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Advocacy & Compliance News

Legal Watch - November 20, 2014
November 20, 2014

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


Employee With Nail Lodged in Head From Non-Work Accident Granted ADA Jury Trial on “Regarded as Disabled” Claim

A federal district court judge has ruled that a former employee who was discharged allegedly for performance reasons after returning to work three months after a non-work accident which resulted in a nail being lodged in his head has a triable ADA jury trial claim under his “regarded as disabled” claim (Stragepede v. City of Evanston (2014 BL 268395, ND Ill., No. 1:12-cv-08879, 9/26/14).

The judge held that the plaintiff did not conclusively show that he was “actually disabled” because his head injuries may not limit any of his major life activities. Nonetheless, the plaintiff has a right to a jury trial over his claim that his employer actually regarded him as disabled and discharged him because of that regarded disability. The judge ruled the case must also go to a jury because there was conflicting evidence as to whether as a result of his condition he could continue to perform the essential elements of the job.

The plaintiff was out of work for three months recovering from a head injury. His doctor concluded that he had “mild cognitive deficits” but that “he should be able to return to work.” His job was to install water meters and to remove meters and cut off services to delinquent accounts. His employer argued he could no longer perform the essential elements of the job and claimed that he had gotten lost while on the job and had failed in an attempt to shut off a meter. The employee claimed that the mistakes were not the result of his head injury. He argued that in the instance of the meter not shutting off, it failed to do so because of a defect in the key, and that he got lost due to GPS error.

The judge ruled that a jury would have to decide these issues.


Campus Police Officer Loses First Amendment Retaliatory Discharge Claim

A newly hired campus police officer, still within his probationary period, lost a First Amendment retaliatory discharge claim, as the court held that his speech was not protected by the First Amendment as a matter of public concern and that his speech was nothing more than a personal complaint against a coworker, another campus police officer who was the estranged husband of the woman with whom he was engaged in an affair. As the plaintiff was still within his probationary period, the university was not required to terminate him for just cause and absent a valid First Amendment claim, the discharge stands (Goff v. Kutztown University (E.D. Pa., no. 5:14-cv-03415, unpublished 10/22/14)).

The plaintiff received a call from the woman with whom he was having an affair in which she stated that her estranged husband had threatened her with a gun. The plaintiff called the state police to report the threat, stating that he was a campus police officer, but did not report that he was having an affair with the woman who was complaining. The court ruled that the complaint to the state police was not made as a private citizen and did not involve a matter of public concern.

The judge ruled that “while it is admirable that the plaintiff suggests that any threat of domestic violence is a matter of public concern, he is mistaken … The substance of the call did not relate to any matter of political, social or other concern to the community, but [rather] to the safety of his paramour at the hands of her estranged husband. This situation cannot be considered constitutionally protected conduct for a public employee.”


Adjunct Faculty Union President’s Letter Critical of College and Its Treatment of Adjunct Professors Is Protected First Amendment Speech, Enabling Retaliatory Discharge Claim to Move Forward

The U.S. Court of Appeals for the Seventh Circuit reversed a federal trial court’s dismissal of an adjunct faculty union president’s claim that her discharge violated the First Amendment. The plaintiff claims she was discharged two days after sending a letter that was critical of the college’s treatment of adjunct professors and stated that the “shoddy” way the college treats adjuncts could affect student performance.

The college successfully argued to the federal trial court judge that the plaintiff’s motives in sending the letter were purely personal, as she was an adjunct herself, and the matter simply does not raise a matter of public concern. The three-judge appeals court unanimously reversed the decision, holding that the letter was written in the plaintiff’s capacity as adjunct union president, contained “almost no content personal to plaintiff” and raised “several matters of public concern,” not the least of which is student performance (Meade v. Moraine Valley Community College (7th Cir., 14-1217, 10/30/14)).

The appeals court noted that an individual’s “motive is not dispositive of whether the speech raises a matter of public concern.” The court also concluded, “The people who attend Moraine Valley, along with their families and others who live in the area, no doubt want to know if this practice poses a threat to student performance.” The court concluded, “It is difficult to see how any part of this discussion could be considered purely personal … or of zero interest to the public.” Finally, the court pointed to a prior Supreme Court decision (Pickering v. Board of Education) which recognized that “public employees as a class may often be the best informed on matters of public concern related to their jobs.”


EEOC Loses Bid to Stop Employer From Assessing Penalties Tied to Employee Refusal to Participate in Wellness Program and Biometric Screening

A federal district court recently denied the EEOC’s application for an injunction to restrain an employer from assessing health insurance-related penalties on employees who refuse to participate in its wellness program (EEOC v. Honeywell International Inc. (D. Minn., 0:14-cv-04517, injunction denied, 11/3/14)).

The wellness program in question includes biometric screening, the drawing of blood to test cholesterol levels, and a determination of body mass index by measurement of height, weight and circumference. The EEOC alleged that employees and/or spouses who refused such testing would be assessed a $500 surcharge on their 2015 medical plan costs. In addition, the EEOC alleged that the employees could lose as much as $1,500 in company contributions to health savings accounts and be charged as much as $2,000 in tobacco-related surcharges. The EEOC stated that the testing would be acceptable if it were voluntary, but said the size of the fines means it is not.

The company defended its practices, saying they are lawful and that they firmly believe that “it is not fair to employees who lead healthier lifestyles to subsidize the healthcare premiums for those who do not.” While the EEOC lost its bid for an injunction, it is likely the case will go forward, as the EEOC will likely litigate the legality of such plans.


Tufts, SEIU Agree to Collective Bargaining Agreement Granting Wage and Job Security and Professional Development Benefits to Adjuncts

Adjunct lecturers represented by SEIU Local 509 ratified by a 90 percent vote a three-year collective bargaining agreement negotiated with Tufts University. The agreement raised the minimum pay an adjunct lecturer will receive to $7,300 per course by September 2016 and $8,760 per course for those with eight or more years of service at Tufts. SEIU reported that under the contract, those teaching romance languages, who previously received the lowest pay, will have their pay increased by as much as 40 percent.

The adjuncts will also receive pay for the first time for work performed outside the classroom, such as serving as thesis advisers. Regarding job security, if a course is cancelled, the adjunct will still receive full pay. Addressing job stability, semester-to-semester appointments will be changed to year-long appointments, and in 2017, adjuncts with four or more years of service will be eligible for two-year appointments and those with eight of more years of service will be eligible for three-year appointments.

The contract also creates a $25,000 professional development fund that any lecturer may tap to cover up to $500 in scholarly pursuits to enhance their teaching and research. Finally, a formal process was established to evaluate teaching and overall performance of lecturers.