The Higher Ed Workplace Blog

HR and the Courts

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

Fired Employee Gets Jury Trial on FMLA Discriminatory Discharge Claim Resulting From Request for Intermittent FMLA Leave for Lyme Disease

A federal district court judge in Connecticut has granted the plaintiff a jury trial over her claims of Family and Medical Leave Act (FMLA) discriminatory discharge. The plaintiff, who was a former executive with the defendant company, will proceed to a jury trial over her claim that she was discharged after she requested and took intermittent leave to deal with treatment of her Lyme disease. The judge cited the plaintiff’s supervisor’s questions and concerns about her continuing ability to perform her job given her medical condition as a reason for granting the request for a jury trial over allegations of willful violation of the FMLA (Majocha v. Eversource Energy (2018 BL 58106, D. Conn. 3:16-CV-00742 (VLB) 2/21/18)).

The plaintiff had been diagnosed with Lyme disease and had submitted an FMLA request for intermittent leave, which was signed by a doctor who stated that the employee would need weekly treatments and would have flare-ups about twice a month. The company contended that it discharged the plaintiff for poor attitude and failure to complete assigned tasks, both of which were unrelated to her physical condition. However, the court rejected the employer’s defense and ruled that the case should go to a jury for determination. The court pointed to the fact the company had never put the plaintiff on a performance review plan and abruptly fired her when she took her first day of FMLA leave. The plaintiff alleged that her supervisor repeatedly questioned her on how quickly the antibiotics would relieve her symptoms and how Lyme disease would affect her ability to work.

The judge, in sending the case to a jury trial, noted that the “totality of the circumstances” creates weakness, inconsistencies and contradictions in the employer’s proffered reasons for termination.

Heated Workplace Reaction and Name Calling Directed Against White Employee Over Her “Black Lives Matter” Facebook Posts Is Not Racial Harassment

A white employee who touched off a heated workplace debate on the Black Lives Matter movement filed suit against her employer and coworkers alleging racial harassment (Squitieri v. Piedmont Airlines Inc. (2018 BL 52931, W.D.N.C., No. 3:17CV441, 2/16/18)). The plaintiff questioned the Black Lives Matter movement in a personal Facebook post, claiming the movement “stokes the fires of racial tension and hate” with “[expletive] posts about cops.”

Several employees fired back on Facebook and in a document they posted on the bulletin board at work claiming, among other things, that the plaintiff was a “racist.” The plaintiff filed suit in federal court, claiming racial harassment under Title VII. A federal district court judge dismissed the case as without merit. He held the “racist” claim was not racial harassment, as the claim on its face was not about the plaintiff’s race. The judge also noted that this did not amount to a hostile work environment. He concluded that there was no defamation because the racist claim was an opinion and as such cannot be proven to be true or false.

U.S. Court of Appeals Rules Public Employee’s Discharge for Consensual Affair With Another Public Employee Is Violation of Employee’s Right to Privacy

The U.S. Court of Appeals for the Ninth Circuit (covering California, Nevada, Arizona, Idaho, Oregon, Washington and Montana) ruled that the discharge of a female police officer for a consensual affair with another officer, which did not affect her job performance, was an unconstitutional breach of her right to privacy (Perez v. City of Roseville (9th Cir. No. 15-16430, 2/9/18)).

The three-judge panel overturned a trial court’s decision dismissing the case on summary judgement, holding that the plaintiff has a right to a jury trial of the claimed breach of her constitutional right to privacy. The plaintiff, who was separated from her husband at the time, engaged in a consensual affair with another officer who was aseparated from his wife at the time. The wife of the other officer complained to the police force about the affair, alleging that it was taking place while both were on duty, and an investigation ensued. The investigation concluded that the two officers had engaged in a consensual affair, but there was no finding of on-duty misconduct. Both officers were reprimanded for the affair, and the plaintiff was eventually discharged for alleged unsatisfactory job performance. The appeals court ruled that she is entitled to a jury trial on the issue of whether the real reason for her discharge was the consensual off-duty affair.

The Fifth Circuit (covering Texas, Louisiana and Mississippi) and the Tenth Circuit (covering Colorado, Utah, New Mexico, Wyoming, Kansas and Oklahoma) disagree and have dismissed similar allegations of constitutional impropriety for discharge of a public employee for an off-duty, private, consensual affair. The split in circuits may be headed to the U.S. Supreme Court for resolution.

U.S. Court of Appeals Rules No First Amendment Protection for Whistleblowers Who Report On-the-Job Misconduct or Corruption

The U.S. Court of Appeals for the Tenth Circuit (covering Colorado, Utah, Wyoming, New Mexico, Kansas and Oklahoma) has ruled that a public employee who is a whistleblower only has a First Amendment right to protection where the whistleblowing activity is clearly outside of his or her job role and the individual can prove he or she spoke as a private citizen with no job responsibilities attached (Knopf v. Williams (2018 BL 73182, 10th Cir., no. 17-8025, 3/15/18)). The appeals court reversed the decision of the trial court not to grant summary judgement and dismissed the case.

The case involved a city planner whose job was not renewed by the mayor after the employee had complained about possible collusion between the mayor and others in the improper funding of a city project. While the city planner was not the point person on the project when he complained about improprieties, he had been the point person on the project for the previous 30 years.

The court ruled that, in order to be protected by the First Amendment, the burden is on the employee to prove that he/she spoke as a private citizen and not as part of his/her job responsibilities.

The court ruled that in this case, the plaintiff did not show that the mayor should have known that his email to the city attorney complaining of the alleged improprieties was at that point outside of his job responsibilities, when it had been within his job responsibilities for the past 30 years. The court noted that the plaintiff could not point to a law or case which definitively showed that when he wrote the email it was clearly outside his overall job responsibilities, even though he had ceased to be the “point person” on the project. The court concluded that as city planner, he still had some responsibility for the project, and therefore could not successfully assert First Amendment protection.


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