Legal Watch – January 17, 2013
January 17, 2013
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
University CHRO’s First Amendment Retaliation Claim Dismissed
A university chief human resources officer who was fired shortly after writing a newspaper editorial critical of comparisons between the gay rights movement and the civil rights movement has failed in a First Amendment retaliatory discharge claim.
The Sixth Circuit Court of Appeals recently affirmed the federal district court judge’s grant of summary judgment in favor of the university, holding that the plaintiff did not engage in protected speech under the First Amendment and therefore could not sustain a retaliatory discharge claim (Dixon v. University of Toledo (6th Cir., No. 12-3218, 12/17/12)).
The plaintiff in this case had served in various HR positions with the university for approximately 10 years and otherwise had an unblemished record at the institution. There had been some history to gay rights issues on campus, including a prior official editorial by the university president describing the university’s commitment to diversity and an editorial by the vice provost, who with her same-sex partner became the first couple to file for a domestic partnership in Toledo, Ohio. The vice provost was quoted in the local newspaper as saying that opposition to the domestic partnership registry stemmed from “religious beliefs” and that “bigotry in the name of religion is still bigotry.”
Later, an editorial was published in the Toledo Free Press that was critical of the fact that the Medical College of Ohio (part of the University of Toledo) did not have employee domestic partner benefits despite the fact that University of Toledo did, and the author implicitly compared the gay rights movement to the civil rights movement. In response, the plaintiff in the Dixon case wrote her own editorial criticizing the comparison between the civil rights movement and the gay rights movement because of her belief that the “homosexual lifestyle” is a choice, whereas race is genetic and biological.
The Sixth Circuit Court of Appeals specifically found that the plaintiff held a policymaking position at the university and was discharged based on speech related to political or policy issues that directly contradicted several university policies. As such, the court concluded that the government’s (in this case, the state university’s) “interest in efficiency” outweighed the plaintiff’s free speech rights and dismissed her retaliatory discharge claim. Under the Sixth Circuit rule, a public employee’s speech will be unprotected by the First Amendment where the employee is a policymaker and speaks on a matter related to policy of the governmental entity.
The court also rejected the plaintiff’s claim that she was similarly situated and treated differently than the university president and vice provost who also spoke publicly on this issue and were not discharged. The court recognized that the university president spoke consistently with university policy, not criticizing it. The court also concluded that the plaintiff did not present sufficient evidence that the vice provost was similarly situated to her.
Denial of “Light Work” to Pregnant Employee Not a Violation of the Pregnancy Disability Act or ADA
The United States Court of Appeals for the Fourth Circuit recently affirmed the dismissal of a discrimination lawsuit brought under both the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act by a pregnant truck driver against UPS (Young v. UPS (4th Cir., case No. 11-2708, 1/10/13)).
The plaintiff argued that the UPS “light duty” policy, which offers employees who are injured on the job temporary alternative work if they are no longer able to perform the essential elements of their existing job, should also be offered to pregnant employees. The pregnant plaintiff was ordered by her doctor to not lift more than 70 pounds, but lifting boxes of varying weight was an essential element of her truck driving job. The light duty policy was contained in the UPS collective bargaining agreement. The plaintiff argued that refusing to extend the light duty policy to pregnant employees violated the PDA because it treats pregnant employees less favorably than similarly situated non-pregnant employees.
The court unanimously rejected the plaintiff’s argument, holding that Congress did not intend for the PDA to create additional protections for women beyond expanding Title VII to categorize discrimination based on childbearing as sex discrimination. The court concluded that the PDA does not require UPS to apply its light duty policy, which was only applicable to employees who sustained on-the-job injuries, to pregnant workers whose restrictions arose from off-the-job pregnancy, as they would then be treated more favorably than other workers with restrictions caused by other off-the-job injuries or illnesses.
In coming to its conclusion, the Fourth Circuit noted its disagreement with the Sixth Circuit, the only circuit which has allowed such a lawsuit to proceed based on the conclusion that an employee can establish a case of discrimination by demonstrating that another employee who is similarly situated in his or her disability, no matter what the cause, received more favorable treatment. The Fourth Circuit in ruling for UPS noted that one may characterize the UPS policy as “insufficiently charitable,” but lack of charity does not amount to unlawful discrimination.
Federal Court Rules Veganism May Be a Covered Religion Under Title VII EEOC Regulations
A federal district court trial judge recently ruled, in denying summary judgment to a hospital that fired a customer service representative after she refused to receive a mandatory flu vaccination based on her vegan beliefs, that the plaintiff stated a plausible claim of religious discrimination under Title VII (Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio, No. 1:11-cv-00917, 12/27/12)). The federal judge rejected the arguments of the hospital that veganism is simply a social philosophy or a dietary preference that does not fall under the religious discrimination provisions of Title VII of the Civil Rights Act or the Ohio Civil Rights Act.
The plaintiff had worked for the hospital as a customer service representative for 10 years. In years past, the hospital accommodated her belief and did not force her to take the flu vaccination. However in December 2010, the hospital fired her as a result of her refusal to take the vaccination. The plaintiff stated that her vegan beliefs, which prohibit her from ingesting any animal product or byproduct, precluded her from taking the flu vaccination because it is grown in chicken eggs. The plaintiff argued that her termination violated her religious and philosophical beliefs.
In moving to dismiss the lawsuit, the hospital argued that veganism is not a religion for purposes of federal or state civil rights laws. The judge rejected the hospital’s argument, holding that the EEOC regulations define “religious practices” to include “moral and ethical beliefs as to what is right and wrong” when such beliefs “are sincerely held with the strength of religious views.” The judge went on to point out that while the EEOC regulations do not require that the beliefs be widely held, the fact that the plaintiff “is not alone in articulating her views lends credence to her position.”
Campus Police Officer’s Psychological Disability Raises Federal, State Failure to Accommodate Claims
A federal district court judge in California recently denied a California community college’s motion for summary judgment against a campus police officer who had filed federal and state disability discrimination claims against the college after he was terminated for being deemed psychologically unfit “in the near term” for duty (Kesecker v. Marin County Comm College Dist. (N.D. Cal., No. 3:11-cv-04048, 12/31/12)).
The psychologist who performed the fitness-for-duty exam for the college stated that the plaintiff would continue to experience psychological stress for the “foreseeable future” and would be unable to work “in the near term.” The court ruled that this was not enough under the federal ADA or the California Fair Employment and Housing Act, by itself, to substantiate a finding that the plaintiff’s requested accommodation of a limited leave of absence followed by a new fitness-for-duty exam was unreasonable. Accordingly, the court ruled that a jury should decide whether the requested accommodation was reasonable or not.
The court ruled for the college on summary judgment on the plaintiff’s reasonable accommodation claim that he should have been offered an alternative permanent position because the alternative permanent jobs he requested either were not funded or did not exist. However, the court ruled that the plaintiff was also entitled to a jury trial over his other alternative accommodation request that he be offered a “temporary, finite reassignment” to an alternative position.
The court concluded that the college did not cite any case, nor is the court aware of one, in which an employer was excused from providing “a finite leave of absence” because an employee’s disability, while not permanent, was unlikely to allow the employee’s return to work “in the near term.” This decision appears slightly at odds with the longstanding case law that a request for “unlimited” leave does not qualify as a request for a reasonable accommodation. The distinction drawn by the court appears to be narrow. It appears to be the difference between a request for “finite” leave, which could be reasonable, as opposed to a request for “unlimited” leave, which is not reasonable.