Legal Watch - June 29, 2016
June 29, 2016
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
A Pennsylvania state court of appeals affirmed an arbitration award reinstating a teacher who was terminated following a conviction for marijuana possession for failure of the school district to follow the applicable civil service procedures even though the teacher elected to go to arbitration rather than have a hearing before the school board, which was provided for under the civil service regulations (New Kensington-Arnold School District v. New Kensington-Arnold Education Association (2016 BL 186969, 6/13/16)).
Police found marijuana in the teacher’s home during an unrelated investigation, and he was later convicted of marijuana possession. He was suspended from his teaching position the day after the marijuana was found and was terminated following his conviction. The applicable public school code contains a provision that a teacher must receive a list of charges against him or her and an opportunity to be heard before termination. The teacher elected to go to arbitration under the applicable collective bargaining agreement rather than proceed to a hearing before the school board. While the code says that this does not supersede or preempt any provision of the collective bargaining agreement, the collective bargaining agreement incorporates the code by reference to it.
The arbitrator reinstated the teacher because the school district did not provide him with a list of charges against him before termination. The state appeals court affirmed the arbitration award, which the school district had appealed as unenforceable.
A California state appeals court recently affirmed a $16 million jury verdict in an age discrimination case filed by a 64-year-old physical plant manager at a Staples distribution/fulfillment center. The jury initially awarded $26 million, including almost $10 million against the parent corporation, but the trial judge eliminated the $10 million in punitive damages. The appeals court affirmed the remaining $16 million in damages (including $3.2 million in compensatory damages), holding that the former employee had been badly mistreated, including repeated discriminatory discipline and ageist comments by supervisors (Nickel v. Staples Contract and Commercial Inc. (2016 BL 167885, 5/26/16)).
The plaintiff’s testimony that he had been called an “old goat” and “old coot” by his supervisor was backed by other witnesses, including a former manager. They also confirmed that the employee had his workload increased discriminatorily, which caused further unjustified discipline. There was also testimony that the offending supervisor used human resources as his personal tool for unfairly disciplining and removing employees .
A white professor with a history of failing to work constructively with the university’s office that assisted and counseled minority students but maintained a position with the university’s race-neutral office that worked with freshmen from disadvantaged backgrounds and was not hired to head the new office created when the two programs were combined filed a reverse discrimination claim, alleging that the university hired a less qualified, black, female professor to head up the combined office. A federal court jury rejected the white professor’s reverse discrimination claims, crediting the university’s nondiscriminatory reason for not selecting him for the position (Peterson v. University of Florida (N.D. Fla., No. 1:14-cv-00220, jury verdict, 6/3/16)).
While the university conceded that the plaintiff had received a mostly laudatory recommendation for the position, he was criticized for difficulty in working constructively with the minority assistance department in the past. The university claimed he was “difficult and grating” to work with and had made racially derogatory comments in the past, including telling his assistant to stop giving him “BWA,” which he said was an acronym for “black woman attitude.”
The university offered evidence of other racially insensitive if not derogatory comments he had made. He avoided summary judgment, alleging factual disputes. The jury rejected his claims and credited the university’s nondiscriminatory reason for not selecting him (i.e., his racially insensitive and racially derogatory past actions).
The Equal Employment Opportunity Commission (EEOC) has taken up the cause of an HR executive who claimed she was discriminated against because of her religious objection to the hospital’s flu shot requirement (EEOC v. Baystate Medical Center (D Mass., No.3:16-cv-30086, complaint filed, 6/2/16)). It is a novel case for the EEOC, especially given the unusual facts.
The plaintiff worked in the hospital’s administrative services building and did not have contact with patients. However, the hospital required all employees to take flu shots, and those objecting for religious reasons were required to wear a face mask. The plaintiff refused to take the flu shot on Christian religious grounds and was seen frequently taking off her face mask when speaking with people. The plaintiff advised management that she took off her face mask often when people told her that they could not understand her. She was initially suspended, and then told she could not return to work unless she either took a flu shot or promised to wear her face mask all the time. She maintained her objection, and the hospital advised her that it viewed her as having resigned. The EEOC filed suit, alleging that the hospital did not properly accommodate the plaintiff’s religious objection to the flu shot in this instance.
Halfway through 2016, the EEOC reports that workplace harassment on the basis of sex, race and disability continues to account for nearly a third of all charges of employment discrimination. Earlier this year, the EEOC created a 16-member workplace harassment task force led by EEOC Commissioners Feldman and Lipnic. The task force was formed to look into solutions and what can be done to eliminate workplace harassment. On June 20, the EEOC issued a report on the task force findings.