Legal Watch - June 14, 2017
June 14, 2017

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

Sheriff’s Deputies Fired for Living With Women Before Their Divorces Were Final Lose Constitutional Claim That They Were Denied Their Right of Free Association  

The Fifth Circuit U.S. Court of Appeals (covering Texas, Louisiana and Mississippi) recently dismissed two Louisiana sheriff’s deputies’ lawsuit that they were wrongfully discharged in violation of their constitutional right of free association when they were fired because they were living unmarried with their new families-to-be before their divorces with their respective wives were final (Coker v. Whittington (2017 BL 142467, 5th Cir., No. 16-30679 5/23/17)). The plaintiffs’ counsel says an appeal to the full Fifth Circuit is possible. The deputies claimed that they were denied substantive due process rights when the sheriff fired them both when they disobeyed the sheriff’s directive that they both cease living with women who weren’t their respective legal spouses.

The deputies were fired for breaching the sheriff department’s code of conduct, which prohibits behavior which “would reflect unfavorably” on the sheriff’s office. The sheriff’s department argued that “flouting” legally sanctioned relationships of marriage and family could “besmirch” the department’s reputation and hinder its ability to maintain public credibility. The plaintiffs argued that they were fired because they were participating in private sexual decisions made by consenting adults.

The appeals court ruled that government employees surrender “some” of their constitutional protections when they choose public service. The court concluded that “sexual decisions of consenting adults take on a different color when the adults are law enforcement officers.”  

Federal Court Rules for the First Time That the ADA Applies to Transgender Worker’s Gender Dysphoria Disability

In a first-of-its-kind ruling, a federal district court in Pennsylvania has ruled that a transgender former employee may sue under the Americans with Disabilities Act (ADA) alleging mistreatment and discriminatory discharge based on her gender identity-related disability, gender dysphoria (Blatt v. Cebela’s Retail Inc. (2017 BL 166978, ED Pa., No. 5:14-cv-04822 5/18/17)). In the past, transgender discrimination cases have been filed only under the Title VII sex discrimination provisions, which prohibit discrimination based on sex or traditional gender stereotypes.

The judge in this case ruled that the ADA exception, which excludes ADA coverage of “gender identity disorders,” was meant to apply to homosexuality, bisexuality or disabling conditions associated with illegal or harmful conduct, such as pedophilia or voyeurism. He concluded that the exclusion does not apply to the disability associated with transgender individuals known as “gender dysphoria.” The American Psychiatric Association defines gender dysphoria as a conflict between a person’s physical or assigned gender and the gender with which he or she identifies.

Court of Appeals Sides With Texas Professor in Reviving His First Amendment Free Speech Claim After He Was Demoted for Allegedly Criticizing Tenure Policy

The Court of Appeals for the Fifth Circuit spoke out on yet another First Amendment case recently, this time siding with the plaintiff, who was an untenured professor at Texas Tech University. The professor, who had his First Amendment complaint dismissed by the trial court, was demoted by the university allegedly because he wrote articles and spoke out generally criticizing the university’s tenure system. 

The trial court dismissed the case, holding that since the matters discussed were part of his job duties he had no First Amendment protection. The appeals court reversed the decision, holding that he met the applicable Supreme Court standard, as he spoke on a matter of public concern as a private citizen and there was no reason to conclude that writing articles and speaking to reporters were part of his job duties (Wetherbe v. Texas Tech University (2017 BL 184747, 5th Cir., No. 16-10458, unpublished, 6/1/17)). 

The professor’s anti-tenure articles appeared in the Harvard Business Review and The Wall Street Journal. The court held that the fact that the articles appeared in these widely-read publications indicated that the topic was a matter of public concern. The court went on to conclude that since there was no specific job duty involved, regardless of his personal stake in the issue as a non-tenured professor, he is entitled to a trial over whether he was demoted because of his First Amendment protected speech. 

Fire Investigator Allegedly Fired for “Racially Insensitive” Facebook Posts Receives $1.5 Million Jury Verdict Holding That Facebook Was a Pretext for Unlawful Whistleblower Retaliation

A federal district court jury recently rejected as a pretext the stated reason for firing a fire investigator, i.e. her Facebook posts were racially insensitive. The jury found that the real reason for the discharge constituted an unlawful retaliation against her as a whistleblower where she had questioned safety and health issues over a new building the fire department was getting ready to move into. The jury awarded the plaintiff $1.5 million in damages (Eschert v. City of Charlotte (W.D. N.C., No. 3:16-cv-00295, verdict: 5/11/17)). 

The plaintiff had questioned on Facebook why public officials’ response to police killings of white victims was not comparable to responses when the victim was black. Her post claimed that white or black, the response of public officials to such events should be equal, stating, “If you are a thug and worthless to society, it’s not race — you’re just a waste no matter what religion, race or sex you are.” She was terminated allegedly because the post damaged her credibility and the impartiality of the fire department. 

She sued, claiming that the Facebook post was a pretext for the real reason she was fired, which was her whistleblower complaints about health and safety issues associated with the new building the fire department was moving into. Her whistleblower complaints prompted an investigation by the city council, which was embarrassing to fire department leadership. The jury agreed with her allegations and awarded her $1.5 million in damages. 

Tufts University Grad Research and Teaching Assistants Vote to Unionize

A unit of graduate research and teaching assistants at Tufts University have voted by mail ballot supervised by the National Labor Relations Board in favor of being represented by the Service Employees International Union (SEIU) Local 509. The student worker unit includes graduate students who attend the School of Art and Sciences and the School of Museum Fine Arts at Tufts University. These grad student workers join part-time lecturers and full-time non-tenure-track teachers at Tufts University who joined Local 509 in 2013.