{"id":38,"date":"2019-12-09T18:16:06","date_gmt":"2019-12-09T18:16:06","guid":{"rendered":"https:\/\/www.fedbar.org\/labor-employment-law-section\/\/october-2017\/"},"modified":"2019-12-09T18:16:06","modified_gmt":"2019-12-09T18:16:06","slug":"october-2017","status":"publish","type":"page","link":"https:\/\/www.fedbar.org\/labor-employment-law-section\/le\/circuit-updates\/2017-2\/october-2017\/","title":{"rendered":"October 2017"},"content":{"rendered":"

October 2017 Circuit Update<\/strong><\/p>\n

Fourth Circuit
<\/strong>
<\/a>Borzilleri v. Mosby<\/i>, 874 F.3d 187 (4th Cir. 2017). <\/strong><\/p>\n

<\/strong>An Assistant State\u2019s Attorney (\u201cASA\u201d) in Maryland publicly supported a candidate for the Baltimore City State\u2019s Attorney. The ASA\u2019s candidate was not elected. The newly-elected State\u2019s Attorney fired the ASA shortly after taking office due to the ASA\u2019s support for the political opponent. The ASA sued for violation of her First Amendment rights. The district court granted the defendants\u2019 motion to dismiss, ruling that the ASA was a policymaker exempt from the First Amendment\u2019s protection against patronage dismissals. The ASA appealed, and the Fourth Circuit affirmed.\n<\/p>\n

Although government employees generally may not be fired for solely their political beliefs, the Supreme Court\u2019s decisions in Elrod v. Burns<\/i> and Branti v. Finkel<\/i> set forth a policymaker exception to the prohibition on patronage firings. Guided by those cases, the Fourth Circuit applies a two-part test to determine whether a particular position is a policymaking one. First, the Fourth Circuit examines whether the position involves governmental decision making with room for political disagreement. Second, the Fourth Circuit examines the job responsibilities to determine whether it resembles a policymaker, communicator, or someone privy to confidential information, such that party affiliation is an appropriate job requirement.\n<\/p>\n

Under this framework, Fourth Circuit concluded that the ASA was a policymaker. The ASA\u2019s responsibilities included overseeing investigations, prosecuting crimes, and negotiating plea deals. The Fourth Circuit found that these prosecutorial responsibilities were not ministerial, but rather involved the discretion of the ASA. The Fourth Circuit further found that the ASA\u2019s responsibilities were \u201claden with ideological content,\u201d and that there was room for political disagreement regarding how to prosecute each case.\n<\/p>\n

The Fourth Circuit also found that the ASA acted as a liaison between the State\u2019s Attorney\u2019s office and the community, such that the ASA was charged with implementing the elected State\u2019s Attorney\u2019s policies and communicating them to constituents. Accordingly, the Fourth Circuit concluded that the ASA\u2019s dismissal fell within the policymaking exception.\n<\/p>\n

The Fourth Circuit also examined whether the ASA\u2019s dismissal constituted retaliation for expressing a political opinion, in violation of the First Amendment. The Fourth Circuit applied the Pickering<\/i> balancing test to the ASA\u2019s speech. That test requires the Court to balance the interest of public employees in commenting on matters of public concern, the community\u2019s interest in hearing those comments, and the government\u2019s interest in promoting efficiency of public service.\n<\/p>\n

The Fourth Circuit concluded that once the Court found that the policymaking exemption applied, the Pickering balancing test generally favors the government interest in ensuring an elected official\u2019s ability to implement policy. Accordingly, the ASA\u2019s dismissal did not violate her First Amendment rights.\n<\/p>\n

Submitted by:
<\/strong>Emily Erikson<\/strong><\/a>\n<\/p>\n

Paul Sun<\/strong><\/a> <\/strong>\n<\/p>\n


\nFifth Circuit
\n\u00a0
<\/strong><\/a>National Football League Player Association v. National Football League<\/i>, 874 F.3d 222 (5th Cir. 2017).<\/strong><\/p>\n

The National Football League (NFL) suspended Dallas Cowboys football player Ezekiel Elliott from playing six games. The National Football League Players Association (NFLPA) and NFL collective bargaining agreement (CBA) gives a player the right to contest such discipline through arbitration. That arbitration occurred August 20-31, 2017, however the arbitrator did not issue his decision at the close of the proceedings. On August 31, 2017, the NFLPA filed suit and moved for a preliminary injunction of the suspension. On September 5, 2017, the arbitrator issued the decision upholding the six game suspension. On September 8, 2017, the district court enjoined the NFL from enforcing the suspension. Then on September 15, the NFL moved the Fifth Circuit to stay the injunction. The Fifth Circuit found that the district court lacked subject matter jurisdiction; vacated the lower court\u2019s decision; and remanded the case for dismissal.\n<\/p>\n

The Court determined that the suit was premature because the collective bargaining agreement procedures had not been exhausted. The parties contracted to have an arbitrator make a final decision, but that decision had not been issued. Although the NFLPA argued there were final procedural rulings, those rulings were not the arbitrator\u2019s final decision. Elliott did not show it was futile to wait for a final decision simply because he believed the arbitrator would issue an unfavorable ruling. As there was no final decision, Elliott had not yet exhausted the contracted-for remedies.\n<\/p>\n

The Court relied on Meredith v. La. Fed\u2019n of Teachers, <\/e>209 F.3d 398, 402 (5th Cir. 2000), stating that the Fifth Circuit holds that federal courts lack subject matter jurisdiction to decide cases alleging violations of a collective bargaining agreement unless the employee has exhausted the collective bargaining agreement redress procedures.\n<\/p>\n

Finally, the Court turned to whether Elliott\u2019s failure to exhaust his remedies was excused under the repudiation exception. The Court acknowledged that NFLPA took issue with the outcome and fairness of the arbitration proceedings, but determined that NFL did not repudiate the agreement because the NFL did not completely refuse to engage in the process.\n<\/p>\n

Vacated and Remanded for dismissal.\n<\/p>\n

Judge Graves, issued a dissent, writing that there is no explicit requirement of exhaustion in the Labor Management Relations Act and that the alleged violation of the collective bargaining agreement was all that was required to allow the district court to exercise jurisdiction.\n<\/p>\n

<\/a>Patton v. Jacobs Engineering Group, Incorporated<\/i>,___ F.3d ___, 2017 WL 4784586 (5th Cir. October 24, 2017). <\/strong>\n<\/p>\n

On petition for rehearing, the Fifth Circuit withdrew its prior opinion. The Court still affirmed the district court\u2019s grant of summary judgment against plaintiff on his failure to accommodate and hostile work environment claims. However, the Court held that plaintiff\u2019s failure to accommodate claim was an outgrowth of his charge of discrimination, but there was insufficient evidence to prove defendants\u2019 knowledge of plaintiff\u2019s disability where defendants did not attribute plaintiff\u2019s limitation of sensitivity to noise to a physical or mental impairment. The Court further ruled that while a jury could find that the harassment was severe or pervasive enough to alter the terms and conditions of his employment, because plaintiff did not challenge, on appeal, the district court\u2019s finding that he unreasonably failed to avail himself of the defendants\u2019 complaint procedures, he waived that objection.\n<\/p>\n

Submitted by:<\/strong>
<\/strong>Susan Cone Kilgore<\/strong><\/a>
<\/strong>
<\/strong><\/strong><\/em><\/em>
\nSeventh Circuit <\/strong><\/strong><\/p>\n

<\/a>Riffey, et al. v. Rauner & SEIU Healthcare IU. & Ind.<\/i>, 873 F.3d 558 (7th Cir. 2017).<\/strong>\n<\/p>\n

<\/strong>Since 2003, SEIU Healthcare Illinois & Indiana (\u201cthe Union\u201d) has been the exclusive representative of home health care workers employed by the State of Illinois Department of Human Services Home Services Program. The Union represents the interests of all public employees, whether or not they choose to join the Union. Prior to a 2014 decision by the U.S. Supreme Court, the Union was entitled under the terms of its collective bargaining agreement to collect fees from workers who chose not to join the Union (\u201cfair-share fees\u201d). See Harris v. Quinn <\/i>, 134 S. Ct. 2618 (2014).\n<\/p>\n

Reversing both the U.S. District Court for the Northern District of Illinois and the Seventh Circuit, Harris<\/e> held that the involuntary deduction and collection of fees from non-members was a violation of the workers\u2019 First Amendment rights, entitling them to relief pursuant to 42 U.S.C. \u00a71983. The Seventh Circuit remanded the case to the district court, where the current plaintiffs sought certification of a class of \u201call non-union member assistants from whom fair-share fees were collected\u201d prior to the collection ending in response to Harris.\n<\/p>\n

The district court denied the proposed class certification because \u201cthere were likely a significant number of workers in the proposed class whose First Amendment rights had not been injured by the fee collection.\u201d Specifically, workers who chose not to join the Union nevertheless may not have opposed paying the fair-share fee, and accordingly did not suffer a compensable First Amendment injury. The Court agreed with the district court\u2019s analysis and affirmed the denial on this basis.\n<\/p>\n

The Court also upheld the district court\u2019s refusal to certify the class on the additional bases that (1) intra-class conflicts of interest rendered the named plaintiffs inadequate as class representatives, and (2) common questions did not predominate over individual determinations. The Court noted that since the Supreme Court had resolved the substantive First Amendment issue, the only remaining issue\u2014individual damages\u2014was by definition a \u201chighly individualized inquiry\u201d not appropriate for class determination.\n<\/p>\n

Judge Manion concurred in the judgment based only on the latter two justifications. He dissented as to whether the plaintiffs had established a compensable First Amendment injury common to the proposed class. Contrary to the majority, Judge Manion asserted that even a worker unopposed to paying the fair-share fee still experienced injury, stating \u201c[t]heir damages might be nominal, but their First Amendment injury exists all the same.\u201d <\/em>\n<\/p>\n

<\/a>
Forgue v. City of Chicago, et al., <\/i>873 F.3d 962 (7th Cir. 2017).<\/strong>\n<\/p>\n

Plaintiff Ronald Forgue filed suit against the City of Chicago and more than forty individual officers under 42 U.S.C. \u00a7 1983 for First Amendment retaliation, equal protection, civil conspiracy, procedural due process, and related state law claims. The district court granted defendants\u2019 Rule 12(b)(6) motion to dismiss the majority of Forgue\u2019s claims, and the Seventh Circuit affirmed, with the exception of Forgue\u2019s Procedural Due Process Claim.\n<\/p>\n

Forgue\u2019s Due Process claim is based on the Chicago Police Department\u2019s (\u201cCPD\u201d) refusal to provide him with a Retirement Card upon his retirement, allegedly because he did not retire in good standing. A Retirement Card confers lifelong benefits on the bearer, including permission to carry a concealed firearm, the ability to procure benefits such as healthcare, and eligibility to find other employment in law enforcement.\n<\/p>\n

According to CPD, only employees who retire in good standing receive a Card. Whether an officer retires in good standing is at the discretion of the CPD Superintendent. However, Forgue argued that it \u201cwas \u2018the policy and practice\u2019 of the CPD and the Superintendent to issue Cards to police officers.\u201d Making the obligatory reasonable inferences in favor of Forgue, the Court held he plead \u201ca plausible claim that the CPD has an unwritten, de facto custom to grant virtually all retiring employees a Card.\u201d\n<\/p>\n

Submitted by:<\/strong>
Whitney Caldwell<\/strong> <\/a>\n<\/p>\n

<\/strong><\/a><\/a>Thole v. U.S. Bank, National Association<\/i>, 873 F.3d 617 (8th Cir. 2017). <\/strong>\n<\/p>\n

Plaintiffs filed putative class action against the Defendants, challenging their management of the Plan from September 30, 2007 to December 31, 2010. Plaintiffs alleged that the Defendants placed all the Plan assets in a single higher-risk asset class, a strategy that not only exposed the participants to more risk and also benefitted Defendants. Due to Defendants\u2019 investment strategy, Plaintiffs alleged that in 2008 the Plan suffered a $1.1 billion loss. Plaintiffs alleged they lost significantly more money in 2008 than they would had Defendants properly diversified investment. As a result, the $1.1 billion loss reduced the funding status of the Plan\u2014it went from being significantly overfunded to 84 percent underfunded in 2008. Plaintiffs\u2019 claims included failure to monitor the investment of Plan assets and failure to terminate the investment strategy. These failures violated the Defendants\u2019 fiduciary duties under ERISA by exposing the Plan to unnecessary risk of default, failing to diversify plan assets, and breaching its duty of loyalty because the investment strategy benefited Defendants to the detriment of the Plan. Plaintiffs also alleged several violations of ERISA due to conflicts of interest. The Plaintiffs sought to recover Plan losses, disgorgement of profits, injunctive relief, and other remedial relief pursuant to ERISA Section 502(a)(2), 29 U.S.C. 1132(a)(2), and ERISA Section 409, 29 U.S.C. 1109. They also sought equitable relief under ERISA Section 502(a)(3), 29 U.S.C. 1132 (a)(3). Defendants brought a motion to dismiss the Complaint on various grounds, and the district court denied the motion in part. The case went on to be litigated for some time, and then Defendants later renewed their motion to dismiss because the Plan was now overfunded. The district court granted the motion determining Plaintiffs\u2019 claims were moot because the Plaintiffs no longer had a concrete interest in the monetary and equitable relief sought to remedy that alleged injury.\n<\/p>\n

The court of appeals affirmed but on lack of statutory standing, rather than mootness. Relying on Harley v. Minn. Mining & Mfg. Co., 284 F.3d 901 (8th Cir. 2002), the court of appeals held that when a plan is overfunded, a participant in a defined benefit plan no longer falls within the class of plaintiffs authorized under 1132(a)(2) to bring suit claiming liability under 1109 for alleged breaches of fiduciary duties. Similarly, with respect to Plaintiffs\u2019 claim for injunctive relief, the court held that under both 1132(a)(2) and (a)(3), the Plaintiffs still must show actual injury\u2014to the Plaintiffs\u2019 interest in the Plan under (a)(2) and to the Plan itself under (a)(3)\u2014to fall within the class of people Congress authorized to sue under the statute. Since the Plan was overfunded, there was no actual (or imminent) injury to the Plan itself that caused injury to the Plaintiffs\u2019 interest in the plan.\n<\/p>\n

The court of appeals also affirmed the district court\u2019s denial of an award of attorneys\u2019 fees. Applying an abuse of discretion standard, the court of appeals held the record supported the district court\u2019s conclusion that the Plaintiffs failed to produce evidence that their lawsuit was a material contributing factor in the Defendants making the contribution that resulted in the Plan\u2019s overfunded status and any relief that the Plaintiffs sought in their complaint.\n<\/p>\n

In her dissent, Judge Kelly disagreed that the Plaintiffs lacked standing to sue for injunctive relief because the Plaintiffs sought to enjoin the Defendants from breaching their fiduciary duties in relation to the management of the Plan, which falls within the \u201czone of interests\u201d to be protected or regulated by ERISA.\n<\/p>\n

Submitted by:
<\/strong>Frances E. Baillon<\/a> <\/p>\n","protected":false},"excerpt":{"rendered":"

October 2017 Circuit Update Fourth CircuitBorzilleri v. Mosby, 874 F.3d 187 (4th Cir. 2017). An Assistant State\u2019s Attorney (\u201cASA\u201d) in…<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":27,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"kp-content-permissions":[],"class_list":["post-38","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/38","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/comments?post=38"}],"version-history":[{"count":2,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/38\/revisions"}],"predecessor-version":[{"id":441,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/38\/revisions\/441"}],"up":[{"embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/27"}],"wp:attachment":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/media?parent=38"}],"wp:term":[{"taxonomy":"kp-content-permissions","embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/kp-content-permissions?post=38"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}