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Past threats support adverse employment action even without evidence of future dangerousness

When employers learn of threatening conduct by employees they often schedule a fitness for duty exam to determine if that employee presents an ongoing threat. May an employer still discipline for that past threatening conduct if the examiner concludes the employee is not a threat? The Ninth Circuit answered that question yes in yesterday’s opinion in Curley V. City of North Las Vegas.

In December 2008, Curley filed a charge of discrimination with the EEOC, alleging that the City had failed to accommodate his hearing impairment and that it was retaliating against him for having filed a prior charge of retaliation and race and age discrimination. The next month he requested a new accommodation for his hearing loss, which the City also rejected. Instead the City recommended that he use dual hearing protection. Shortly after this Curley responded inappropriately to a coworker’s request that Curly remove his hearing protection so they could talk about a work related task. The City placed Curly on leave and started an investigation into his behavior, which included a fitness for duty exam. While the examiner concluded that Curly was fit for duty and not a danger, the investigation found that Curley had repeatedly threatened coworkers, supervisors, and their families. This included threats of violence.

After a hearing, the City discharged Curley for his past threatening behavior as well as other workplace misconduct uncovered in the investigation. His subsequent claim for ADA discrimination and retaliation was dismissed by the District Court on summary judgment. In upholding the District Court, the Ninth Circuit only addressed the employer’s nondiscriminatory reasons for termination, assuming for that purpose that Curley could establish a prima facie case of retaliation and discrimination. To support its termination decision, the City cited Curley’s past threatening behavior as well as the other misconduct uncovered by the investigation. Curley argued that the  fitness for duty findings sufficiently contradicted  the stated reasons for his termination that a jury trial was required to determine the true motivation for the employers action. The court rejected that argument. According to the court:

“The City’s notice of termination specifically relied on Curley’s history of intimidating coworkers. Nothing in the fit-for-duty evaluation addressed that history. Thus, even if the City had Curley evaluated to determine whether he posed a danger to other employees, the City represented that it fired him for past threats, not for the potential of future violence. Curley presented no evidence that the City’s reliance on past threats was actually pretext for discrimination.”

Employment litigators are advised to read footnote 3 to the opinion. In it Judge Friedland details when a plaintiff’s successful attack on one of an employers proffered nondiscriminatory reasons for an adverse employment action is sufficient to undermine all the employers reasons. In this case the court concluded that even if plaintiff’s attack on the past threat reason were successful, that argument did not undermine the remaining reasons offered by the employer, providing a second reason to affirm the District Courts ruling.

Supreme Court Preview – October 2014 Term

In less than two weeks the U.S. Supreme Court will again start holding oral arguments. One of the first cases up is a search and seizure case!

Below are cases accepted for review which may be of interest to government litigators and their clients. Each case is linked with its docket on the Scotus Blog, where you can access the briefs. If available, a link to the Legal Information Institute’s argument preview has also been provided.

Heien v. North Carolina – Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.
Argument: October 6, 2014

Holt v. Hobbs – Does a prison policy that restricts beards on inmates violate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).
Argument: October 7, 2014

Dart Cherokee Basin Operating Company, LLC v. Owens – Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal.
Argument: October 7, 2014

T-Mobile South, LLC v. City of Roswell, GA – Must a decision denying a request to place, construct, or modify a cell tower state the reasons for the denial, for a state or local government to satisfy the Communications Act’s “in writing” requirement.
Argument: November 10, 2014

Young v. United Parcel Service – Whether, and in what circumstances does the Pregnancy Discrimination Act require an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
Argument: December 3, 2014

Reed v. Town of Gilbert, Arizona – whether a municipal sign ordinance, which differentiates between certain types of temporary noncommercial signs, is consistent with the First Amendment.
Argument: Not Yet Scheduled

Mach Mining v. Equal Employment Opportunity Commission – Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.
Argument: Not Yet Scheduled

Will that employment release land you in more trouble, the EEOC strikes out!

A few months back I posted on this subject after the EEOC sued CVS over terms of its severance agreement which are in common use. Now comes word that the District Court has dismissed the EEOC lawsuit for failing to state a valid claim. No written decision has been issued yet, but your can find more details, including links to the briefs, at Eric Meyer’s The Employer Handbook blog. His excellent blog first alerted me to the original lawsuit.

Will that employment release land you in more trouble?

The Ohio Employer Law Blog reports that the EEOC has just filed suit against CVS Pharmacy claiming its standard severance agreement amounted to retaliation for exercise of protected employment rights.  This claim is based on the EEOC’s belief that the agreement potentially restricts employees from filing charges or participating in employment related investigations.

From a review of the complaint it appears that the CVS agreement is similar in form to agreements often used in Oregon and Washington.  The one exception is the cooperation clause, which requires the employee to report any “subpoena, deposition notice, interview request, or other inquiry” they receive seeking information about CVS.  While this is only a lawsuit,  its filing suggests this to be an area of interest to the EEOC, and increased risk to employers. Employers will need to carefully weigh this risk in considering how broadly an employment release is drafted.

Thanks to Eric B. Meyer of the Employers Handbook Blog for bringing this to my attention.

Two Title VII Wins for Employers

Today the U.S. Supreme Court issued opinions in University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University.  Both decisions are employer wins.

University of Texas addressed the causation standard a plaintiff must meet to prevail on a Title VII retaliation claim.  In that case the Fifth Circuit had held that plaintiff was entitled to prevail as he established at trial that retaliation as a motivating factor in an adverse employment action.  The Supreme Court rejected that standard, instead holding that plaintiff must show that retaliation was the but-for cause of the challenged employment action.

In Vance the court limited the class of employees considered supervisors for the purpose of imposing strict liability on an employer for coworker harassment.  Vance held that to be a supervisor the harasser must have the authority to take tangible employment actions against the victim.  The court went on to identify hiring, firing, failure to promote, reassignment with significantly different responsibilities, or significant changes in benefits as the type of employment actions considered “tangible” for the purpose of this definition.

The Ninth Circuit has adopted a less rigorous causation standard for retaliation cases than called for under University of Texas.  That will now change.  From a quick check of Ninth Circuit cases the impact of Vance was unclear.

Oregon Supreme Court Maps Path to Avoid Open Ended Statutory Contracts

Over the last several years the State of Oregon and its local governments have been faced with serious challenges to their ability to rein in the spiraling costs of employee benefits.  The most prominent of these is the current PERS mess.  This problem has its genesis in well-intentioned legislative actions taken years ago to provide public employees medical and retirement benefits.  As the cost of these benefit programs spiraled out of control, attempts to rein them in have been met with arguments that the statute or ordinance providing the benefit was a contract enforceable by the employees.  Typically the employees won this argument.

James v. Clackamas County contains all the above elements.  In the mid-80’s Clackamas County adopted an ordinance to provide health care benefits to retired sheriff’s office command officers during the gap between retirement and Medicare eligibility.  The key difference? A wise County Counsel anticipated this promise may become too expensive to keep.  The solution? The ordinance created a fund to pay the benefits which received a fixed percentage of command officers’ compensation.  It also made the payment of benefits contingent on an adequate balance in the fund.

Fast-forward 20 years.  The increase in healthcare costs quickly outpaces the fund’s ability to pay.  Despite various stopgap efforts by the County, by March 2005 the fund balance was insufficient to pay that month’s premiums.  In response, the County abolished the fund, creating a new one that provided more limited benefits.

James, a retired command officer, sued claiming breach of contract.  The trial court agreed with James, but the Oregon Court of Appeals reversed.  The Oregon Supreme Court accepted James’ petition for review, setting up today’s decision. In it Justice Balmer applies basic rules of contract construction to resolve the dispute. According to the court:

“. . .  the 1985 contract created a fund to provide insurance benefits to certain retirees and that it expressly made the obligation to pay the 1985 level of benefits contingent on the availability of ‘sufficient funding in said fund’ to provide those benefits. The source of that ‘funding,’ according to the contract, was the county’s payment into the fund of one percent of compensation paid to current command officers, increased to three percent by the 1989 county board order. By March 2005, the Command Officers Fund did not have sufficient funds to pay the next month’s insurance premium under the 1985 contract. Because the funding in the Command Officers Fund was not sufficient to provide the 1985 level of benefits, the county was not contractually obligated to provide those benefits. Accordingly, the county’s failure to provide that level of benefits was not a breach of its contract.”

Note: Counsel representing governmental entities should review their clients’ legislative enactments for promises of this nature and consider having them amended to provide for a similar limit on benefits not yet vested.

Disclosure: The author represented the Clackamas County at trial, and assisted with briefing before the Court of Appeals. Susan Marmaduke, of Harrang Long Gary Rudnick P.C., represented the county in the successful appeal, both before the Court of Appeals and in the Supreme Court.  Hats off to Susan!  Hats off also to Dave Anderson, who advised the County on the fund transition and took an active role in this litigation.

Can Coworkers Conspire for Purposes of Section 1983?

It’s not unusual for civil rights actions to include claims that the defendants conspired to violate the plaintiff’s rights. Nahmod Law has an interesting post on an Eleventh Circuit case reversing a district court’s order denying coworkers qualified immunity for a § 1983 conspiracy claim. The reason was the Intracorporate Conspiracy Doctrine, which holds a corporation and its employees acting within the scope of their employment are a single actor. This negates the multiplicity of actors necessary for the formation of a conspiracy.
It is unclear if the Ninth Circuit would apply the Intracorporate Conspiracy Doctrine to bar civil rights conspiracy claims involving coworkers. In Portman v. Cnty. of Santa Clara, 995 F.2d 898 (9th Cir. 1993) it avoided the issue in the context of a § 1985 conspiracy claim. In Schmitz v. Mars, Inc., 261 F.Supp.2d 1226 (D. Or., 2003) Judge Brown applied the doctrine to a § 1985 conspiracy claim, which she dismissed. Judge Wake of the District of District of Arizona applied the doctrine in dismissing § 1983 conspiracy claims in Donahoe et al v. Arpaio et al. However, other district courts rejected its application to civil rights claims.

Medical Marijuana Use Not Protected Under the ADA

If an employee can certify that he or she is smoking pot with a doctor’s approval and for a legitimate medical condition does the ADA prevent the employer from taking action against the employee for current use of drugs? Must the employer reasonably accommodate the drug use? The answer to these questions is “no”, at least according to the Ninth Circuit in James v. City of Costa Mesa.  For a fuller discussion of this case check out Up in smoke: Hopes of ADA protection for medical marijuana use are dashed . . . for now, anyway on the  Employment and Labor Insider blog.  Also, remember to check your state and local laws also as this opinion answers the question only under the ADA.

The Challenge of Younger Employees and Technology

According to a recent Cisco survey, one in three college students and young professionals consider the Internet to be as important as air, water, food and shelter. Two out of three would choose having an Internet connection over having a car! So it’s not surprising that 70% of young professionals in the US admitted to breaking their employers’ IT policies, with 2 out of three breaking policy most or all the time!

This is dangerous for government employers for a multitude of reasons, and not just data security and claim exposure. Who wants to face their board/commission/council/tax payers the day after the front page or TV sweeps week story on the bad  web surfing habits of your employees!

Some tips on how you can address these issues (courtesy of legalloudspeaker.com):

• Your employees need to know the rules if you want them to be followed. Have a written IT use policy and post it where it will be seen.  Ask employees to sign a copy. Maybe do this every six months. Better yet, customize the windows log-in screen to be an acknowledgment that the user has read and will comply with the policy.

• You need to train your employees not only on what the rules say but also why they are important. Your young employees are just that – young. They haven’t experienced a lot of workplace trauma yet, so they don’t really understand (or fully understand) why management is so particular on sometimes very ambiguous things (I’m allowed to access LinkedIn but not Facebook – why?). Accordingly, at the same time you teach them the penalties for rule breaking: verbal warning, write-up, suspension, termination, you need to explain what happens to your entity when they break the rules. Translate that to what it means for their future. A lot of employees, not just young professionals, don’t understand how much information about their use of technology is kept by IT, and that it is just a public records request away from being made public. Explain to them how government works, why the rules are in place and why they’re not necessarily management’s preference but are nonetheless management imperatives.

• We all operate off incentives and disincentives, so you can’t expect someone to change their behavior if there’s no incentive to do so. Reward those who abide by the rules and punish those who don’t.

• Remove the opportunity and turn off the magnet that draws them to rule-breaking. Setup workplace-specific security settings that prevent garbage from ever entering your building. Don’t want Pandora, Facebook, or LimeWire? Turn them off. You have this power.

• Over 60% of young employees in the survey said it was the IT department’s responsibility to protect information and devices. This is telling – they’ll do what they can get away with. Accordingly, your IT department needs to be a proactive one that prevents the problem instead of responding to it. This isn’t just a catch phrase. It costs less money to prevent a fire than to put it out and repair the water and smoke damage. The IT department needs to understand what young employees want to get at, what they should and shouldn’t be able to get at, and how to prevent access to those things from inside your walls.

The findings of this survey impact more than IT policy. Anyone hiring or supervising young professionals should read and understand its implications for recruitment, motivation and supervision.

Note: Is your entity prepared for the risks and challenges technology presents in litigation and with public record compliance. The Edward McGlone Law Firm can help. To request more information, click on the contact link found here.

Last Chance Agreement Does Not Make For Cause Employment At Will

Public employees who may be dismissed only for cause possess a property interest in their continued employment which entitles them to due process before they are terminated.  Due process has both pre and post termination requirements.  Pre-termination due process requires that before final action is taken the employee be provided with oral or written notice of the charges against them, an explanation of the employer’s evidence, and an opportunity to present their side of the story.  Employers have a tendency to believe that a last chance agreement does away with all this.  To quote Gershwin, it ain’t necessarily so.

In Walls v. Central Contra Costa Transit Authority, the Ninth Circuit reviewed a last chance agreement that provided “non-compliance with the stipulations will result in your immediate and final termination” and expressly waived grievance and arbitration rights.  Acknowledging that a public employee may waive due process right the court noted that waver must be knowing and voluntary.  It went on to state that federal courts indulge every reasonable presumption against waiver and that the existence of a waiver should not be implied, presumed or lightly found. Applying these standards the court concluded, while plaintiff may have waived his right to post- termination due process, nothing in the agreement overcame the presumption that pre-termination due process had not been waived.  As the employer had provided no pre-termination due process the court reversed summary judgment for the employer and remanded for entry of judgment for the employee including appropriate damages.

This case makes clear the importance of careful wording of last chance agreements.  If the intention is to do away with hearing rights, the agreement must clearly delineate those rights being waived.  The agreement must also be carefully worded to avoid a problem opposite that address in Wall, the conversion of an at will employment into one for cause.

The full opinion can be accessed here