Sixth Circuit: Pro Se Plaintiff Gets Another Chance to Prove Unlawful Retaliation

Earlier this month, the Sixth Circuit Court of Appeals in Cincinnati reversed summary judgment for an employer on a retaliation claim brought by a pro se plaintiff while affirming dismissal of the underlying discrimination claim based on the same factual allegations.  Lasterv. City of Kalamazoo, No. 13-1640 (6^th Cir. 3-13-14).   The Court affirmed dismissal of the underlying discrimination claim because many of the alleged events had been remedied when grieved and had not been implemented with the intent of forcing the plaintiff to retire.   Without a constructive discharge, the Court concluded that the plaintiff could not show that he suffered a "materially adverse employment action" as necessary in a Title VII discrimination claim.  However, the Court concluded that the district court erred by analyzing the Title VII retaliation claim under the same analysis applied to the First Amendment retaliation claims and the Title VII discrimination claims.  Title VII retaliation claims have a lower burden of showing a “materially adverse action” and could survive summary judgment based on the same alleged facts that were just found insufficient to support a discrimination claim.

According to the Court’s opinion, the plaintiff alleged that during the 23 years he served as a public safety officer,

he was treated less favorably than similarly-situated co-workers. Specifically, Plaintiff alleges that KDPS subjected Plaintiff to heightened scrutiny, selectively enforced policies against Plaintiff, and was complicit when individual employees harassed and discriminated against Plaintiff. Plaintiff alleges that such disparate treatment was attributable, at least in part, to Plaintiff’s race or to his complaints about discrimination.

As examples, he complained about his sergeant downgrading a performance evaluation with the approval of the captain, but the decision was reversed when he filed a union grievance. He was initially denied permission to attend part of an out-of-state safety conference and was only approved for half of the expenses involved after two white employees were approved to attend for the full week with all of their expenses covered.   After a sergeant complained that the plaintiff and a white co-worker were disruptive in the meeting (with the white co-worker being particularly so, according to the sergeant), the plaintiff was suspended without pay for two days while his white co-worker suffered no disciplinary action.  When the plaintiff complained about the discriminatory treatment, his suspension was rescinded.  There was also an incident about an anti-Obama screensaver which was used a week after the plaintiff shared pictures of himself with the President.  The opinion details 11 such incidents over the few years before the litigation commenced.  

The plaintiff also filed several formal complaints of discrimination with the Human Resources Department.  When he felt that no one treated his complaints seriously, he filed an EEOC Charge, which resulted in a finding of probable cause of discrimination and request by the EEOC for the city employer to take certain actions.  When the city refused to take the requested actions, the matter was referred to the Department of Justice.  The plaintiff complained of additional harassment and retaliation to the EEOC, which was also referred to the DOJ.  Ultimately, instead of bringing its own lawsuit, the DOJ issued the plaintiff his own right-to-sue letter.

In the meantime, in June 2010, President Barack Obama was the guest speaker at the Kalamazoo Central High School commencement ceremony which was held at Western Michigan’s Field House. To ensure the President’s safety, KDPS positioned police personnel at all entrances. Plaintiff was not among those officers who were on duty that day. Rather, Plaintiff had acquired four tickets to attend the commencement with his family.

Plaintiff attended the commencement along with his wife and two daughters on June 7, 2010. Plaintiff contends that he had ascertained a permissible parking location in advance from a Western Michigan Public Safety Officer. According to Plaintiff, he parked in the indicated parking location without incident, and did not have any negative interactions with KDPS personnel, Secret Service, or any other individuals or law enforcement officers. According to Defendants, Plaintiff “crashed” his vehicle into a police car and left the scene of the accident, “negatively engaged with supervisory officers,” and tried to make an unauthorized entry into the area where the President of the United States was seated. Defendants contend that “Plaintiff entered the building and engaged in a series of acts that may have constituted violations of either law or department policy and rules.”

KDPS began an internal investigation into possible wrongdoing by Plaintiff. During the investigation, KDPS interviewed Plaintiff and various employees who either interacted with or observed Plaintiff that day. Each witness submitted varying factual encounters of the incident, but the investigation resulted in no conclusive findings that Plaintiff had been drinking or was intoxicated.

 . . .

In August 2010, when KDPS had concluded its internal investigation into Plaintiff’s alleged wrongdoing, Plaintiff and Union Representative Laura Misner were provided with notice that Plaintiff would have a “pre-determination hearing” on September 2, 2010. . . .

Prior to the scheduled pre-determination hearing, Plaintiff was advised that if he were terminated, he would not be eligible for health insurance benefits for his dependents––including his pregnant wife and two young children––and his retirement package would be deferred. Plaintiff was extremely concerned about losing health insurance benefits for his family.

This inaccurate COBRA advice about his health benefits was confirmed in writing by the Human Resources Department, although there was no evidence that the misstatements were intentional or communicated with a discriminatory or retaliatory intent.  Plaintiff was also informed that there were rumors that he was to be terminated at the conclusion of the pre-determination hearing, although he would be able to appeal his termination through the union grievance process.   He was, therefore, encouraged by a number of people to retire in order to avoid termination and the loss of his health benefits.  However, because he would be retiring after 23 years of service, he would not be eligible for a full pension that employees with 25 years of service receive.  Following his retirement, the city released a copy of its investigation report into the graduation ceremony incident pursuant to a FOIA request by a reporter.   The local newspaper reported the story and included an internet link to his entire personnel file, which greatly embarrassed the plaintiff and his family. He then filed suit.

No Materially Adverse Employment Action to Support Title VII Discrimination Claim.  With respect to the plaintiff’s Title VII race discrimination claim, the Court concluded that the plaintiff could not show that he had been constructively discharged and had failed to precisely identify other discriminatory events, and thus, had not suffered a materially adverse employment action.

In the context of a Title VII discrimination claim, an adverse employment action is defined as a “materially adverse change in the terms or conditions” of employment. Kocsis v.Multi-Care Mgmt. Inc., 97 F.3d 876, 885 (6th Cir. 1996). An adverse employment action “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Adverse employment action “requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors.” Id. at 762. In addition, it typically “inflicts direct economic harm.” Id.

Most of the alleged events (such as his unpaid suspension) which plaintiff identified had been rectified through the union grievance process and, therefore, could not constitute a basis for discrimination after they had been cured.   The Court concluded that there was also insufficient evidence of a constructive discharge.  “A constructive discharge occurs when the employer, rather than acting directly, ‘deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.’”  It can also occur “where, based on an employer’s actions, “the handwriting was on the wall and the axe was about to fall.” 

Although Plaintiff has presented some evidence that he was subjected to heightened scrutiny and treated differently than his non-minority peers, he has not presented any evidence that this behavior was undertaken with the specific intention of forcing Plaintiff to quit. Indeed, Plaintiff ultimately resigned not because of the “intolerable” working conditions, but because he received bad information. Upon review of the evidence, it appears that this informational error was inadvertent and was not intended to force Plaintiff to quit. Simply put, Plaintiff has not adduced sufficient evidence to show that Defendants deliberately created intolerable working conditions with the intention of forcing Plaintiff to quit.

The Court also found insufficient evidence that the plaintiff was certain to be discharged if he did not first resign.  Although he heard rumors that he was to be terminated at the conclusion of the pre-disciplinary hearing, he had not heard these “rumors” from anyone with first-hand knowledge.  In other words, it was only speculation.

Sufficiently Adverse Employment Actions to Support Title VII Retaliation Claim.  Title VII also protects an employee’s opposition to discrimination.  Unlike Title VII discrimination claims which require evidence of materially adverse employment actions, retaliation claims only require evidence of materially adverse actions (whether employment related or not).   Also unlike Title VII discrimination claims, retaliation claims require evidence that the plaintiff would not have suffered the adverse actions “but for” the unlawful retaliation.

Plaintiff's burden of establishing a materially adverse employment action is “less onerous in the retaliation context than in the anti-discrimination context.” Michael, 496 F.3d at 595–96 (citing Burlington N., 548 U.S. at 67–71). Unlike a Title VII discrimination claim, “the antiretaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.” Burlington N., 548 U.S. at 57. To establish the third element of the prima facie Title VII retaliation claim, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68 (internal quotation marks and citations omitted). In analyzing the significance of any given act of retaliation, “[c]ontext matters. . . . “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.” Id. at 82 (citing 2 EEOC 1998 Manual § 8, p. 8–14). “An act that would be immaterial in some situations is material in others.” Id. (citation omitted). “This more liberal definition permits actions not materially adverse for purposes of an anti-discrimination claim to qualify as such in the retaliation context.”

The Court then found that the plaintiff’s list of discriminatory events (which it found insufficient to support a Title VII discrimination claim) were sufficient to create an issue of fact as to whether he had been retaliated against for complaining about discrimination and harassment by management and his co-workers.

Facing heightened scrutiny, receiving frequent reprimands for breaking selectively enforced policies, being disciplined more harshly than similarly situated peers, and forced to attend a predetermination hearing based on unfounded allegations of wrongdoing might well have dissuaded a reasonable worker from making or supporting a charge of discrimination. There is a genuine issue of fact regarding whether or not Plaintiff was subject to materially adverse action, and whether Plaintiff’s protected activity (i.e., formal and informal complaints to human resources and the EEOC) was the cause of such action.

First  Amendment Claims.  The Court agreed that the plaintiff could not base a First Amendment retaliation claim on his filing his EEOC Charge.  To the extent that the claim is based on a complaint to the USDA about a co-worker’s activities, that could be protected conduct.  However, there was no evidence about his complaint to the USDA, that the employer was aware of it or that the employer retaliated against him because of it.

The concurring judge questioned whether the trial judge had erred in mis-analyzing the Title VII retaliation claim or had simply failed to notice the claim because the defendant employer had only moved for summary judgment on the discrimination and First Amendment claims.    As a result, she believed that the matter should have been remanded to the trial judge to examine the retaliation claim instead of analyzing it for him.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Driving an Emergency Vehicle May Not Be an Essential Job Function for a Firefighter or Fire Inspector

Last month, the Sixth Circuit reversed judgment for a city which had fired a firefighter after he lost vision in one eye – limiting his ability to drive -- without adequately considering reasonable accommodations. Rorrer v. City of Stow,  No. 13-3272 (6^th Cir. 2-26-14).  The Court found there to be a disputed issue of fact as to whether driving emergency vehicles was an essential function for a firefighter.  It also found the plaintiff’s proposed accommodations – including a transfer to a possible vacancy in the fire prevention bureau --  could be reasonable.   It also ordered that the case be reassigned to a different trial judge on remand because of the appearance of partiality.   Nonetheless, the Court affirmed dismissal of the §1983 First Amendment retaliation claim based on the plaintiff’s testimony in a union arbitration challenging disciplinary action taken against a co-worker in an unrelated dispute.   The Court concluded that “sworn testimony in a private proceeding is not sufficient to elevate speech of purely private content to a matter of public concern” which would be necessary in a First Amendment retaliation claim.

 According to the Court’s opinion, the plaintiff’s physician released him to return to work without restrictions following his eye surgery.  When he arrived at his fitness for duty examination, the visiting physician also cleared him to return to work, but noted that he should be extra careful when wearing a self-contained breathing apparatus and when driving emergency vehicles at high rates of speed.  However, when he attempted to return to work, the Fire Chief balked and insisted that the regular examining physician reconsider returning a monocular vision firefighter.  The regular physician agreed that a mistake had been made and, without personally examining him, declared the plaintiff “unfit” for duty.    He was ultimately fired.  The regular physician cited “fire regs” but could not identify any such regulations during his deposition or when questioned by the plaintiff. 
 

The City contended that NFPA 1582-9.1.3(10) required the plaintiff to operate emergency vehicles. “NFPA guideline 1582-9.12.3.1 states that monocular vision “compromises the [firefighter’s] ability to safely perform essential [J]ob [T]ask 10.”  The firefighter’s union, however, disputed that the NFPA guidelines had ever been adopted or implemented by the city or civil service commission.  The informal job description indicated that a firefighter may operate an emergency vehicle, as assigned.  In addition, the Fire Chief insisted, and the plaintiff admitted, that no firefighter could refuse to drive an emergency vehicle.  In contrast, the union asserted that driving was not an essential function because there would always be at least two other firefighters on duty who could drive instead of the plaintiff.  In any event, the plaintiff requested that he be accommodated by being relievedd of the duty to drive or to be transferred to the fire prevention bureau (where there was arguably a vacancy and is where firefighters were assigned for transitional duty).  His request was denied on the grounds his injury was not work related, there were no vacancies and that inspectors still had to be able to perform all essential firefighter duties.

 During the litigation, the trial court imposed a numerical witness limit on the plaintiff, but not the employer.  The court also refused to consider testimony by two other monocular vision firefighters in other departments. The court ultimately granted summary judgment for the city and the fire chief.  Among other things, it found driving emergency vehicles to be an essential function of the firefighter job based on the NFPA guidelines and the Chief’s opinion.
 

On appeal, the Sixth Circuit concluded that there was a genuine issue of material fact about whether driving an emergency vehicle was an essential job function.  “Determining whether a function is essential ‘is a question of fact that is typically not suitable for resolution on a motion for summary judgment’” when there is conflicting deposition testimony.  The employer’s opinion on essential job functions is not dispositive, even if there is a written job description.   Instead, an employer’s opinion is given consideration and weight, but not deference.  There was also disputed evidence about whether the City had ever adopted the NFPA guidelines.   The city’s physician gave conflicting explanations as to the basis for his opinion and only cited the NFPA after the City’s attorney conferred with him off the record during the deposition.  In contrast, there was evidence that forbidding the plaintiff from driving would have been minimally inconvenient for the fire department.  The job description listing driving as a conditional job requirement that “may” be necessary, but unlike other job duties, is not always required.

 In light of its finding that driving emergency vehicles might not be an essential function, the Court concluded that it may have been a reasonable accommodation for the employer to relieve the plaintiff of that duty.  Moreover, there was a disputed issue of fact as to whether there was a vacancy in the fire prevention bureau.  Interestingly, the Court rejected the city’s argument that fire inspectors were similarly required to be able to drive emergency vehicles:

The City argues that, even if a permanent position existed in the FPB, Rorrer’s transfer request was unreasonable because “the position of ‘Fire Inspector’ does not exist; it is merely a firefighter assigned to a particular job duty.” See Kleiber, 485 F.3d at 870 (“[T]he plaintiff generally must identify the specific job he seeks and demonstrate that he is qualified for that position.”). This argument lacks merit. The position in the FPB was that of an inspector, designed to prevent fires, not fight them. The City does not dispute that Rorrer had the “expertise, training, and certification” to fulfill these job duties. Rather, the City argues that Rorrer was unqualified because the Department’s job description of someone functioning as a fire inspector is “firefighter,” which includes the task of driving an apparatus during an emergency. The City’s unwillingness to modify a job description to accommodate Rorrer, even though that modification would not have  required any change in job duties, falls short of the City’s obligation “to locate a suitable position” for Rorrer after he identified a vacancy and requested a transfer. See Kleiber, 485 F.3d at 870.

 . . . .

If placed in the FPB, Rorrer would “need” to perform the function of operating a fire apparatus under emergency lights only because the City’s policy said so. There is no indication on the record that a fire inspector ever actually performed this function. Had the City engaged in a good faith effort to accommodate Rorrer, the record suggests that Rorrer could have served in the FPB without any modification of the actual job duties that position entails.

The Court also rejected the city’s argument that eliminating the driving requirement for the plaintiff would have created an undue burden.  It also found that there was a disputed issue as to whether the city had engaged in a good faith interactive process to conduct an individualized inquiry to find a reasonable accommodation after the plaintiff proposed two accommodations.   In fact, there was evidence that the city “refused to discuss” even superficially a potential transfer of the plaintiff to the fire prevention bureau.

The Court found no abuse of discretion in precluding evidence about other monocular firefighters.   Nonetheless, the Court ordered the case to be reassigned to a different judge on remand because its discovery orders and remarks about the plaintiff “compromise the appearance of justice.”   The Court agreed with the plaintiff “that the district court’s handling of this case was questionable and that reassignment is advisable to preserve “the appearance of justice.”

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Divided Ohio Supreme Court Addresses Unfair Competition Battle Brought Against Former Employees

Last week, a divided Ohio Supreme Court issued a decision in a well-publicized case initially brought by a large non-profit employer against a small company started by former employees.  American Chemical Society. v. Leadscope, Inc., Slip Opinion No. 2012-Ohio-4193.   The initial lawsuit was brought in 2002 and involved claims for breach of employment agreements, misappropriation of trade secrets, unfair competition, breach of fiduciary duty and the duty of loyalty, and conversion, etc.    The defendant company brought counter-claims for unfair competition, tortious interference and defamation on the grounds that the lawsuit was unfounded and brought solely to drive it out of business and because of statements made to the plaintiff employer’s employees and the media.  After an eight-week trial in 2008, the jury awarded the defendant company $26.5M on its claims for unfair competition and defamation. The Franklin County Court of Appeals affirmed the verdict.   The Supreme Court held that before an unfair competition claim can be based on the filing of a lawsuit, the lawsuit must be objectively baseless – which is a higher standard than the lack of good faith.  Although the plaintiff’s claims survived a directed verdict motion, the Court’s majority nonetheless found that the plaintiff failed to produce any evidence to support its claims and, thus, the claims were objectively baseless.   More surprisingly, a majority of the Court (almost all of the justices) supported the dismissal of the defamation claim even though the jury had found that the plaintiff had abused its privilege to report the status of the litigation.  The Court found the statements in context only repeated the company’s position and that the company could not be held liable for the statements of its attorney unless it affirmatively ratified them.

With respect to the unfair competition claim, the trial court had borrowed the standard from the law of malicious prosecution and instructed the jury that they could find for the defendant company if the plaintiff’s lawsuit was not brought in good faith, but was brought with the intention of injuring the defendant.   The Supreme Court held that this standard was too low (in light of a citizen’s First Amendment right to petition government for redress) and instead, adopted the following standard:

To successfully establish an unfair competition claim based upon legal action, a party must show that the legal action is objectively baseless and that the opposing party had the subjective intent to injure the party’s ability to be competitive.

Several of the dissenting/concurring justices would have remanded the case for another trial under the new standard. (After all, the plaintiff had survived a directed verdict motion, which indicates that the trial court found some objective basis to exist).   However, the majority concluded that the plaintiff had failed to introduce any evidence to support its claims and, therefore, a new trial – more than 10 years after the facts at issue – was unnecessary and burdensome.    In short, the Court found the plaintiff company’s concerns that the defendant employees had misappropriated a software program had not been proven when the defendants’ competing program was written in a different language and, according to expert opinions, did not share any code.  That the competing software accomplished the same objective was not actionable.  (The Court’s discussion of the plaintiff company’s evidentiary objections was interesting in that the plaintiff company objected to the introduction of evidence that may have actually supported its decision to bring the lawsuit).

The defamation claim was based on a memorandum written to the plaintiff’s employees about the lawsuit and directing them not to comment on it.   The jury found that the plaintiff had abused its qualified privilege by indicating that the defendant employees had misappropriated intellectual property.  The Court found that, in context, the memorandum was nothing than the typical directive for employees to not comment on a lawsuit (which, coincidentally, the NLRB has indicated would be inappropriate).  The syllabus holding on this is stated as follows:

In determining whether a statement is defamatory as a matter of law, a court must review the totality of the circumstances and read the statement in the context of the entire publication to determine whether a reasonable reader would interpret it as defamatory.

The second allegedly defamation statement was contained in a news article about the litigation and quoted the plaintiff’s attorney discussing the claims made.  Again, the jury found the attorney to be speaking as an agent of the plaintiff and that the statements exceeded the applicable qualified privilege.  Nonetheless, the Court again found the statements were appropriate in context.  More importantly, the Court found that the plaintiff client could not be held vicariously liable for statements made by its attorney unless it authorized or ratified them.

 The Court was unusually divided on this case.  Three justices joined the majority opinion.   One justice would have affirmed the trial court on all claims, but joined the majority to affirm the unfair competition judgment.   Two other justices concurred with all of the syllabus paragraphs (i.e., the rules of law) and the reversal of the defamation claim, but dissented on the failure to remand the unfair competition claim.   Finally, one justice agreed with the higher standard for unfair competition, but would have affirmed the defamation claim and remanded the unfair competition claim.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Denies Qualified Immunity for Allegedly Discriminating Against Married Employees

This morning, the Sixth Circuit affirmed the denial of qualified immunity to employees of the Ohio Department of Youth Services in connection with alleged discrimination against two married employees in violation of their First Amendment right to associate with each other. Gasper v. Ohio Dep’t of Youth Services, No. 09-3829 (6th Cir. 8/5/2011). A new chain of command was created when the wife was promoted so that she would not be responsible for supervising her husband. However, the union and other employees continued to object to the appearance of impropriety. The husband had been threatened with termination for an unrelated incident (involving inadvertently bringing a gun onto state property) unless he agreed to transfer to a different facility. It was only through a union arbitration decision that he ultimately kept his job. The wife was then demoted and transferred despite her stellar work record and the poor work records of her replacements.

The married plaintiffs brought an action under 42 U.S.C. §1983 alleging violation of their First Amendment right which protects their freedom of association. The district court granted summary judgment on the claim for damages against the state agencies and against the individual defendants in their official capacities because of their Eleventh Amendment immunity. The district court also granted summary judgment on all claims against two individual defendants in their individual capacities, but denied qualified immunity to the four remaining individual defendants based on the treatment of the husband and wife’s demotion and transfer. This appeal followed.

“Government officials who perform discretionary functions are generally protected from liability for civil damages as long as their conduct does not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” The Sixth Circuit follows a three-step analysis to analyze qualified immunity:

First, we evaluate whether the facts demonstrate that a constitutional violation has occurred. . . . Second, we determine whether the violation involved a clearly-established constitutional right of which a reasonable person would have known. Id. Third, we consider “whether the plaintiff has offered sufficient evidence ‘to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.’”
. . . .
A plaintiff alleging First Amendment retaliation under 42 U.S.C. § 1983 must prove that (1) she “engaged in protected conduct; (2) the defendants took an adverse action that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse action was taken at least in part because of the exercise of the protected conduct.

The Court’s analysis is dependent on context. With respect to First Amendment marriage discrimination claims, “cases based on a challenge to a rule or decision based on marriage per se, such as an anti-nepotism policy, are different from cases challenging purported acts of retaliation that affect the right of marriage” because policies are subject only to a rational basis test, whereas the lack of a legitimate government policy to justify government interference in a marital relationship subjects the government interference to a higher level of scrutiny.

In this case, the husband was able to establish a material factual dispute regarding causation because – despite his culpability in a dischargeable offense – the defendants had been willing to save his job if he would transfer to another location – away from his wife. The court was also influenced that not every employee who engaged in similar misconduct was terminated; that one defendant accurately predicted that his wife would be transferred if he were reinstated by arbitration, that the defendants rejected the unpaid suspension recommended by the mediator and that every individual defendant had expressed dissatisfaction with the plaintiffs working together in the same facility even though the husband did not report to his wife and “the couple was not violating any [agency] anti-nepotism policy.”

The wife was able to establish a material factual dispute regarding causation because she received her first below-target performance evaluation two months after her husband was reinstated. The only “fault” attributed to her was an incident a couple of days earlier by subordinates which could not be ascribed to her. This evaluation was subsequently revised upward immediately before her transfer to a distant location that prevented her from living with her husband during the week. And, she was replaced by individuals with serious performance deficiencies.

As for the qualified immunity, the Court found the right of employees to marry was clearly established and that it had been similarly clearly established that an employee could not be terminated simply because the decisionmaker did not like the person’s spouse. Therefore, the individual defendants were not entitled to qualified immunity and the claims should proceed to trial on the merits.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Union Fundraising is Not Constitutionally Protected Speech

This morning, the Sixth Circuit reversed a trial court which had found that disciplinary action taken against a fire union for fundraising activities was unlawful retaliation. Doherty v. City of Maryville, No. 09-5217. In that case, the IAFF Local Union had signed a contract with a telemarketing firm to sell concert tickets to raise money for union activities. Thinking the calls were coming from the City, several citizens complained about rudeness and threats. The City met with the union officials who signed the contract and warned them that they would be fired if the City received any more complaints. The City did not ask the union to cancel the fundraiser. The union cancelled the telemarketing contract and then renewed the contract, but with a revised script. When the City received additional complaints, it put a letter of reprimand in the union officer’s file. After the union and the officer filed suit for violation of First Amendment rights, the trial court denied the City’s motions for summary judgment and judgment as a matter of law and the jury found against the City. On appeal, the Sixth Circuit concluded the trial court erred in examining the totality of the circumstances (i.e., the content of the telemarketing calls and the intended uses for the funds). Instead, the only conduct at issue was the signing of the telemarketing contract and that conduct was commercial, not protected political, speech. “As a matter of law, the conduct in question — i.e., the act of contracting with a third party to make telemarketing calls — did not touch on a matter of public concern.”

“When a plaintiff is a public employee who is claiming retaliation by his employer (the government) for his speech or his associations, his speech or association is protected only if (1) it touches on a matter of public concern and (2) there is no overriding state interest that would be undermined by the employee’s speech or association.”

The only activity that is relevant in this case is the Plaintiffs’ act of contracting with a third-party telemarketing organization to make fundraising phone calls. In their summary judgment pleadings, the Plaintiffs conceded that they allege retaliation by the City solely because of their involvement with the phone calls. There is absolutely no evidence in the record that the Plaintiffs were targeted because of their membership in the union or because of the union’s other community activities. Rather, all the evidence shows that they were targeted because they were in charge of this particular fundraising activity.
. . .
This was a business transaction, and the conduct had a commercial focus. Furthermore, the subject of the contract, making phone calls, was also commercial in nature. Doherty testified at trial that the purpose of the phone calls was to sell a product—tickets to a concert. The act of signing a business contract does not fall within traditional understandings of matters constituting a public concern

Although courts “evaluate several factors to determine whether speech is a matter of public concern, including “the focus of the speech; the point of the speech in question; to what purpose the employee spoke; the intent of the speech; or the communicative purpose of the speaker,” the Court found the trial court erred:

by examining a much broader array of activity; it looked at everything that the union did in the community, as well as the contract with FireCo and the phone calls that FireCo made. The district court further erred by suggesting that the Plaintiffs may have been disciplined for the positive aspects of the phone calls (as opposed to the threatening and misleading aspects). Local 4053’s activity, other than the act of contracting with FireCo, is irrelevant to the retaliation claim at hand.

. . .

The Plaintiffs argue that because the phone calls aimed to raise money for the union’s broad activities, some of which are matters of public concern, the act of contracting with a telemarketer to make those phone calls is also a matter of public concern. Even if we were to ignore the attenuated nature of the link between the contract and potential issues of public concern, the fact that the purpose of the FireCo contract was to raise money for union activities does not change the nature of the contract itself. “[A]n employee’s speech, activity, or association, merely because it is union related, does not touch on a matter of public concern as a matter of law.” . . . Similarly, FireCo’s passing references during the calls to some of the union’s protected activities do not transform the nature of the calls (much less the contract to make the calls). We have held that “the proper inquiry is not what might be incidentally conveyed by the speech, and that passing or fleeting references to an arguably public matter do not elevate the speech to a matter of public concern where the focus or point of the speech advances only a private interest.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: ADA Applies to Teachers in Church Sponsored Schools.

[Editor's Note: The Supreme Court heard oral arguments on this case on October 5, 2011].

This morning, the Sixth Circuit reversed a judgment which had been entered in favor of a Lutheran church and its elementary school on an ADA discrimination claim brought by a former teacher. EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, No. 09-1134 (6th Cir. 3/10/10). The District Court had granted the School summary judgment on the retaliation claim on the grounds that the teacher fell within the ministerial exception to the ADA and he would not inquire into why she had been fired. The Sixth Circuit reversed on the grounds that the primary duties of teacher showed that she was not a ministerial employee.

According to the Court’s opinion, the teacher spent about 45 minutes of each class day in religious activities with her students. After she developed narcolepsy and took an approximately 7-month leave of absence, the School refused to reinstate her in part because of a concern for the safety of her students and because it had already made arrangements with a substitute teacher. Indeed, it decided on its own that she was physically unable to return and offered to pay a portion of her medical insurance for the next ten months if she resigned even though her doctor had released her to return to work without restrictions. Because she appeared for work the day after her physician released her and made clear that she would sue the School after she was told that she would likely be fired, the School indicated that she would be terminated for being disruptive and insubordinate and that she had damaged her relationship beyond repair by threatening to sue the School. When her attorney explained how the School’s actions violated the ADA and that she would file a Charge with the EEOC if the matter were not resolved, the School fired her. Two years later, the EEOC filed suit on her behalf against the School.

The ministerial exception permits “preference in employment to individuals of a particular religion” and to “require that all applicants and employees conform to the religious tenants of such organization.” 42 U.S.C. § 12113(d). However, although based on the First Amendment, this exception is very narrow and is not meant to obviate the ADA. According to legislative history, “However, a religious organization may not discriminate against an individual who satisfies the permitted religious criteria because that individual is disabled. The religious entity, in other words, is required to consider qualified individuals with disabilities who satisfy the permitted religious criteria on an equal basis with qualified individuals without disabilities who similarly satisfy the religious criteria.”

“The question of whether a teacher at a sectarian school classifies as a ministerial employee is one of first impression for this Court. However, the overwhelming majority of courts that have considered the issue have held that parochial school teachers such as Perich, who teach primarily secular subjects, do not classify as ministerial employees for purposes of the exception.” In general, “an employee is considered a minister if “the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” In this case, the teacher’s “employment duties were identical when she was a contract teacher and a “called” teacher and that she taught math, language arts, social studies, science, gym, art, and music using secular textbooks.” Her duties were also virtually identical to those of the teachers who were not entitled ministers. That she teaches at a religious school does not necessarily convert a teacher to a ministerial employee. That the School “has a generally religious character–as do all religious schools by definition–and characterizes its staff members as “fine Christian role models” does not transform [her] primary responsibilities in the classroom into religious activities.”

Similarly, it did not matter that she had specialized religious training and a religious title. “The governing primary duties analysis requires a court to objectively examine an employee’s actual job function, not her title, in determining whether she is properly classified as a minister. In this case, it is clear from the record that Perich’s primary duties were secular, not only because she spent the overwhelming majority of her day teaching secular subjects using secular textbooks, but also because nothing in the record indicates that the Lutheran church relied on Perich as the primary means to indoctrinate its faithful into its theology.”

While the Court did not want to intrude on church theology, it noted that the School’s employee manual included an EEO policy and that the focus of the court would be on the plaintiff’s disability and whether the School violated the ADA, not church theology (except as whether church theology was a genuine defense). In this case, however, the School did not identify church doctrine as a reason for firing the teacher in her termination letter.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court: State Need Only Rational Basis for Refusing to Subsidize Union Political Speech Through Payroll Deductions.

Yesterday, the United States Supreme Court reversed the Ninth Circuit and upheld an Idaho state law which precluded payroll deductions by state and local governments to support political speech and political activities by unions. (Payroll deductions for regular union wages were permitted). The unions sued, arguing that the prohibition violated their First Amendment rights. The Supreme Court noted that the state law did not prohibit the unions from engaging in political activities or speech; it merely refused to promote those activities through payroll deductions. Therefore, only a rational basis analysis applied; not strict scrutiny. Idaho's interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics was sufficiently rationale to support the legislative ban. Ysursa v. Pocatello Education Ass’n, No. 07-869.

As described by the Court, “[u]nder Idaho law, a public employee may elect to have a portion of his wages deducted by his employer and remitted to his union to pay union dues. He may not, however, choose to have an amount deducted and remitted to the union's political action committee, because Idaho law prohibits payroll deductions for political activities. In particular, “ Idaho's Right to Work Act declares that the ‘right to work shall not be infringed or restricted in any way based on membership in, affiliation with, or financial support of a labor organization or on refusal to join, affiliate with, or financially or otherwise support a labor organization.’ . . . “The First Amendment prohibits government from "abridging the freedom of speech"; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression. Idaho's law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities. Such a decision is reasonable in light of the State's interest in avoiding the appearance that carrying out the public's business is tainted by partisan political activity. That interest extends to government at the local as well as state level, and nothing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions for political activities.”

“Restrictions on speech based on its content are ‘presumptively invalid’ and subject to strict scrutiny . . . The First Amendment, however, protects the right to be free from government abridgment of speech. While in some contexts the government must accommodate expression, it is not required to assist others in funding the expression of particular ideas, including political ones. ‘[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.’. . . Given that the State has not infringed the unions' First Amendment rights, the State need only demonstrate a rational basis to justify the ban on political payroll deductions. The prohibition is not ‘aim[ed] at the suppression of dangerous ideas,’ but is instead justified by the State's interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics. We have previously recognized such a purpose in upholding limitations on public employee political activities.”

“The question remains whether the ban is valid at the local level. The unions abandoned their challenge to the restriction at the state level, but contend that strict scrutiny is still warranted when the ban is applied to local government employers. In that context, the unions argue, the State is no longer declining to facilitate speech through its own payroll system, but is obstructing speech in the local governments' payroll systems. We find that distinction unpersuasive, and hold that the same deferential review applies whether the prohibition on payroll deductions for political speech is directed at state or local governmental entities. ‘Political subdivisions of States--counties, cities, or whatever--never were and never have been considered as sovereign entities.’ They are instead ‘subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.’ State political subdivisions are ‘merely ... department[s] of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit. Here, the Idaho Legislature has elected to withhold from all public employers the power to provide payroll deductions for political activities.”

“The State's legislative action is of course subject to First Amendment and other constitutional scrutiny whether that action is applicable at the state level, the local level, both, or some subpart of either. But we are aware of no case suggesting that a different analysis applies under the First Amendment depending on the level of government affected, and the unions have cited none. The ban on political payroll deductions furthers Idaho's interest in separating the operation of government from partisan politics. That interest extends to all public employers at whatever level of government.”

Insomniacs can read the full opinion at http://www.supremecourtus.gov/opinions/08pdf/07-869.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Sixth Circuit: First Amendment Protects Public Employee’s Interview with Reporter About Boss’s Alleged Sexual Harassment of Co-Worker

On Monday, the Sixth Circuit reversed summary judgment in favor of an employer on the employee’s allegations that she had been discharged for exercising her First Amendment rights to comment on matters of public concern. Hughes v. Region VII Area Agency on Aging, Nos. 07-1570/1647 (9/8/08). In that case, the plaintiff was fired after she was sought out and interviewed by a newspaper reporter about a sexual harassment lawsuit which had been filed against her boss by a co-worker, about her belief that another employee was fired for advocating an independent investigation and about other arguably inappropriate conduct. The plaintiff also objected to disciplinary action and an unpaid suspension imposed against her for discussing with a colleague the affect of possible budget cuts at the agency. Following her termination, she filed suit under § 1983.

First, the court found that the agency was not a private non-profit, but was, in fact, a government agency because of its corporate structure, funding and federal statutes. In other words, the agency was subject to § 1983 because it acted “under color of state law due to the pervasive entwinement of governmental entities in the management and control of” the agency. The Supreme Court previously “noted that ‘a challenged activity may be state action . . . when it is ‘entwined with governmental policies’ or when government is ‘entwined in [its] management or control.’” However, the Supreme Court has also stated that “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974). Nonetheless, in this case, the extensive statutory and regulatory provisions “show that government is deeply “‘entwined in [the] management or control’” of the agency employer: government entities are the sole members of [the agency] and they appoint eleven members of [the agency’s] board of directors, with their chosen representatives appointing the final member of the board. Furthermore, virtually every act that [the agency] performs must receive approval from a state agency, and the very existence of [the agency employer] as a “designated” area agency on aging depends upon [the agency] being “under the supervision or direction of the state agency.” MICH. COMP. LAWS § 400.589(1) (emphasis added). The entwinement of government in the management and control of [the defendant agency] is thus a matter of statutory policy, in addition to the fact that the membership of [the defendant agency] consists entirely of governmental entities.”

Once the court determined that the agency employer was required to comply with the federal constitution, it examined whether it violated the employee’s First Amendment rights. “[I]n determining whether a public employer has violated the First Amendment by firing a public employee for engaging in speech, the Supreme Court has instructed courts to engage” in a multiple-step inquiry. First, a court “must ascertain whether the relevant speech addressed a matter of public concern.” Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003). In conducting this inquiry, the court “must assess ‘the content, form, and context of a given statement, as revealed by the whole record.” In this case, the court had no difficulty in finding that comments about a sexual harassment lawsuit against the agency’s Executive Director and his alleged retaliation against a complaining employee constituted a matter of public concern. “Matters of public concern include speech that ‘relat[es] to any matter of political, social, or other concern to the community.’ . . . In Connick, the Supreme Court offered examples of speech that would involve matters of public concern, such as statements “inform[ing] the public that [a governmental entity] was not discharging its governmental responsibilities” or statements “seek[ing] to bring to light actual or potential wrongdoing or breach of public trust on the part of” government employees. . . . . The Court in Connick also described an individual’s “right to protest racial discrimination” as “a matter inherently of public concern.” . . . Likewise, we have stated that “it is well-settled that allegations of sexual harassment, like allegations of racial harassment, are matters of public concern.” . . . Finally, in Matulin v. Village of Lodi, 862 F.2d 609, 613 (6th Cir. 1988), we observed that our “finding of public concern is here strengthened by the fact that the plaintiff did not solicit the attention of the media, but simply responded to questions regarding an existing controversy.” In Matulin, we described the Third Circuit’s decision in Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988), as holding “that statements relating to charges of discrimination leveled at public employers and reported upon by newspapers clearly involved matters of public concern.”

The court did not reach a conclusion about whether the plaintiff’s comments to a co-worker about budget cuts necessarily constituted a protected matter of public concern. On one hand, her comments about trying to influence the political budget process could be constitutionally protected. On the other hand, comments adversely affecting employee morale by highlighting possible layoffs could be the subject of disciplinary action. The Supreme Court has found that even when employee speech “touches upon matters of public concern” to a limited extent, the employee’s discharge “did not offend the First Amendment” because that “limited First Amendment interest . . . d[id] not require that [the employer] tolerate action which [it] reasonably believed would disrupt the office . . . and destroy close working relationships.” Therefore, the trial court was instructed to reexamine this issue upon remand.

In the second step of the inquiry, the court considered “whether the employee’s expressions were made ‘pursuant to his or her official responsibilities” or whether the “statements or complaints . . . [were] made outside the duties of employment . . . . In Garcetti, the Supreme Court held that “the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities” and thus concluded that the plaintiff’s First Amendment retaliation claim failed given that “the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties.’” However, in this case, the agency never argued that the plaintiff made any of the challenged statements in connection with her official duties.

The third step of the inquiry requires to the court to “balance the interests of the public employee, ‘as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” With respect to the employee’s comments to her co-worker about budget cuts, the Court instructed the trial court to “balance the interests of the public employee, ‘as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” Interestingly, it did not discuss any balancing test in connection with the sexual harassment discussion.

Finally, the multiple-step inquiry requires the court to “determine whether the employee’s speech was a substantial or motivating factor in the employer’s decision to take the adverse employment action against the employee.” In this case, the actual motivation of the employer was in question because it failed to conduct even a cursory investigation before imposing the disciplinary action. “[T]he district court should analyze as a separate retaliation claim whether [the plaintiff’s] comments to her co-workers in June 2004 were a substantial or motivating factor in imposing the reprimand and two-day unpaid suspension; the district court should also then determine whether, under Waters, Defendants conducted a reasonable investigation into the nature of [the plaintiff’s] alleged statements.

Insomniacs can read this decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0341p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.