Employment Law Memo 01/19/2022
First in Employment Law
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.
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
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
MO - Termination
upheld under the Family Educational Rights and Privacy Act and Teacher
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.
Bremerton Sch Dist (US Supreme Ct cert granted 01/14/2022)
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
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.
Paine v. Ride-Away
(New Hampshire 01/14/2022)
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
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.'"
Gonzales v. Bd of
Educ of Cabell County (West Virginia 01/12/2022)
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.
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.
Waters v. Day &
Zimmerman NPS (1st Cir 01/13/2022)
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.
Coffey v. Norfolk
Southern Railway (4th Cir 01/14/2022)
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.
ICTSI Oregon v.
ILWU (9th Cir 01/18/2022)
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.
Smith v. Charter
Communications (9th Cir 01/18/2022)
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."
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
O'Malley v. Udo
(Illinois Ct App 01/14/2022)
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.
Justices (Massachusetts Ct App 01/14/2022)
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."
Ferry v. Jefferson
City Public Sch Dist (Missouri 01/11/2022)
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
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.
Gerst v. Ohio Dept
of Transportation (Ohio Ct App 01/13/2022)
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.
Eddy v. Pascoag
Fire Dist (Rhode Island 01/14/2022)
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.
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.
Clarksville (Tennessee Ct App 01/13/2022)
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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