Legal Watch – October 16, 2014
October 16, 2014
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
The director of Art Galleries at Austin State University has a right to a jury trial over his complaint of wrongful, retaliatory discharge by the university as a result of his calling a local U.S. congressman a “fear monger.” The plaintiff sued Austin State University and four university officials. The Fifth Circuit Court of Appeals affirmed the federal trial court’s denial of the defendants’ motion for summary judgment, concluding that the plaintiff has a right to a jury trial over this First Amendment issues (Cutler v. Stephen F. Austin State University, 2014 BL 255703 (5th Cir., No. 13-4085, 9/15/14)).
The Fifth Circuit concluded that the university and the officials had “clear warning” as a result of substantial First Amendment precedent that public employees cannot be terminated when speaking on a matter of public concern which is unrelated to the employee’s job duties. The plaintiff was invited by a member of the U.S. House of Representatives to curate and judge a local high school art exhibition that was being hosted by the congressman.
The plaintiff researched the congressman and developed a negative opinion of him related to a speech he made on the House floor in Washington in which he described “terror babies” who are the children of foreign mothers born on American soil who he claimed grow up to be “future terrorists.” The plaintiff rejected the congressman’s invitation, telling the representative’s staff members that he did not want to be associated with a “fear monger.” The plaintiff was fired seven days after the congressman notified the university of the incident.
The appeals court held in ordering the case to go forward to a jury trial that public employees who make statements as part of their official job duties are not protected by the First Amendment. Here, however, the plaintiff’s comments were made externally to a staff person of an elected public representative about participating in an event that was not part of the plaintiff’s job duties or requirements. The court held that he spoke about matters unrelated to his job as a university employee and expressed views as a private citizen. The court also noted that even when an employer is wrong in its conclusion, the court will not second guess decisions made as part of a reasonable investigation. In this case, however, the court concluded that the university’s investigation was unreasonable and “woefully inadequate.” The court found that the university prepared no report and operated under an ad hoc procedure despite having “regular investigative procedures.”
A federal district court judge recently ruled that a community college that terminated its assistant director of housekeeping while she was on medical leave recuperating from corneal surgery must defend its action in an ADA jury trial even though the plaintiff’s condition was not disabling. The judge ruled that the plaintiff is entitled to a trial over whether the community college “regarded” her as disabled and terminated her because of that (Williams v. Baltimore County Community College (2014 BL 263496, D. Md., No. 1:12-cv-00238, 9/23/14)).
The judge ruled that the plaintiff raised triable issues regarding ADA discrimination and retaliation because the employer did not explain why it accelerated her return-to-work date and refused to allow her to fully participate in its employee leave donation program. The plaintiff’s doctor said that she would be able to return to work six months after the surgery. The plaintiff was on FMLA leave and had intended to use the college’s donated leave program which allowed other employees many months of extra leave.
The college terminated her employment while she was on leave, stating that she did not qualify for the extended leave program. The judge held that the plaintiff is entitled to a trial over whether the college’s stated reasons were a pretext for “regarded as disabled” discrimination, which is protected by the ADA.
Disgruntled current and former employees are increasingly using internet cloud services and other computer tools to hack their former employers’ computer systems, report the FBI and the Department of Homeland Security. The agencies report that former employees are increasingly using services like Dropbox Inc.’s cloud storage or other software that allows them to gain remote access to employer networks and steal trade secrets and other data or create other problems. The agencies report that some employers victimized by current and former employees have incurred multimillion dollar costs.
The agencies also report multiple incidents in which disgruntled current or former employees attempted to extort their employer for financial gain by disabling content management systems, functions or conducting other attacks.
The Equal Employment Opportunity Commission (EEOC) recently filed landmark lawsuits against a funeral home in Michigan and an eye clinic in Florida alleging transgender discrimination. The lawsuits allege that the former employees were terminated after they announced their male-to-female transitions (EEOC v. Harris Funeral Homes (E.D. Mich., No. 2:14-cv-13710, 9/25/14) and EEOC v. Lakeland Eye Clinic (M.D. Fla., No. 8:14-cv-02421, 9/25/14)).
The EEOC claimed in both lawsuits that the plaintiffs were transitioning from male to female and were discriminated against because they are transgender and did not conform in either case to the employer’s gender or sex-based stereotypes, expectations or preferences. The circuits where the cases were brought have in the past upheld sex stereotyping claims brought by individual transgender employees. In addition, 17 states and the District of Columbia now ban gender identity bias in the workplace.
The charging party in the Florida case announced to her supervisor her plans to transition sexes, began wearing makeup and women’s tailored clothing, and stated that she would be changing her name from Branson to Brandi. As a result, all but one of the doctors in the eye clinic stopped referring her patients. The clinic ultimately fired her and replaced her with a male. The employer denies discrimination.
Adjunct professors at the College of St. Rose in Albany, New York, voted in favor of representation by the SEIU 175 to 61 in September. The representation election was held pursuant to NLRB rules and supervised by the NLRB. On the other coast, adjuncts at the California College of Arts in San Francisco chose SEIU as their collective bargaining representative, becoming the third private college or university in the Bay area with organized faculty. The California College of Arts adjunct unit consisted of 350 professors, and the vote was 181 in favor of unionization and 113 opposed. SEIU claims that instructors at 23 private colleges and universities are represented by the union.