisdiction with respect to out-of-state opt-in claimants added after service of process has been effectuated. This ruling is contrary to rulings in similar cases in the 6th and 8th Circuits.

The DISSENT would dismiss this appeal because it is interlocutory, and allow the trial court proceedings to continue.

4th - Discharge for not providing medical records did not violate the ADA.

Coffey v. Norfolk Southern Railway (4th Cir 01/14/2022)
http://case.lawmemo.com/4/coffey.pdf

Coffey sued under the Americans with Disabilities Act (ADA) to challenge the railroad's right to request certain medical records and discharge him for failure to comply. The trial court found that the railroad made a lawful request under the ADA and granted summary judgment to the railroad. The 4th Circuit affirmed. Coffey was a railway engineer who had tested positive for codeine and amphetamines. The railroad requested medical records which Coffey did not produce, thus leading to his termination. The court found that the railroad's requests were required in order to comply with government regulation, and job-related within the meaning of the ADA.

9th - Court of Appeals lacks jurisdiction over interlocutory appeal of secondary boycott case.

ICTSI Oregon v. ILWU (9th Cir 01/18/2022)
http://case.lawmemo.com/9/ICTSI.pdf

The 9th Circuit dismissed, for lack of jurisdiction under 28 U.S.C. 1292(b), an appeal and a cross-appeal from the trial court's order addressing post-judgment motions following a jury verdict in favor of an employer on its claim that a union engaged in an illegal secondary boycott at the Port of Portland. One requirement for asserting jurisdiction over an interlocutory appeal under 1292(b) is that the trial court's order rests on a controlling question of law. In this case the question on which the union relied was not a question of law because the parties' dispute about whether the employer became a primary employer under the circumstances of this case was a question of fact.

9th - Court certifies question under Montana's wrongful discharge statute.

Smith v. Charter Communications (9th Cir 01/18/2022)
http://case.lawmemo.com/9/smith1.pdf

Smith sued under Montana's wrongful discharge statute, alleging that the employer lacked "good cause" to fire him. The trial court granted summary judgment to the employer. The 9th Circuit certified the following question to the Supreme Court of Montana: "Whether, in an action for wrongful discharge pursuant to Montana Code Annotated section 39-2-904, an employer may defend a termination solely for the reasons given in a discharge letter, as the court held in Galbreath v. Golden Sunlight Mines, Inc., 890 P.2d 382 (Mont. 1995), or whether the 1999 statutory amendments have superseded the Galbreath rule."

The Montana Supreme Court held in the Galbreath case that an employer could not establish good cause for a termination on grounds that were not set forth in the employee's termination letter, but some courts have concluded that later statutory amendments superseded Galbreath's rule. The 9th Circuit wants the Montana court's answer in order to decide the present case.

IL - Worker is classified as an employee, not an independent contractor.

O'Malley v. Udo (Illinois Ct App 01/14/2022)
http://case.lawmemo.com/il/O’Malley.pdf

O'Malley sued claiming a violation of the Illinois Wage Payment and Collection Act. The trial court held that the Act did not apply because O'Malley was an independent contractor rather than an employee. The Illinois Court of Appeals reversed. One statutory criterion for being an independent contractor is "performs work which is either outside the usual course of business or is performed outside all of the places of business of the employer unless the employer is in the business of contracting with third parties for the placement of employees." The court found that "Clearly, O'Malley's work at IAT was necessary to the business." O'Malley not only worked for IAT out of his home office, but he also presented at roadshows on behalf of IAT and traveled to attend meetings with banks and potential clients of the company. The court found that these locations were IAT's place of business.

MA - $1.5 million retirement forfeiture was not an excessive fine under the 8th amendment.

Bisignani v. Justices (Massachusetts Ct App 01/14/2022)
http://case.lawmemo.com/ma/Bisignani.pdf

After Bisignani pleaded guilty to numerous crimes relating to his roles as town manager and town administrator, the retirement board of voted to forfeit his entire retirement allowance. Bisignani did not contest that his convictions triggered a statutory forfeiture provision. His objection was that the amount of the forfeiture was an excessive fine in violation of the 8th amendment. The Massachusetts Court of Appeals disagreed, finding that the forfeiture was not "grossly disproportional to the gravity of [Bisignani's] offense." The value of Bisignani's retirement package was about $1.5 million – far greater than any other retirement allowance forfeitures upheld by Massachusetts courts. The court said, "Although we agree that the amount of the forfeiture is substantial, so too is the gravity of Bisignani's offenses and the degree of his culpability." The criminal acts that led to his convictions spanned five and one-half years and occurred in two separate municipalities, and, "Facing a criminal investigation and grand jury proceedings, Bisignani committed four more crimes in an effort to cover up his felonious behavior, and to obstruct the interests of justice."

MO - Termination upheld under the Family Educational Rights and Privacy Act and Teacher Tenure Act.

Ferry v. Jefferson City Public Sch Dist (Missouri 01/11/2022)
http://case.lawmemo.com/mo/ferry.pdf

Ferry was a teacher. For use in her discrimination suit against the school district, she copied and transferred thousands of files, hundreds of which contained confidential student information, from the school Google account to her personal Google account. The Board of Education (Board) terminated Ferry, saying she made a prohibited disclosure that violated board policy. The Circuit Court reversed, saying Ferry had not "disclosed" information, as defined in the Family Educational Rights and Privacy Act (FERPA). Reversed.

The Supreme Court noted that the Board ensures compliance with FERPA by a) limiting permissible access and use of confidential information to FERPA's recognized exception of "a legitimate educational interest in the information" and b) pursuant to the Teacher Tenure Act, authorizing termination when a violation of the Board's policies is "willful or persistent."  Ferry asserted that, in practice, it was a common occurrence for teachers to copy and export data that included student information. However, the court noted the lack of evidence that any teacher did so without a legitimate educational interest.  Additionally, Ferry had been provided with training relating to the Board policies at issue, namely that willfulness can be inferred from a single violation of a policy coupled with the teacher's prior knowledge of the policy.

OH - Court denies reclassification of employee to higher pay grade.

Gerst v. Ohio Dept of Transportation (Ohio Ct App 01/13/2022)
http://case.lawmemo.com/oh/gerst.pdf

Gerst's suit challenged the denial of her request for reclassification of her position with Ohio Department of Transportation from HCM Senior Analyst, Pay Range 12 to HCM Manager, Pay Range 14. In a fact-intensive analysis, the Ohio Court of Appeals affirmed the denial. Although she does coordinate subprograms within her assigned districts or even those that are not her assigned districts, she does not implement subprograms agency wide, as required by the HCM Manager position. Although she performs 9 of the 15 major job duties on a "regular and frequent basis," there are 6 major job duties of the HCM Manager that she does not do, including responsibilities related to benefits, payroll, labor relations, and training and safety.

RI - Employee failed to exhaust administrative remedies; no breach of duty of fair representation by the union.

Eddy v. Pascoag Fire Dist (Rhode Island 01/14/2022)
http://case.lawmemo.com/ri/eddy.pdf

Eddy worked as a firefighter and emergency medical technician. He was terminated after an investigation into the death of a person under his care during a medical transport. Eddy sued for breach of contract against the employer and breach of duty of fair representation against the union. The Superior Court granted summary judgment in favor of the employer and the union.  Affirmed.  

Eddy maintained (1) the employer should be equitably estopped against asserting Eddy failed to exhaust his administrative remedies because the fire chief "basically threatened" him by claiming that things would get worse for him if he pursued the issue. And (2) the union acted arbitrarily, discriminatorily, or in bad faith by giving Eddy only one day's notice that he needed to retain an attorney at his own expense which resulted in failure to timely file for proceeding to arbitration.  As to estoppel, the court held that Eddy continued to challenge his termination after the alleged threatening conversation and so, the estoppel claim fails. As to the referenced "deadline" that passed because Eddy was unable to retain an attorney, the court noted that the union's "condition" did not prevent Eddy from notifying the employer in writing of his desire to proceed further with the grievance which was all that was required by Eddy within the one day time frame.

TN - Tennessee statute does not require a reasonable accommodation of a disability.

Black v. Clarksville (Tennessee Ct App 01/13/2022)
http://case.lawmemo.com/tn/black.pdf

Black sought a reasonable accommodation of her debilitating rheumatoid arthritis. The employer was unable to provide a reasonable accommodation and, after concluding that Black's disability rendered her physically unable to perform the essential functions of her job, the employer removed her from her position and placed her on paid sick leave. Black then resigned and sued the employer for discriminatory discharge under the Tennessee Disability Act (TDA). The trial court granted summary judgment to the employer. The Tennessee Court of Appeals affirmed on the ground that the TDA – unlike the ADA – does not impose a duty to reasonably accommodate an employee's disability. The court said, "The TDA, unlike the ADA, contains no reasonable accommodation requirement. As a result, an employer does not violate the TDA by failing to provide a reasonable accommodation to assist an employee in performing the duties of his or her job." Also, due to the fact that Black resigned, she did not suffer an adverse employment action.

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Editor: James Baez, James@LawMemo.com. Copyright by LawMemo, Inc., PO Box 9182, Portland, OR 97207, (503) 227-1500. We are sending Employment Law Memo three times per week. To unsubscribe, reply to this email with the word "REMOVE" in the subject line.

 

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