Legal Watch - July 24, 2014
July 24, 2014
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
The United States Court of Appeals for the 11th Circuit recently ruled in favor of the first amendment rights of a teachers’ union president working on loan to the union. The court of appeals reversed the decision of the trial court, which had ruled that the school district in question could lawfully refuse to renew the union president’s teaching contract because of his public criticism of the school district during his tenure as union president (Hubbard v. Clayton County School District (2014 BL 180177, 11th Cir., No. 13-12130, 6/27/14)). The federal district trial court ruled in favor of the school district, holding that the plaintiff was speaking pursuant to his official job duties with the school district while he was union president and therefore had no first amendment protection.
The plaintiff served as the president of the Georgia Association of Educators when the comments critical of the school district were made. While serving as union president, he was still employed by the school district, but was “on loan” to the union. This relationship was worked out so that he could continue receiving benefits from the school district. Although he was technically an employee of the school district while he was union president, the union did reimburse the school district for his salary and benefits, and he performed no duties for the school district while he served as union president.
While serving as union president, the plaintiff made comments at the Georgia Capital about a report critical of the school district. He said that if the report was true, then members of the district school board should step down. The appeals court concluded that his relationship with the school district while serving as union president was a only a formality so he could receive benefits, as he performed no functions for the school district. The court concluded that the substance of his employment relationship with the school district was that he was “on leave” to be the full-time president of the Georgia Association of Educators. The court concluded that the plaintiff’s public comments were not an official communication of the school district, but rather a communication in his capacity as president of the union. His speech could not be attributed to the school district, and the school district had no legitimate interest in controlling his speech.
The United States Court of Appeals for the 8th Circuit recently upheld a university’s civility clause and its termination of a professor for violating it, rejecting his claim and the trial court’s conclusion in his favor that the clause was “unconstitutionally vague” (Keating v. University of South Dakota (2014 BL 185198, 8th Cir., No. 13-3405, 7/2/14)).
The university refused to renew a tenure track professor’s annual employment contract following his use of derogatory language and insubordinate statements in communication with his immediate supervisor. The plaintiff had a bad relationship with his supervisor and sent an e-mail to the supervisor claiming there was “no way he could trust the supervisor with another problem” and that the supervisor was “a lying, back stabbing sneak.” The university’s employment policy civility clause states in part that “employees are to treat their colleagues, staff, students and visitors, with respect” and “comport themselves” cooperatively at all times, “even when expressing disagreement.”
The court of appeals reversed the trial court’s decision in favor of the plaintiff, holding that the civility clause was not unconstitutionally vague. The appeals court concluded that “a government policy is unconstitutionally vague if it fails to provide a person of ordinary intelligence fair notice of what is prohibited and is so standardless that it authorizes or encourages seriously discriminatory enforcement.” The court concluded in this case that the clause was not impermissibly vague because the plaintiff should have recognized that his conduct was not consistent with the requirement to treat fellow employees with respect.
The 11th Circuit Court of Appeals joined what it claimed were five other circuit courts of appeals in rejecting “me too” evidence of similar harassment to prove a hostile environment case where the plaintiff was not personally aware of the other harassment (Adams v. Austral USA, LLC, (2014 BL 167777, 11th Cir., No. 12-11507, 6/17/14)). The court concluded that proof that other employees in the same protected class experienced similar harassment cannot be used to prove that the plaintiff experienced an objectively hostile work environment unless the plaintiff was personally aware of such harassment.
The appeals court concluded that the courts, including the Supreme Court, have not clearly defined the outer bounds of admitting “me too” evidence to prove that an employer should be liable for a hostile work environment. “Me too” evidence of similar harassment which is unknown to the plaintiff can be used to rebut an employer’s defense that its anti-harassment procedures were sufficient to protect against harassment. However such evidence, unless known to the plaintiff, cannot be used to support a plaintiff’s claim that he/she experienced an objectively hostile work environment.
The Service Employees International Union (SEIU) and its “adjunct action” unit continues to win NLRB supervised elections among adjunct professors at private colleges and universities throughout the nation. Adding to SEIU victories on both coasts, the “adjunct action” unit won an NLRB-supervised election at Hamline University in St. Paul, Minnesota, at the end of June.
The SEIU unit won a positive vote from 75 percent of those voting in a unit of 84 adjuncts. Reportedly the main issue was money. Many of the adjuncts had worked at the university for several years and had reportedly never received a wage increase.