Legal Watch - May 4, 2016
May 4, 2016

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

Public Employee’s First Amendment Retaliation Claim That Demotion Resulted From Employer’s Suspected but Mistaken Conclusions About His Political Beliefs Goes to Jury Trial

The United States Supreme Court, in a recent 6-2 decision, reversed a court of appeals dismissal of a public employee’s First Amendment retaliation claim, holding that the former police officer has the right to take his claim to a jury trial (Heffernan v. City of Patterson (2016 BL 131602, US No. 14-1280, 4/26/16)).

The plaintiff was seen by a fellow police officer picking up a campaign sign favoring the opponent of the incumbent mayor and was demoted from detective to foot patrol as a result of his action, which was interpreted as support for the mayor’s rival. The plaintiff in actuality was picking up the sign for his ailing mother who wanted it for her yard but could not travel to obtain the sign herself. The plaintiff had no views regarding the election and campaigned for no one. The court of appeals dismissed the case, concluding that the plaintiff took no action that was protected by the First Amendment and therefore could not have been retaliated against because of First Amendment-protected activity.

The Supreme Court reversed, holding that the public employer’s motivation is pivotal in determining whether there is a valid First Amendment claim. The Court concluded with Justice Stephen Breyer writing, “When an employer demotes an employee out of a desire to prevent the employee from activity that the First Amendment protects, the employee is entitled to challenge that action, even if as here the employer makes a factual mistake about the employee’s behavior.” Justice Clarence Thomas dissented along with Justice Samuel Alito, arguing that because the plaintiff engaged in no First Amendment-protected activity, there could be no cause of action. Justice Thomas concluded, “Demoting a dutiful son aiding his elderly, bedridden mother may be callous, but it is not unconstitutional.”

Court Rules Request for Unlimited Light Duty Not a Reasonable Accommodation

An appeals court recently dismissed a Florida county sheriff officer’s Americans with Disabilities Act (ADA) claim alleging he was terminated and denied a reasonable accommodation under the ADA when the county refused his request to extend his light duty beyond the policy’s maximum of 270 days (Frazier-White v. Gee (11th Cir. 2016 BL 109353, No. 15-12119, 4/17/16)).

While the courts have held that an employer can violate the ADA by maintaining an inflexible light duty policy to avoid ADA responsibilities, here the employer maintained a reasonable light duty policy with a 270-day limit. The court held that applying the time limit was not unreasonable and that since the employee could offer no timetable on his return to regular work, his request amounted to a request for unlimited light duty as a reasonable accommodation. The court ruled that as a matter of law, such a request is not reasonable and therefore it is not an ADA violation to refuse the request.  

Appeals Court Approves EEOC’s Investigation of Charges Brought by Undocumented Worker and Broad Subpoena of Employer Practices Related to All Hispanics

A recent court ruling allows the EEOC to investigate individual and class national origin discrimination and retaliation claims against an employer even though the charges were filed by a worker who was unauthorized to work in the United States. The Court of Appeals for the Fourth Circuit ruled in favor of the EEOC’s request to enforce a pending subpoena against the accused employer (EEOC v. Maritime Autowash (4th Cir. No. 15-1947, 4/25/16)).

The appeals court refused to rule on the issue of whether the EEOC could ultimately provide the unauthorized worker with remedies or other relief, holding it would be premature to address substantive coverage issues when the only issue before the court is whether the EEOC has the power to undertake the probe under Title VII of the Civil Rights Act. On that issue, the court ruled that Title VII defines “employee” broadly and that nothing in the statute bars undocumented workers from filing complaints.  

Disabled School Principal’s Request for Transfer as a Reasonable Accommodation Cannot Include Promotion

A school principal who was disabled after an altercation with an unruly student and could not continue in her position was entitled as a reasonable accommodation to transfer to a comparable open position within the school district but not to an open position that would be considered a promotion. The principal in question requested a transfer to either an open grant administrator position or alternatively to an open Title I coordinator position. Both were 12-month positions paying a higher annual salary than her 10-month position as a school principal. The court dismissed the case, holding that the ADA never requires transfer to a promotion as a reasonable accommodation (Brown v. Milwaukee Board of School Directors (2016 BL 102662, E.D. Wis., No. 2:13-cv-00747-RTR)).

The plaintiff had argued that both transfer requests were to comparable jobs, and if the employer did not see them as comparable, it was up to a jury to decide whether they were or were not. The federal judge rejected the argument, holding that a reasonable accommodation can never involve required transfer to a better job. The judge ruled that both open job alternatives involved significantly more pay, were 12-month positions, and were more prestigious because they involved responsibility for the entire school district and not just one school. Therefore, the judge concluded that the alternatives constituted a promotion and that as a matter of law the ADA does not require transfer to a promotion as a reasonable accommodation.