Sixth Circuit Rejects Two Qualified Immunity Defenses Raised in Southern District of Ohio

As a general rule, government employees are immune under federal law from civil damages for acts conducted in the course of their employment because of a qualified immunity. However, that qualified immunity can be lost if the government official or employee engages in conduct which violates clearly established law. Today, the Sixth Circuit released two opinions which affirmed the denial of qualified immunity to two different employers from Southern Ohio because their alleged actions violated clearly established federal law. In the first decision, the employer fired a police officer after his wife distributed letters which were critical of city government. Sigler v. City of Englewood, No. 09-4223 (6^th Cir. 5/20/11). In the second decision, the Court rejected qualified immunity for school officials who failed to act upon student complaints of sexual harassment by fellow students and found that there was no collateral estoppel or res judicata from the disciplinary appeal hearings held to review the five-day suspension of the complaining female student. Evans v. Board of Education of Southwestern City School District, No. 10-4011 (5/23/11).

According to the Sigler opinion, the wife of the plaintiff police officer distributed a letter which was critical of his city government employer. He says that he never saw or heard about the letter until after she distributed it, but he did not inform his employer about the letter even after he found out. An internal affairs investigation was conducted. When initially asked about it, the plaintiff says he asked the investigating officer for a copy of it, but the officer said the plaintiff denied ever having read it. The plaintiff later admitted to having read it after his wife mailed it. The officer recommended that the plaintiff be terminated because he falsely denied having read the letter, was aware of who circulated the letter and never informed his employer about the letter, thus making him a participant. The officer contended that this violated departmental rules against dishonesty and withholding information. The City Manager accepted and acted upon the recommendation. The plaintiff then filed suit contending that he was terminated in retaliation for his marriage to the woman who distributed the letter pursuant to her First Amendment rights.

The district court denied the city's motion for qualified immunity on the grounds that retaliating against an employee because of the actions of the spouse clearly violates established First Amendment law. The Sixth Circuit affirmed and rejected the City's attempt to get the City Manager dismissed as a defendant:

Defendants finally argue that Sigler's alleged constitutional right should be construed more narrowly in determining whether it is "clearly established law." Defendants characterize the right as "whether a reasonable officer or official, standing in place of City Manager Smith or Chief Brownfield, would conclude that his actions violated Keith Sigler's First Amendment intimate association rights when Keith Sigler was terminated for violating the [City's] lawful rules and regulations." Phrasing it this way turns the qualified-immunity analysis upside down. When deciding whether a constitutional right is "clearly established law," one assumes that the right the plaintiff invokes was actually violated. Qualified immunity then excuses that violation if the right was not "clearly established law" such that the defendant should have known of it. The right Sigler invokes is the right not to be terminated in retaliation for his marital association. Assuming that Sigler was so retaliated against, defendants are only entitled to qualified immunity if it was not clearly established that such retaliation is unconstitutional. Defendants' characterization assumes away any retaliatory motive, which is Sigler's whole complaint, and instead assumes as true their purported motive for Sigler's termination. The court does not decide qualified immunity in so backwards a way.

The Court of Appeals also rejected the argument that there was not enough evidence of a factual dispute to submit the case to a jury:

The district court also implicitly held that the defendants might not be able to prove that they would have terminated Sigler even if he had not been married to Susan. The court dismissed the defendants' only evidence on this point—Smith's declaration that he would still have terminated Sigler—by stating that "[t]his, of course, is mere supposition." While abbreviated, both determinations indicate that the district court concluded that there was enough in the record to get to the jury on the questions of whether the marriage caused the termination and whether Sigler would not have been terminated if, other things being the same, he had not been married to Susan. For purposes of this interlocutory appeal, we must make the same assumptions. The alternative would be to read into the district court's holding a legal determination that Smith could be liable regardless of the extent to which Sigler's being married caused the termination. It is hard to read the court's analysis that way. We therefore lack jurisdiction to consider Smith's arguments to the extent that they challenge the factual assumptions of the district court regarding causation.

However, the Court agreed that there was insufficient evidence that the Chief of Police was sufficiently involved in the termination decision merely because he authorized the internal investigation and was aware of the City Manager's planned conduct.

In Evans, the female students complained repeatedly that they were being sexually harassed by two male students. However, no action was taken by the School. Among other things, there was an incident in the back of a school bus which put one of the plaintiffs in tears, which got the attention of a teacher, who sent the student to the Principal's office. After taking her statement, the Principal then suspended both her and the male student for five days, and called the police about the male student. The female student appealed the suspension, which was upheld because there was insufficient evidence that she resisted his advances. The following year, additional incidents occurred with another male student and the female student was repeatedly teased for having loose morals.

The School argued that the Principal was entitled to qualified immunity because collateral estoppels and res judicata attached to the appeals hearing of the female student's suspension and precluded her from later suing under § 1983 because of those incidents. However, the District Court and the Court of Appeals rejected that argument because the school appeal hearing did not address the same legal issue, could not consider the same relief and did not consider the broader course of conduct at issue in the § 1983 action (which covered the span of a few years).

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.

Court Rejects Public Policy Wrongful Discharge Claim for Lack of Clarity About Employer’s Alleged Legal Violation

Last week, the Ohio Court of Appeals affirmed the dismissal of a wrongful discharge claim brought by a terminated paramedic who alleged that he was fired for opposing the mistreatment of a patient in violation of Ohio public policy. Strodtbeck v. Lake Hosp. Sys., Inc., 2011-Ohio-2327. He questioned the medical treatment of a patient and took a picture of the alleged mistreatment with his cell phone camera and later showed the picture to the nurse manager and human resources while sharing his concerns. The employer chose to focus on his failure to obtain written consent from the patient before taking the picture instead of his complaint and terminated his employment. The Court found that the plaintiff had failed to identify any clear public policy, statute or other law which applied to his actions or which the hospital violated in terminating his employment. Thus, he had failed to satisfy the "clarity" element of a claim for wrongful discharge in violation of public policy.

In moving for summary judgment, the hospital had pointed out that the plaintiff did not have explicit permission from management to take the picture, failed to obtain written consent from the patient (as required by HIPAA practices), used his personal cell phone during working hours and failed to use the hospital's Polaroid camera in the ER to document his concerns. More importantly, the plaintiff failed to identify any specific public policy which the hospital violated in terminating his employment. Among other things, he failed to identify any required standard of medical care that would cover the amount of tape used to attach a catheter to a patient's leg or reporting possible patient abuse or maltreatment in a hospital setting.

The plaintiff argued that his situation was analogous to other situations where courts have found violations of public policy. However, the court refused to accept analogous situation as sufficient to satisfy the "clarity" element of a public policy wrongful discharge claim. Accordingly, the Court rejected the plaintiff's attempt to analogize his situation to one where an employee is fired for consulting with an attorney. Similarly, the court rejected the argument that his situation was analogous to firing an employee for cooperating with a criminal investigation of the employer because there was never any criminal investigation in this case and the plaintiff never alleged that the alleged mistreatment of the patient was criminal. Likewise, the plaintiff could not analogize to a situation where the employee was fired to testifying against the employer because there was never any legal or administrative proceeding in this case. Finally, the court refused to recognize an applicable public policy from the nursing home patient's bill of rights because the patient was in a hospital, not a nursing home, and there is a statutory remedy in nursing home abuse situations.

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 Rejects Race Discrimination Claim of Plaintiff Discharged for False Expense Report

On Friday, the Sixth Circuit Court of Appeals affirmed the dismissal of a race discrimination case by the federal district court in Columbus. David Carson v. Patterson Companies, No. 09-4559 (6^th Cir. 2011). The plaintiff had been fired for falsifying his expense report by obtaining reimbursement for an expense that was direct billed by the supplier. Although the plaintiff claimed that he had earlier informed the company of a problem with the supplier's website and had never spent the funds, the Court concluded that the plaintiff failed to show that the employer's refusal to accept his explanation was a pretext to hide discriminatory animus.

According to the Court's decision, the plaintiff was hired in March 2007. Some of his business expenses were directly billed to the employer and others were billed to his corporate credit card. In December 2007, he attempted to purchase some supplies from a supplier's website and those supplies were supposed to be billed directly to the employer. However, when the website would not cooperate with a direct-bill arrangement, he had the expenses put directly on his corporate credit card. Although these expenses never appeared on his corporate credit card invoice, he still submitted a reimbursement request for these expenses and was reimbursed by the employer for those expenses. His practice was to keep a separate account for reimbursed expenses and he noticed that he still had leftover funds after paying his credit card bill. He assumed that he had never been charged for certain expenses that he had put on the credit card. He claims to have told his supervisor and let the matter go when he was allegedly told not to worry about it.

Of course, the discrepancy was later discovered in February 2008. The supervisor emailed the plaintiff for an explanation and received a response three days later only that the plaintiff was looking into it. A meeting was scheduled for the following Monday. The plaintiff explained that he had sought reimbursement for the direct-billed expenses because he thought his credit card had been charged and asked for more time to investigate. Convinced that the plaintiff had attempted to steal from the employer by falsifying an expense report, the supervisor fired him the following week. Again, the plaintiff failed to explain the discrepancy and only offered to return the disputed funds.

The plaintiff filed suit for race discrimination in his termination and compensation and the employer counterclaimed for the $757 that plaintiff had improperly been reimbursed. The district court granted summary judgment against the plaintiff. On appeal, the plaintiff argued that he was pursuing a mixed-motive theory of discrimination, but the Sixth Circuit found that he had failed to pursue that legal theory by arguing it explicitly below or raising it in his complaint.

The plaintiff argued that he was treated differently than white employees who had submitted incorrect expense reports. However, the Sixth Circuit found these employees not to be similarly situated because (1) they reported to a different supervisor; (2) had technical errors on their reports rather than seeking reimbursement for incorrect amounts or (3) corrected their mistakes (of charging personal expenses on their credit cards) immediately before they were actually reimbursed by the employer. In contrast, the plaintiff waited two months after he had been reimbursed and 13 days after being asked to explain the incorrect reimbursement request and never returned the money. The Court rejected the plaintiff's speculation that the supervisor was not the actual decisionmaker because there was no evidence on the record that he consulted anyone before terminating the plaintiff.

Although the plaintiff claimed that he had raised the issue with his supervisor when he received the credit card bill and realized that he had been reimbursed for more than the charges, he did not remind his supervisor of his when confronted in February, offer an explanation (about the malfunctioning website) or return the money. Accordingly, there was insufficient evidence of a disputed issue of material fact for a jury to consider if the case went to trial.

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.

Mansfield Company Pays $188K to Settle EEOC Sex Discrimination Lawsuit

Yesterday, the EEOC announced that it had settled a lawsuit against a Central Ohio company for $188K which involved retaliation and sex and wage discrimination. In the lawsuit, the EEOC alleged that the defendant employer hired an experienced female drafter to prepare drawings and sketches for batteries and engines, but paid a higher salary to a similarly qualified male engineer hired a few months after her to perform the same tasks. When the female engineer learned of the salary disparity, she complained to the human resources manager and was subsequently fired – allegedly in retaliation for complaining about the discrimination. The EEOC ultimately filed suit on her behalf in 2010, alleging violations of Title VII and the Equal Pay Act.

In addition to monetary damages for the female engineer, the EEOC obtained a two-year consent decree which requires training for the defendant employer's human resources personnel and employees at the Hyundai Ideal Electric Company's home office in Mansfield, Ohio and posting of anti-discrimination notices.

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.

Arbitrator Exceeded Authority By Ignoring Clear Contract Language and Deletion of Holiday Pay Cash-Out Negotiated at Table.

Last week, the Ohio Court of Appeals affirmed the reversal and vacation of an arbitration award in favor of a union's claim for holiday pay. Eastlake v. Fraternal Order of Police/Ohio Labor Council, 2011-Ohio-2201. In that case, the city and union had negotiated to delete a provision which provided employees with the option of (1) taking the holiday off with pay or (2) working the holiday and cashing out holiday pay at the end of the year. Afterwards, the City had the discretion to permit employees to work on holidays and to let the employee take a constructive holiday with pay. However, when the City exercised its rights under the new holiday provision following ratification of the bargaining agreement, the union argued that the employees were still entitled at their option to work the holiday and cash out holiday pay even though the former provision had been deleted. An arbitrator found that the new provision was ambiguous and would create a hardship for the employees if they lost out on the opportunity to receive 96 hours of pay at the end of the year as they had before negotiations. When the City moved to vacate the arbitration award, the trial court found that the arbitrator exceeded his authority by disregarding clear contract language, ignoring the bargain reached at the negotiating table and ignoring other provisions in the bargaining agreement. The Court of Appeals agreed.

According to the Court's opinion, before negotiations, union employees

had the option of either taking their 12 paid holidays as a holiday off with pay or working the holiday and then cashing out some or all of their holidays at the end of the year. Therefore, an employee could potentially cash out 96 hours of holiday pay in December of each year. That section read as follows:

"Employees shall have the option of either taking the time off with pay or to be paid for the holidays at their straight time rate of pay and shall notify the Chief of their election."

After negotiations, this provision was deleted from the bargaining agreement and Section 3 was inserted into the Agreement:

"Section 3. Holiday Work Option. At the discretion of the respective department head with consideration of workloads and department needs, an employee not regularly scheduled may work designated holidays. The employee may then elect to take the additional holiday compensation in the form of
payment.

Section 4. Holiday Time Scheduling. An employee that works on a recognized holiday or whose regular continuous schedule does not include the day of the observed holiday shall designate the days he wishes to take off at a later date, which shall be subject to the advance approval of the employee's supervisor as to when they may be taken. "An employee electing to take time off for holidays, shall be required to take the time during the year it is earned and not be able to carry the time over into the next calendar year.

The arbitrator found Section 3 to be ambiguous and, apparently, the Union testified that it had never been their intention during negotiations to lose the 96 hours of holiday pay. The common pleas court found that the arbitrator exceeded his authority in disregarding clear language in the agreement, finding a non-existent ambiguity, and giving the Union a better bargain than it negotiated.

The unequivocal language of the Agreement must be followed. Nowhere in Article 34 does it state that the Union would be entitled to cash out ten holidays in December of each year. In fact, as previously mentioned, the part of the Agreement that conferred such a benefit was deleted during negotiations. Under Sections 3 and 4, an employee may fall into only one of three categories: (1) an employee who is not regularly scheduled, but who is called into work by the respective department head; (2) an employee who is scheduled to work on a recognized holiday; and (3) an employee who is not scheduled to work on a recognized holiday. Only under the first scenario, i.e., Article 34, Section 3, may an employee cash out holiday compensation in the form of payment.

Further, the arbitrator's decision makes note of the fact that if the employees were not entitled to cash out the ten holidays for payment in December, it would be a harsh or unreasonable result and would have a substantial impact on the bargaining unit. However, the Union agreed both to the deletion of the provision, which granted them the holiday cash-out option, and to the addition of Section 3, which unequivocally limits the circumstance in which an employee may cash out holiday compensation in the form of payment.

Again, "'[a collective bargaining agreement] is limited to the provision bargained for and *** an arbitrator may not apply extraneous rules to the agreement, where those rules were not bargained for and are contrary to the plain terms of the agreement itself.' *** Because a valid arbitrator's award draws its essence from a [collective bargaining agreement], *** an arbitrator exceeds his powers when the award conflicts with the express terms of the agreement or cannot be derived rationally from the terms of the agreement. ***" (Internal citations omitted.) Summit Cty. Children Serv. Bd. v. Communication Workers of Am., Local 4546, 113 Ohio St.3d 291, 294, 2007-Ohio-1949.

Therefore, the Court of Appeals affirmed the common pleas court and ruled in favor of the employer.

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.