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Advocacy & Compliance News

Legal Watch - October 21, 2015
October 21, 2015

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

Off-Duty Police Officer Insult of Protester Not Subject to First Amendment Free Speech Protection

A police officer from Illinois who called an anti-abortion protester a derogatory name and hurled verbal insults at other protesters while off-duty and was terminated after investigation into this conduct lost his lawsuit alleging retaliation against his First Amendment free speech Rights when the Seventh Circuit Court of Appeals affirmed the decision of the federal trial court, which had dismissed the police officer’s First Amendment claims in favor of the city on summary judgement (Lallowski v. City of Des Plaines (7th Cir., No. 12-3604, 6/17/15)).

The court of appeals concluded that the state’s interest in promoting efficient city services outweighed the police officer’s interests in commenting on matters of public concern. The officer while still on duty on a late-night shift encountered protesters preparing to demonstrate outside a clinic near the end of his shift. He told the protesters not to block traffic or access to the clinic. His interaction with the protesters was tense, especially with one woman. He left the scene and returned after his shift ended. He was recognized by the woman with whom he had earlier interacted and told her that he was now off duty.

While off duty, he argued with protesters about their signs that graphically depicted aborted fetuses. He verbally berated several protesters, calling the woman who recognized him a “fat [expletive] cow.” He called another protester a “psycho” and another a “man hater.” This interaction continued for more than an hour. The police officer before leaving hugged yet another protester and told her he loved her.

The police department investigated the incident, putting the police officer on paid administrative leave. It was concluded that his off-duty conduct was, “harsh, profane, unruly and caused a huge disturbance.” The department made the decision to terminate him as a result of the findings of the investigation. The officer then filed a First Amendment suit, alleging he was terminated because of his speech while off duty and that he was speaking about a matter of public concern.

The court in dismissing his claim applied the standard that public speech is NOT constitutionally protected, even if it addresses a matter of public concern, if the agency’s interest in running an efficient and effective agency outweighs the employee’s interest in commenting on a matter of public concern. Here, the court concluded that the officer’s speech was not constitutionally protected and that although abortion is a matter of public concern, his speech was delivered in the context of “hurling profanity and insults at demonstrators.”      

White Professor Loses Reverse Discrimination Claim, Notwithstanding Dean’s Comment That the Department “Wouldn’t Hire a White Applicant if There Were Qualified Minority Applicants”

A white visiting professor who had applied for a tenure-track position lost his claim of reverse discrimination, notwithstanding evidence that the dean of the applicable school had commented that the department would not hire a white professor if there were qualified minority applicants. The court observed that the dean himself was not involved in the decision to eliminate the plaintiff form the competition and that the plaintiff never submitted evidence to contradict the university’s claim that the non-white candidate chosen for the position was more qualified than the plaintiff (Rahn v. Board of Trustees of Northern Illinois University (2015 BL 307581, 7th Cir., No. 14-2402, 9/23/15)).

The plaintiff was one of 82 candidates for the position. The candidates were whittled down to 10 who would proceed to a telephone interview. The plaintiff had received three votes, which was sufficient to place him in the top 10, and the person ultimately selected had received four votes. The plaintiff’s wife was a member of the search committee. When this conflict of interest was discovered, she was removed from the committee. Another committee member developed a metric to rank the 10 candidates, and based on the metric, the plaintiff did not make the final cut. When this occurred, the plaintiff’s wife was reappointed to the search committee, which ultimately chose the minority candidate.

Although the plaintiff claimed that the dean’s comment was direct evidence of reverse race Discrimination, the court concluded that the dean had nothing to do with the elimination of the plaintiff from the competition, so the claim must fail. Further, the court concluded that the university provided uncontested evidence that the minority candidate was more qualified for the position than the plaintiff.  

Tenured Professor Denied Continuation of Directorship Following Criticism of College’s Alleged Discriminatory Practices Regarding Students and Differing Campuses Has No First Amendment Retaliation Claim

A federal district court in New York dismissed the First Amendment retaliation claim filed by a tenured professor who had his directorship of the college’s honors program revoked after seven years in the position following his on-campus speech criticizing the institution’s allegedly racially discriminatory practices regarding the honors program and the spending of money and resources in a disproportionate way which favored the campus that was predominantly Caucasian. He also criticized the college’s ability to properly evaluate students who were selected for the honors program and raised concerns that the college’s advertisements had racist overtones because they excluded minorities and failed to feature any minorities in speaking roles.

The federal district court dismissed the lawsuit, concluding that the plaintiff failed to demonstrate that he was speaking as a citizen, as opposed to an employee, on a matter of public concern (Epstein v. Suffolk County (Suffolk Community College) (2015 BL 274961. E.D.N.Y., No. 2:14-cv-00937, 8/26/15)). The court concluded that the plaintiff’s job did not require him to evaluate students within the honors program, nor did his job involve the college’s advertising or decisions relating to how each campus received funds, all of which was the brunt of the criticism he raised during the speech. Nonetheless, the court concluded that his speech was a means to fulfill his responsibilities undertaken in the course of his job as a professor and chair of the honors program and therefore not protected as a person speaking as a private citizen.    

Hiring Through a Temp Agency No Bar to Title VII Liability

The Fourth Circuit Court of Appeals joined seven other federal circuit courts of appeals in holding that multiple companies can be the employer of a single employee and thus each responsible under Title VII for discrimination and sex harassment claims. The Fourth Circuit reversed the federal trial court, allowing the plaintiff’s complaint under Title VII to go forward notwithstanding the fact she was hired and paid through a temporary staffing agency (Butler v. Drive Auto Industries of America 2015 BL 226147, 4th Cir., No. 14-1348, 7/15/15)).

The court concluded that the joint employer doctrine is appropriate in today’s modern workforce, where many employees are employed by temporary staffing companies that exercise little control over the employees’ day-to-day activities. The joint employer liability standard is favored by the EEOC. The court held that three primary factors are important in determining joint employer status where the staffing agency pays hires and pays the employees. The factors are (1) which entity has the real power to hire and fire the worker; (2) which entity supervises the worker day to day; and (3) where and how the work takes place.    

More Unionization Activity Among Adjuncts and Grad Students

The United Steelworkers and Point Park University recently announced in September that they had reached agreement on a collective bargaining agreement following the Steelworkers organizing of adjunct professors there. A mail ballot vote to ratify the agreement among adjuncts is still taking place. The Steelworkers union publicly pronounced that it is organizing adjunct faculty at all of the other Pittsburgh-based colleges and universities and claimed that this contract will be the “first of many.”

Separately, contingent faculty, mostly adjuncts, at Barnard College in New York City voted earlier this month in favor of having the United Auto Workers (UAW) represent them in collective bargaining with the college. In an NLRB-supervised mail ballot election, the contingent faculty voted 114 to 11 in favor of UAW representation (207 professors were eligible to vote). On the graduate/research student front, a unit of more than 2,500 grad students at Cornell University in Ithaca, New York, who were members of a formerly independent graduate student union called Cornell Graduate Students United, voted to affiliate with the American Federation of Teachers in order to continue their efforts to organize and pursue bargaining status conferred by the NLRB.