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Advocacy & Compliance News

Legal Watch - December 18, 2014
December 18, 2014

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

Reassigned Custodian Loses First Amendment Retaliation Claim

A school custodian lost his First Amendment retaliation claim when the U.S. Court of Appeals for the Eighth Circuit affirmed a federal trial court dismissal of his claims on summary judgment (Skalsky v. Independent School District No. 743 (8th Cir., No. 13-3605, 11/28/14)).

The plaintiff was a school custodian who was allergic to bee stings and claimed that the school district retaliated against him by assigning him outdoor work six days after his wife attended and addressed a school board meeting in which she made pointed budgetary suggestions which were opposed or disliked by the superintendent. The custodian’s wife addressed the school board and suggested that the board eliminate a superintendent, share one with another district and eliminate a principal as a way of addressing its budgetary problems. The plaintiff claimed that the existing superintendent did not like his wife’s comments and retaliated against him by assigning him outdoor work which could be potentially life threatening. The plaintiff had no proof substantiating his claim that the superintendent was upset with his wife’s comments or reassigned him in retaliation for those comments, other than the argument that the reassignment happened shortly after the comments.

The school district proffered evidence that it in response to its financial problems it made budget cuts that eliminated a part-time custodian who had been responsible for outdoor tasks. As a result, the district reallocated those outdoor duties among the remaining qualified custodians, including the plaintiff. The court, in dismissing the plaintiff’s lawsuit, held that temporal proximity alone cannot establish retaliatory motive and that in this case the plaintiff offered no other evidence to support his claim of retaliation. The plaintiff lost his marital discrimination claim filed under the applicable state statute for the same reasons. Finally, the court noted that there was no evidence that the school district knew of his bee sting allergy when it made the assignment.

Court Dismisses Plaintiff’s ADA Claim, Notwithstanding Evidence of Boss’s Offensive Comments About Plaintiff’s Medical Condition

The plaintiff in this case suffered from a bowel disease which qualified as a disability under the Americans with Disabilities Act. His boss had made derogatory and offensive comments about his condition, which the court held were “stray remarks.” The 10th Circuit Court of Appeals affirmed the dismissal of the plaintiff’s ADA claim, which alleged his boss assigned him troubled accounts, resulting in less commissions, because of his disability. The court held that the plaintiff did not provide evidence of a “nexus between the boss’s stray remarks and any adverse employment action” (Melin v. Verizon Business Inc. (10th Cir., No. 14-3071, unpublished opinion 11/25/14)).

The plaintiff had filed an internal complaint against his boss, alleging that he had made derogatory comments about his medical condition. The company investigated and concluded that the boss’s comments were offensive and violated the company’s code of conduct. A year later, the plaintiff filed a charge with the EEOC alleging that the boss gave him adverse customer assignments resulting in lower commissions. The court ruled that the plaintiff’s complaint must be dismissed because he provided no evidence that the boss made any assignments based on his medical condition and was unable to prove that the “distressed accounts” he was assigned actually resulted in less commissions.

EEOC Received Less Discrimination Charges in FY 2014 But Filed More Systemic Lawsuits

The EEOC received and resolved fewer private-sector discrimination charges in 2014. The number of charges received in fiscal year 2014 was at the lowest level since 2007 and ended a streak of six years in a row in which it received at least 93,000 charges. The EEOC resolved almost 10,000 fewer charges in fiscal year 2014 than it resolved in fiscal year 2013, but attributed the decrease to last year’s 16-day partial government shutdown.

The EEOC reported that “systemic cases” now make up 25 percent of its active lawsuits, the largest proportion since it began tracking these numbers in 2006. The EEOC defines “systemic cases” as those cases brought about employment policies or practices that broadly affect a geographic region, industry or entire class of employees or job applicants. The Commission reported completing 260 systemic case investigations in 2014, resulting in 78 settlements and conciliation agreements that secured approximately $13 million in monetary relief.

The EEOC also reported that it added 60 new investigators in fiscal year 2014, increasing its total to about 716 investigators. This means that the agency should be able to process more charges in fiscal year 2015.

California Appeals Court Upholds Private University Employee’s Wrongful Termination Claim Based on Whistleblowing of Alleged Supervisor Kickbacks

A California state appeals court reversed the decision of a state trial court which dismissed a plaintiff’s wrongful termination claim because the trial court ruled that because the defendant university was a private institution, the plaintiff’s discharge did not raise a public policy issue. The appeals court ruled that the plaintiff’s whistleblower allegations that her boss was involved in “commercial bribery” not only affected the interests of the private university, but also raised a public policy concern under state law which protects an employee reporting a criminal law violation from retaliation (Ferrick v. Santa Clara University (Cal. Ct. App., No. H040252, 12/1/14)).

The university claimed it discharged the plaintiff for financial irregularities because she processed a bill to the university for her son-in-law for an extra $6,000 which she mistakenly believed he left off his bill for a truck he procured for the university. When he received the extra money, he immediately wrote the university a check paying back the $6,000, and the plaintiff deposited that check back into the university’s account. The plaintiff alleged that the university’s stated reason for her discharge was “pre-textual” and that the real reason was her prior whistleblowing report on her supervisor.

The appeals court held that the plaintiff’s allegations of alleged misconduct not only affected the university’s private interests, but also, contrary to the trial court’s conclusions, “implicated the public policy embodied in the California Labor Code Section 1102.5 which prohibits an employer from retaliating against an employee for reporting criminal or unlawful activity.”

Labor Roundup

University-Owned Hotel Housekeepers Stage 24-Hour Strike in Favor of Union Representation

Housekeepers at the Hilton Boston Cambridge Hotel staged a 24-hour strike protesting that the hotel has not recognized the UNITE HERE Union Local 26 as their bargaining representative. The hotel is owned by Harvard University. The university stated that it is not the employer of the employees in question and therefore not a party to the unionization process. Nonetheless, Harvard encouraged the parties to undertake a fair election process, either secret ballot or card-check, but not expressing a preferred avenue.

UAW Seeks Recognition as Bargaining Representative of Grad and Research Assistants at Two NYC-Based Private Colleges

A United Auto Workers (UAW) affiliate claims to have authorization cards signed by 1,700 of the 2,800 graduate and research assistants at Columbia University in New York City and is seeking voluntary recognition by the university as the employees’ union representative. UAW is following up on NYU’s decision of a year ago to remain neutral on this issue, which resulted in UAW representing graduate and research assistants at the university. Separately, UAW is also seeking voluntary recognition of graduate assistants at the New School in New York City. The New School unit involves some 350 grad assistants.