A Crucial Debate on Constructive Discharge

November 27, 2015

By R. Scott Oswald

On Monday morning the U.S. Supreme Court will hear arguments on the rules federal employees must follow when they’re forced out of their jobs by discrimination or retaliation.

The case in question, Green v. Brennan, is about legal deadlines. That sounds technical, but really it boils down to simple justice. If the Court affirms a lower judgment, it will become far too easy to deprive federal workers of their day in court.

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D.C. Circuit Holds Trial Court Cannot “Divine” Reasons for Summary Judgment Not Offered by Movant

September 16, 2015

In a recent case before the D.C. Circuit Court of Appeals, Coleman v. District of Columbia, et al., 794 F.3d 49 (D.C. 2015), the Court overturned the District Court’s grant of summary judgment in favor of the District of Columbia in a case involving a former Captain of the D.C. Fire Department who claimed her termination was retaliation for whistleblowing. The Court’s opinion, which contains important holdings regarding the standard of proof under the D.C. Whistleblower Protection Act, also emphasizes the moving party’s burden at summary judgment to show “no genuine dispute of material fact.”

In reversing, the Coleman Court noted two legal errors by the lower court: (1) it relied in part on reasons not given by the Fire Department, but instead “divined” by the court and deemed to have been “impliedly offered;” and (2) inappropriately shifted the burden of persuasion back to the plaintiff after the Department articulated a legitimate, non-retaliatory reason for its adverse actions.
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Fourth Circuit Holds that Single Discriminatory Incident Can Give Rise to a Hostile Work Environment

July 24, 2015

In overturning the U.S. District Court for the District of Maryland, the Fourth Circuit Court of Appeals affirmed that a hostile work environment – which typically results from a series of separate incidents – can also exist when an employee is subjected to a single sufficiently severe hostile action.

The Fourth Circuit found that Reya Boyer-Liberto, a former cocktail waitress at the Clarion Resort Fountainbleu in Ocean City, Maryland, was subjected to a severe hostile action when her supervisor called her a “porch monkey” twice in one night. The Court also found that Boyer-Liberto’s engaged in protected activity when she reported the incident.

The Fourth Circuit’s decision overturned the District Court ruling, which was based on the presumption that a claim of hostile work environment must allege a series of discrete events in order to be actionable. The Fourth Circuit found that the actions of Boyer-Liberto’s supervisor were sufficiently severe to give rise to a hostile work environment claim, even though the discriminatory behavior happened in the course of just one night.

The ruling by the Fourth Circuit Court of Appeals that a single instance of discrimination can constitute a hostile work environment enhances workers’ rights. When a single incident is sufficiently severe, employers cannot avoid liability for a hostile work environment claim simply because the alleged underlying discriminatory behavior did not occur in a series of separate incidents.

Multi-Agency Guide Updates LGBT Discrimination Protections for Federal Workers

June 30, 2015

On June 3, 2015, four U.S. Government agencies released a guide on rights and protections afforded to federal employees and applicants who allege sexual orientation or gender identity discrimination. The guide reflects a growing body of case law that supports the proposition that Title VII of the Civil Rights Act of 1964 and other statutes offer substantial protections for lesbian, bisexual, gay, and transgender (LBGT) employees.

The U.S. Office of Personnel Management (OPM), the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Office of Special Counsel (OSC), and the U.S. Merit Systems Protection Board (MSPB) collaborated on the guide, titled “Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment: A Guide to Employment Rights, Protections, and Responsibilities.” The guide provides federal workers with a description of employee rights and agency responsibilities under Title VII, the Civil Service Reform Act of 1978, and other agency and union procedures.
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Sixth Circuit Finds Teleworking a Reasonable Accommodation Depending on the Situation

June 09, 2015

In EEOC v. Ford Motor Co., the Sixth Circuit ruled that Jane Harris, a resale buyer at Ford who suffers from irritable bowel syndrome (IBS), was not qualified for her position, and therefore Ford did not discriminate against Harris when it denied her request to telework as a reasonable accommodation.

The EEOC brought claims on Harris’s behalf under the Americans with Disabilities Act, alleging that Ford failed to reasonably accommodate Harris when it denied her request for a schedule with maximum flexibility to telework, and retaliated against her for reporting this denial to the EEOC. The District Court granted summary judgment to Ford on both claims.

The Sixth Circuit reversed the District Court and held that whether teleworking is a reasonable accommodation was a question for a jury. In an en banc review, the Sixth Circuit affirmed the District Court’s grant of summary judgment. In the en banc opinion, the Sixth Circuit determined that no reasonable jury could find that telecommuting was a reasonable accommodation under this particular set of facts, but also held that telecommuting could be a reasonable accommodation under a different fact pattern.

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Appeals Court Rules that First Amendment Protects NYPD Officer from Retaliation for Opposing Stop-and-Frisk Quotas

April 07, 2015

In Matthews v. City of New York, the Second Circuit Court of Appeals overturned a holding by the U.S. District Court for the Southern District of New York (SDNY) that retaliation for a police officer’s concerns about stop-and-frisk policy was not barred because the officer had expressed his concerns in his role as a public employee. The Second Circuit held that the officer’s public role was to execute the policy, but he had expressed his concerns about the legality of the policy in the role of a private citizen.

The officer, Craig Matthews, alleged that his supervisors in the 42nd precinct developed an illegal quota system and that any officers failing to meet the quotas were identified and subject to retaliation. After Officer Matthews began reporting the allegedly illegal nature of the quota system, the NYPD retaliated against him by giving him punitive assignments and poor performance evaluations, denying him overtime and leave, separating him from his longtime partner, and subjecting him to constant harassment and threats.

Matthews asked the SDNY to find that the NYPD’s retaliatory actions violated his free speech rights under both the First Amendment and the New York State Constitution. But the Southern District granted the City’s Motion for Summary Judgment, finding that Matthews made his complaints as a public employee, and not as a private citizen.

On appeal, the Second Circuit disagreed with the SDNY, and remanded the case for further proceedings. The Second Circuit reasoned that Matthews’ opinions about the quota system and any corresponding complaints were not related to his actual or functional job responsibilities. Therefore, Matthews made these complaints in his capacity as a private citizen. The Second Circuit reasoned that, if a public employee’s job responsibilities do not entail creating, implementing, or providing feedback on a policy, any complaints made by the employee about the policy are made as a private citizen and are protected speech.

This decision further chips away at the United States Supreme Court decision in Lane v. Franks, which held that the First Amendment can protect government workers from punishment if they are testifying under oath about job-related matters.

Obesity Qualifies as a Disability under the ADA

April 02, 2015

A consensus has developed in the federal courts that obesity qualifies as a “disability” under the Americans with Disabilities Act (ADA), even in the absence of an underlying physical impairment. While the ADA does not explicitly say whether obesity is a disability, Congress broadened the definition of “disability” in the 2009 amendments to the ADA. Several jurisdictions interpret the language in the amendments to mean that severe obesity is a protected “disability,” so that employers may not take adverse actions against an employee based on the employee’s actual or perceived obesity, and are required to offer reasonable accommodations, if needed, to the disabled employee.

Discrimination based on an employee’s weight can come in subtle forms. For example, a supervisor may tease the employee in front of his or her coworkers or require an employee to take medical leave because of the employee’s weight, which may interfere with the employee’s performance of his or her job duties. In addition, an employer may terminate an overweight employee because his or her medical expenses are financially burdensome to the employee health insurance plan.

This trend in recognizing obesity as a legally protected disability enjoys international support. In a recent decision, the Court of Justice of the European Union, the EU’s top human rights court, ruled that obese workers can be considered disabled under European anti-discrimination laws if an employee’s obesity hinders “full and effective participation of that person in professional life on an equal basis with other workers.”

Meanwhile, some state legislatures in the United States—where almost 1 in 3 adults is obese, according to the World Health Organization—have enacted laws that explicitly prohibit discrimination based on a person’s weight. More states may soon follow, given that the American Medical Association recently for the first time recognized obesity (at any level of severity) as a disease. At the same time, a new study found that almost 75% of people support adding body weight as a protected characteristic under anti-discrimination laws.

Florida Court Says Facebook Posts May Not Be Private

February 28, 2015

Social media may be part of your lawsuit.

On January 7, 2015, a three judge panel sitting on Florida’s Fourth District Court of Appeals ruled that a plaintiff had to produce photos she had posted on Facebook. The court granted Defendant Target Corporation’s request to compel Plaintiff Maria Nucci to produce the photos.

Prior to this decision, Florida trial courts were split as to whether information posted on social media sites is discoverable in a lawsuit.

When Target moved to compel Nucci to produce photos from her Facebook page, Nucci argued that, as a Facebook user, she had a reasonable expectation of privacy. Nucci cited the fact that Facebook generally prevents the public from accessing her page without her permission.

Rejecting Nucci’s argument, the Florida Court held that Facebook users have only very limited privacy rights. The court noted that Facebook requires users to acknowledge their limited rights when they sign up for the site. The court then held that photos depicting Nucci’s quality of life before and after an accident at a Target store were highly relevant to the lawsuit—and discoverable.

It remains to be seen how other Florida courts will follow and apply the decision by the Florida Fourth District Court of Appeals.

Department of Labor Administrative Review Board Upholds Compensatory Damages Award Based on Unrebutted Psychiatrist Testimony

January 29, 2015

On November 3, 2014, the U.S. Department of Labor Administrative Review Board ruled that a pilot was entitled to compensatory damages for retaliation by Continental Airlines for his protected refusal to fly a plane without an inspection.

The 2014 ARB decision upheld the determination made by an administrative law judge on remand from a previous ARB decision. On January 31, 2012, the ARB had affirmed the earlier ALJ decision, which found that Continental Airlines retaliated against Roger Luder. However, in its 2012 decision, the ARB held that the ALJ had improperly granted both back and front pay to Luder and remanded the case to determine the proper amount of damages.

Luder’s claims date back to 2007, when he and a co-pilot were scheduled to fly a Continental flight from Miami to Houston. Before departure, Luder’s co-pilot informed him that the plane had experienced turbulence during the previous flight that had gone unreported. Federal regulations require that planes be inspected after experiencing turbulence. Accordingly, Luder insisted that the plane be inspected prior to taking off and wrote a log entry regarding the turbulence.

As a result, Continental temporarily suspended Luder and issued him a “termination warning” letter citing “unprofessional behavior.” Luder eventually claimed to suffer from an array of ailments arising from the retaliation, and claimed those ailments caused him to fail a flight simulator test and be disqualified from flying.

Luder brought the suit under the whistleblower protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, also known as AIR 21, and its implementing regulations, 29 C.F.R. Part 1979 (2013). The ARB has authority to issue final agency decisions under AIR 21. The November 3, 2014 decision on damages was ARB Case No. 13-009.

The 2012 ARB decision had determined that Luder’s actions constituted protected activity under AIR 21 and that Continental’s suspension of Luder constituted an adverse action. The ALJ had awarded Luder compensatory damages for posttraumatic stress disorder, anxiety, and depression resulting from Continental’s retaliation for his refusal to fly an uninspected and potentially damaged plane. The ALJ relied on testimony by Luder and a psychiatrist, Dr. Shaulov. The ARB remanded to the ALJ for determination, under a preponderance of the evidence standard, that the retaliation caused the harm.

The ALJ entered a Recommended Decision and Order on Remand, determining that Luder proved that the retaliation caused his psychiatric condition that prevented him from returning to work. The ALJ found “ample support for causation . . . when the entire record, including the credible testimony of Dr. Shaulov, Dr. Jorgenson, and Luder, is considered.”

A dissenting opinion in the ARB’s recent 2014 decision argued that a judge should still examine undisputed expert testimony under Federal Rule of Evidence 702 for “sufficient facts or data that properly applied reliable principles and methods,” but stopped short of advocating a Daubert hearing.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation, including employees in the airline industry.

Supreme Court of Hawaii: Arbitration Clause Is Unenforceable

November 19, 2014

On October 31, 2014, the Supreme Court of Hawaii held that arbitration clauses that give employers “sole discretion” to select an arbitrator violate the “fundamental fairness standard” and are thus unenforceable.

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