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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

Oregon Supreme Court upholds two year statute of limitations for survival and wrongful death actions against public bodies

The Oregon Tort Claims Act establishes a two year statute of limitations for tort actions against public bodies.  This limitation applies notwithstanding any other provision of Oregon law “providing a limitation on the commencement of an action”.  ORS 30.275(9).

In Baker v. City of Lakeside, the Oregon Supreme Court held this statue did not preempt ORS 12.020(2), which allows a timely filed lawsuit to be served up to 60 days after the statute of limitations has run.  The court reasoned that ORS 30.279(9) only preempted statutes that provide a limitation on the commencement of an action, which ORS 12.020(2) did not.

Bell v. Tri-Met, is a survival action that was brought two weeks too late to comply with ORS 30.275(9).  Citing Baker, plaintiff argued the three year survival action statute of limitation should instead apply.  ORS 30.175.  According to plaintiff, that statute was not a limitation on the commencement of an action as it merely tolled the limitation period for one year following death.  The Supreme Court rejected that argument, holding ORS 30.175 to establish a three year limitation period for survival actions which was subject to preemption under ORS 30.279(9).  As the suit was filed after the two year limitation period established by that statute, it was untimely.

Note:  Wrongful death actions are also covered under ORS 30.175 so this decision should equally apply to them.

Regulation of the disposal of towed vehicles is not preempted by federal law.

Tow trucks are motor carriers for the purpose of 49 U.S.C. §14501(c), which preempts state or local regulation of motor carriers transporting property.  That law provides various exceptions permitting the regulation of safety, insurance coverage, price for nonconsensual tows, or requirements for property owner presence when the tow occurs. Not addressed in this scheme is the authority to regulate the disposal of towed vehicles.  The Supreme Court has now ruled that such regulation is not preempted under federal law.  In doing so the court limited the scope of preemption under 49 U.S.C. §14501(c) to the regulation of activities of the motor carrier while it has property in transit.  The court found that transportation ended in this case once the car was delivered to the impound yard.  Once that occurred the state was free to regulate the towing company’s activities, including how it disposed of the vehicle.

The case is Dan’s City Used Cars, Inc., v. Pelky and you can read the full opinion here.

Court Upholds Two Year Statute of Limitations for Survival Actions against Oregon Public Bodies

The Court of Appeals issued its decision today in Bell v. TriMet, finding that survival actions are subject to the Tort Claims Act’s two year statute of limitations.

In Bell, a passenger died from unrelated causes more than a year after he was allegedly injured while exiting a TriMet bus.  No suit was filed prior to his death, so the estate commenced a survival action against TriMet.  That suit was filed outside the two year limitation period provided under the Tort Claims Act (ORS 30.275(9)), but within the three year period provided for survival actions (ORS 30.075).  The trial court granted TriMet’s motion to dismiss, reasoning:

“ORS 30.075 is a statute of limitations. * * * And so it falls under the language there in ORS 30.275(9) that says [‘]or other statute providing a limitation on the commencement of an action.[‘] That’s what 30.075 is.  And it says, notwithstanding that, [‘]an action arising from any act or omission of a public body or [an] officer * * * shall be commenced within two years after the alleged loss * * *.[‘]”

On appeal, plaintiff argued that the survival statute had the effect of tolling the statute of limitations for one year, making it analogous to other statutes that toll the statute of limitations.  Plaintiff pointed the court to Baker v. City of Lakeside, where the Supreme Court found tolling statutes are not subject to ORS 30.275(9)

Find links to access the statutes and opinions referenced in this post on the Resources page of my website.  Congratulations Kimberly Sewell, TriMet’s Director of Legal Services, who briefed and argued this appeal.

Beware of Court Fees

I just returned from the Multnomah County Courthouse where prominently posted was a warning that ORS 21.580 had been repealed as of October 1, 2011 and that lawyers representing public entities should be prepared to pay all fees unless they are able to point to some other exemption.  I hate to admit this was the first I had heard of this, so when I got back to the office I checked the legislative website. Sure enough the court fee bill, HB 2710, repealed that statue.

I loved this statute when I worked for Clackamas County because I could go to our courthouse without having to bring a check or cash.  Problem was that sometimes I had to go the courthouses in Marion, Multnomah and Washington County’s, and it was always a gamble if they were going to make my county pay.  Fortunately, I found ORS 20.180, which grants the state, counties, cities and school district’s (including officers, employees and agents that are parties in there official capacity) a deferral of any court fees that can be recovered under a cost bill.  The deferred fee need be paid only if that fee is included in an award of costs and the adverse party pays the cost bill.  HB 2071 did not repeal this statue.

Keep in mind that Section 5 of HB 2710 requires the caption of many pleadings to contain a citation to the statutory provision establishing the applicable fee.  A table of fees, along with the applicable statutory citation is available on the Judicial Department website. Link

If you want to take advantage of deferral under ORS 20.180, I would suggest that you follow that statutory reference with something like “Fee deferred under ORS 20.180”.