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Advocacy & Compliance News

Legal Watch - January 16, 2014
January 16, 2014

By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP

University Tennis Coach Entitled to Data Related to Pay, Performance and NCAA Rules Infractions of Other “Small Sport” Coaches in Pursuit of Race Discrimination Claim

A federal district court judge recently ruled that an African American tennis coach who accused Louisiana State University of race discrimination with regard to his pay and his discharge is entitled to discovery of other “small sport” coaches’ performance evaluations, pay information and violations of NCAA rules (Minnis v. Board of Supervisors of Louisiana State University Agricultural and Mechanical College ((M.D. La. No. 3:13-cv-0005, 12/4/13)).

The plaintiff had coached LSU’s women’s tennis team for 21 years before he was discharged. He claimed he was the lowest paid coach at the university, with white coaches of similar sports teams earning up to $30,000 more a year. He also claimed that he was falsely accused of misconduct and that he was reprimanded and received a “needs improvement” performance review years before he was discharged, although he had led his team to a successful season and was nominated for a national “coach of the year” award.

The plaintiff also alleged that the university refused to give him a reason for his discharge and later replaced him with a white female coach who had only three years of experience as an assistant coach. He further alleged that the university hurt his chances of finding another job by giving negative references to schools that were considering hiring him for other coaching positions.

The plaintiff filed a discovery motion compelling the university to produce copies of all discrimination, harassment and retaliation complaints over the past 10 years, and all performance evaluations, pay data and documents related to NCAA violations for coaches of both men’s and women’s smaller teams at the university. The judge granted the plaintiff’s motion and ordered the university to produce the requested documents (dating back to 1995).

School’s Overly Broad No-Gossip Policy Violates NLRA by Prohibiting the Protected Activity of Discussing Wages and Working Conditions

A National Labor Relations Board (NLRB) administrative law judge (ALJ) recently ruled, in a case involving a private technical school subject to NLRB jurisdiction, that a no-gossip policy contained in the school’s personnel handbook was overly broad and violated the National Labor Relations Act (NLRA)’s protection of a worker’s right to freely discuss among themselves matters relating to wages and working conditions (Laurus Technical Institute (NLRB ALJ, No. 10-CA 093934, 12/11/13)).

The no-gossip policy contained in the personnel manual defined gossip as including talking about one’s personal or professional life without one’s supervisor present and/or making negative or disparaging comments or criticism of another person. The ALJ concluded that the language and definitions in the no-gossip policy are overly broad and ambiguous and severely restrict employees from discussing or complaining about any terms and conditions of employment. The ALJ concluded specifically that the scope of the definition of “gossip” would chill an employee’s NLRA Section 7 right to freely discuss (be those discussions positive or negative) with other employees, outside of the presence of supervisors, matters relating to wages and working conditions. The ALJ further concluded that without the school more narrowly describing and defining its no-gossip rule, the policy as written violates the NLRA.

First Amendment “Intimate Association” Right Protects Employee From Employment Discrimination Because of Interracial Engagement

In a case of first impression, the U.S. Court of Appeals for the Second Circuit ruled that a former water authority dispatcher who was harassed and fired because he was engaged to a black woman proved his employer’s violations of his First Amendment right to “intimate association,” and therefore the employer was liable under the Civil Rights Act of 1871 (Matusick v. Erie Cty Water Authority (2nd Cir., no. 11-1234, 1/6/14)).

Although some circuit courts of appeals have limited “intimate association,” — First Amendment protection of marriage and other family relationships — the second circuit concluded that no such limitation is contained in Supreme Court precedent and ruled that the plaintiff’s “committed relationship” fits within appropriate constitutional protection.

The plaintiff in this case won his federal court jury trial and was awarded $365,000 in back pay and interest, $84,000 in attorney fees and $6,500 in costs. The county water authority appealed the case to the second circuit, arguing that First Amendment intimate association rights should be limited to marriage and family. The court of appeals ruled 2 to 1 that the plaintiff’s jury verdict should be affirmed and that intimate association can properly apply to a committed relationship.

This case will serve as precedent that discrimination against an employee because of an interracial engagement or relationship can result in an adverse jury verdict under the First Amendment and the Civil Rights Act of 1871 (42 USC sec 1983).

HR Managers’ Instant Messaging Chat Referring to “Shelf Life” of Plaintiff Not Enough to Sustain Complaint of Age Discrimination

A U.S. Court of Appeals recently affirmed the dismissal of an age discrimination complaint against an employer where the plaintiff claimed that the instant messaging chat of two human resources managers in which they referred to his “shelf life” as a possible reason to include him in a pending workforce reduction was not direct evidence of age discrimination nor was it an ageist comment (Roberts v. IBM ( 10th Cir., No. 12-5169, 11/5/13)).

The court rejected the plaintiff’s contention that the “shelf life” reference was direct evidence of age discrimination. The court concluded from the context of the instant messaging conversation that the comment did not refer to the plaintiff’s age but rather to the amount of billable work he had remaining on the project to which he was assigned. The court further held that the topic of the instant messaging conversation was the pending workforce reduction and that the plaintiff was not terminated as a result of the job cuts being discussed at that time. Rather, sometime thereafter the plaintiff voluntarily agreed to be put on a performance improvement plan as a result of performance problems, and his termination came as a result of his inability to address the problems relating to the performance improvement plan.

The court concluded that the “bottom line” is that the “shelf life” comment was nothing more than an “inartful reference to the plaintiff’s queue of billable work.” As such, it does not amount to direct evidence of age discrimination under the federal statute.