At the end of August, the federal Sixth and Third Circuit Courts of Appeal both addressed the same issue: whether gay and lesbian employees could pursue religion discrimination claims under Title VII against employers who discriminated against them on account of their sexual orientation. In both cases, the Courts refused to permit the employees to pursue religion discrimination claims under Title VII on the grounds that they were not being discriminated against because of their religious or other voluntary beliefs, but rather, because of who they were. However, in both cases, the Court found possible alternative theories of relief for the plaintiffs. In the Sixth Circuit, the Court found the plaintiffs could maintain a constitutional First Amendment claim against the non-profit employer on account of legislative appropriations to that specific agency. Pedreira v. Kentucky Baptists Homes for Children, Inc., No. 08-5583 (6th Cir. 8/31/09). In the Third Circuit, the court found the plaintiff could pursue a sex-stereotyping claim on the grounds that he was being discriminated against for not being a stereotypical macho, blue-collar man. Prowel v. Wise Business Forms, Inc., No. 07-3997 (3rd Cir. 8/28/09).
Title VII Claims
The Pedreira plaintiff was terminated from her position with the non-profit children’s home “because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values.” After her termination, the employer announced a policy of refusing to employ any homosexuals. She brought a claim under the Kentucky Civil Rights Act, which was analyzed as a Title VII claim. The Court, however, found that she failed to state a claim for relief: “Pedreira does not allege that her sexual orientation is premised on her religious beliefs or lack thereof, nor does she state whether she accepts or rejects Baptist beliefs. While there may be factual situations in which an employer equates an employee’s sexuality with her religious beliefs or lack thereof, in this case, Pedreira has “failed to state a claim upon which relief could be granted.” See also Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (Title VII does not encompass discrimination on account of sexual orientation). In short, the plaintiff did not allege that her sexual orientation was a voluntary decision akin to religious beliefs and practices. Another plaintiff brought a failure to hire claim on the grounds that she did not apply for a social worker opening because of the employer’s homophobic policy. The court surprisingly dismissed that claim on the grounds it was speculative (in that she never applied for a job) instead of on the grounds that such discrimination is not actionable under either Title VII or the KCRA. Thus, the possibility remains that the Sixth Circuit could recognize a case of sexual orientation discrimination under Title VII under a different factual situation.
The Prowell plaintiff was involuntarily laid off after he complained about workplace harassment on account of his sexual orientation. He filed suit, claiming that he was unlawfully discriminated against in violation of Title VII on account of his sex and religion. Like the Pedreira case, the Third Circuit dismissed the religion discrimination claim because his testimony showed that he was discriminated against on account of his sexual orientation, not his beliefs or the religious beliefs of others. Like the Sixth Circuit, the Third Circuit had previously determined that Title VII did not encompass discrimination on account of sexual orientation. Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir.2001).
However, the Third Circuit found that the Prowell plaintiff could pursue a sex stereotyping claim to the same extent that a woman could. The plaintiff described himself as an “effeminate man” and claimed he did not fit in with his other male co-workers because he did not conform to gender stereotypes. Because the facts of the harassment showed that the plaintiff had been harassed about his non-macho mannerisms and lifestyle even before his sexual orientation became public knowledge, he could show that his discrimination was related to the fact that he did not conform to societal stereotypes about how a “real” man is supposed to act. Title VII has for some years now prohibited discrimination against women who did not fit societal stereotypes of “ladies.”
First Amendment Claims
In Pedreira, the plaintiffs also brought a taxpayer suit challenging state support of a non-profit with a religious mission on the grounds that it violated the Establishment Clause of the First Amendment. “In their amended complaint, they refer to the Kentucky statutes authorizing the funding of services such as KBHC. However, nowhere in the record before the district court did the plaintiffs explain what the nexus is between their suit and a federal legislative action. The district court found that the plaintiffs’ allegations were more akin to those in Hein, which raised a general Establishment Clause challenge to federal agencies’ use of federal money to promote the President’s faith-based initiatives.” In the end, the Court determined that the plaintiffs lacked standing as federal taxpayers, but not as state taxpayers.
“As with federal taxpayer standing, the plaintiffs must demonstrate “a good-faith pocketbook” injury to demonstrate state taxpayer standing . . . . The plaintiffs point to the alleged $100 million received by KBHC from Kentucky as the requisite “pocketbook” injury . . . . the Kentucky legislature also appropriated sums of money specifically to KBHC. 2005 Ky. Laws Ch. 173 (HB 267) (H)(10)(5), available at http://www.lrc.ky.gov/record/05RS/HB267.htm. Unlike in the federal taxpayer analysis,the plaintiffs have alleged a “concrete and particularized” injury.”
In addition, “the plaintiffs have sufficiently demonstrated a link between the challenged legislative actions and the alleged constitutional violations, namely that Kentucky’s statutory funding for neglected children in private childcare facilities knowingly and impermissibly funds a religious organization. As discussed above, the plaintiffs have pointed to Kentucky statutory authority, legislative citations acknowledging KBHC’s participation, and specific legislative appropriations to KBHC. Through these specifications, the plaintiffs have demonstrated a nexus between Kentucky and its allegedly impermissible funding of a pervasively sectarian institution.”
Insomniacs can read the full court decisions at http://www.ca6.uscourts.gov/opinions.pdf/09a0316p-06.pdf and http://www.ca3.uscourts.gov/opinarch/073997p.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.
Showing posts with label color of state law. Show all posts
Showing posts with label color of state law. Show all posts
Thursday, September 10, 2009
Wednesday, September 10, 2008
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.
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.
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