Legal Watch - January 14, 2015
January 14, 2015
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
The NLRB held recently that employees who boasted on Facebook of potential, planned insubordination and disruptive workplace conduct lose the federal law protection for collective action and can be discharged for such posts. The NLRB general counsel argued that the discharge should not stand and claimed that the Facebook post was not serious. The NLRB rejected that argument, holding that the employer, a neighborhood teen center providing after-school activities for teens, “was not obliged to wait for the employees to follow through on the conduct they had advocated” on Facebook (Richmond District Neighborhood Center (361 N.L.R.B. No. 74,10/28/14)).
The Facebook posts in question were able to be seen by only the employee’s “friends,” which included other employees. Management discovered the posts when other employees forwarded management screen shots of the posts. The posts contained the following interchange between two employees: “I’ll be back, but only if you and I are going to be ordering [expletive], having crazy events at Beacon all the time. I don’t want to ask permission. I just want to LIVE. You down?” The coworker responded, “Wednesday I’m going there and tell them my title is ACTIVITY LEADER don’t ask me nothing about the teen center HAH we gone have hella clubs and take the kids.” The first employee responded “Hahahaha! [Expletive] ‘em. Field trips all the time to wherever the [expletive] we want.” The coworker responded, “U [expletive] right see you Wednesday.”
An NLRB administrative law judge dismissed the complaint by the former employees at the initial hearing, and the NLRB general counsel appealed to the NLRB which affirmed the dismissal in favor of the employer.
A federal district court in Texas recently reiterated that the Americans with Disabilities Act (ADA) provides a right to a reasonable accommodation, not the employee’s preferred accommodation. In this case, the plaintiff had a condition which required he visit the restroom frequently. His employer provided him with the opportunity to take bathroom breaks “whenever he desired” given his disability and emphasized that he could take as many restroom breaks during the day as he needed. After the plaintiff had a disagreement with his immediate supervisor (unrelated to his disability or the accommodation), he requested as his preferred accommodation that he be transferred to a different supervisor and if necessary another job (Gordon v. Acosta Sales and Marketing Inc. (2014 BL 360979, WD Tex., No. 13-00662, 12/22/14)).
There was no evidence that the plaintiff was restricted from using the restroom or that frequent use was a problem of any kind. Both parties conceded that the plaintiff was able to meet all the essential elements of his job with the accommodation already provided. The plaintiff’s subjective thoughts that the interactive accommodation process was insufficient because the transfer accommodation was rejected simply do not to state a violation of the ADA.
An Iowa appellate court affirmed the trial court’s dismissal of a sexual harassment lawsuit brought by a female employee who was discharged after striking a coworker who also happened to be her ex-lover following an altercation at work. The plaintiff claimed she struck her former lover after he called her a sexually derogatory word. She claimed that the statement contributed to a sexually hostile work environment and that she was terminated as a result of her objection to the hostile work environment.
The court of appeals rejected her argument, holding that she was discharged for a nondiscriminatory reason — striking another employee — and therefore cannot prove discrimination or unlawful retaliation. The appeals court panel affirmed the dismissal 2 to 1. The dissenting judge concluded that the plaintiff was in fact terminated for her reaction to “unwelcome” sexual conduct which also made the workplace a sexually hostile work environment (Roche v. Davenport Cleaners, Inc. (2014 BL 363583, Iowa Ct. App., No. 14-0140, 12/24/14)).
The appeals court concluded that the evidence supported that the discharge was not a result of sexual harassment. The court pointed to the fact that the plaintiff and the coworker had a consensual “on and off affair.” When the affair finally ended for good, the two employees continued to argue in the workplace. The appeals court concluded that the plaintiff “gave as much as she got.” The plaintiff was terminated after she struck the plaintiff in the face following his accusation that she gave him a sexually transmitted disease. The employer terminated her employment following the physical blow and sent the coworker home for the day because of his comments. The employer said it terminated her because she “hit first.” The trial and appeals courts agreed. The dissenting appeals court judge found that the plaintiff was baited into hitting the coworker due to his sexually hostile comments.
A black female former law professor at the University of the District of Columbia School of Law who was denied a tenure has had her case, which was originally dismissed by a federal trial court, reinstated by the court of appeals. The plaintiff had worked for the university in various positions for 20 years. She was denied promotion from an associate professor position to a tenured professorship because of lack of “legal scholarship.” In this case, the appeals court held that the record showed that she had a right to a jury trial, as she presented evidence that a similarly situated white applicant was granted a tenured position at the time her application was denied (Brown v. Sessoms (2014 BL 357761, DC Cir., No. 13-7027, 12/19/14).
The court observed that the law school had three distinct qualifications for tenure: teaching, scholarship and service, noting that the scholarship component required the applicant to include three published law review articles. The plaintiff was denied tenure, as she had only two published articles. Nonetheless, she alleged that a similarly situated white male candidate was granted tenure and had only one published law review article. The law school had credited the white male candidate with other legal contributions which “made up for the lack of scholarship.” The court noted that the law school did not credit the plaintiff with any make-up despite 20 years of “selfless and thankless contributions to the law school.”
The appeals court concluded that the plaintiff and the white male applicant granted tenure were comparable with equivalent qualifications and therefore the plaintiff’s discrimination case should be reinstated and move forward.