{"id":43,"date":"2019-12-09T18:16:21","date_gmt":"2019-12-09T18:16:21","guid":{"rendered":"https:\/\/www.fedbar.org\/labor-employment-law-section\/\/december-2018\/"},"modified":"2019-12-09T19:56:16","modified_gmt":"2019-12-09T19:56:16","slug":"december-2018","status":"publish","type":"page","link":"https:\/\/www.fedbar.org\/labor-employment-law-section\/le\/circuit-updates\/2018-2\/december-2018\/","title":{"rendered":"December 2018"},"content":{"rendered":"

\u00a0<\/p>\n

Second Circuit <\/span><\/span><\/b><\/span><\/p>\n

Gorman v. Rensselaer County<\/span><\/i><\/b>, ___F.3d ___, 2018 WL 6367243 (2d Cir. Dec. 6, 2018).<\/i><\/span><\/b><\/p>\n

\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/span><\/i>In Gorman v. Rensselaer County<\/i>, 2018 WL 636-7243 (2d Cir. Dec. 6, 2018), the Second Circuit held that a corrections officer who exposed a sergeant\u2019s abuse of a restricted police database to spy on his ex-girlfriend\u2019s new boyfriend can be retaliated against for his speech act because the law was not clearly-established that this whistleblowing is protected under the First Amendment.<\/span><\/p>\n

<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The sergeant was dating plaintiff\u2019s sister, but the relationship ended when Plaintiff\u2019s brother told his sister that the sergeant was having an affair.\u00a0 Meanwhile, the sergeant went to the eJustice database to check up on the new boyfriend\u2019s criminal history.\u00a0 The eJustice maneuver violated the new boyfriend\u2019s privacy and was against the law; it cannot be used for personal reasons, only legitimate law enforcement reasons.\u00a0 The sergeant was prosecuted for using this restricted database, and he pleaded guilty.\u00a0 Plaintiff, meanwhile, was retaliated against for blowing the whistle on the sergeant.<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Under settled First Amendment law, public employees cannot be retaliated against for speaking on matters of public concern, to be determined by the content, form and context of the speech. Public concern speech relates to any matter of concern to the community.\u00a0 At the same time, public defendants can invoke qualified immunity, which disallows the lawsuit for damages if the case law was not clearly-established at the time.\u00a0 While exposure of official police misconduct is \u201cgenerally of great consequence to the public,\u201d the Second Circuit has also stated that \u201cno authority supports the argument that reporting an alleged crime always implicates a matter of public concern,\u201d such as in Nagle v. Marron<\/i> (2d Cir. 2011), where a teacher did not engage in protected speech when she complained that someone forged her name on an official in-school report.<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Second Circuit holds that Gorman\u2019s speech was not clearly protected under the First Amendment because \u201cthere is no indication that [the sergeant] or the other defendants were engaging in an ongoing pattern of misconduct that might concern the public,\u201d and the sergeant\u2019s \u201cisolated use of a computer program for a private purpose implicated neither public safety nor the use of taxpayer\u2019s money.\u201d Moreover, the majority holds, \u201cthe context was a volatile, intra-family feud that embroiled [the sergeant] and the Gorman siblings,\u201d and plaintiff\u2019s speech \u201cwas calculated to redress Gorman\u2019s personal grievances\u201d against the sergeant, had no \u201cbroader public purpose\u201d and \u201cwas score-settling, and had small practical significance to the public.\u201d<\/span><\/p>\n

Stephen Bergstein, Esq.
<\/span>Bergstein & Ullrich, LLP
<\/span>5 Paradies Lane
<\/span>New Paltz, New York 12561
<\/span>(845) 419-2250
<\/span>www.TBULaw.com<\/a>
<\/span>www.secondcircuitcivilrights.blogspot.com<\/a> <\/span><\/span><\/p>\n

Fourth Circuit<\/span><\/span><\/b> <\/i><\/p>\n

United States ex rel. Grant v. United Airlines, Inc.<\/strong><\/span><\/i>, No. 17-2151 (4th Cir. Dec. 26, 2018), available at <\/strong>http:\/\/www.ca4.uscourts.gov\/opinions\/172151.P.pdf<\/strong><\/a> <\/strong><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0An aviation maintenance technician brought a qui tam action against his former employer, United Airlines, under the False Claims Act (FCA).\u00a0 The employee alleged two substantive violations of the FCA, 31 U.S.C. \u00a7 3729, and also alleged that United unlawfully terminated his employment in violation of the FCA\u2019s anti-retaliation provision, 31 U.S.C. \u00a7 3730(h).\u00a0 United worked as a subcontractor for the Air Force, and was responsible for servicing engines pursuant to certain standards.\u00a0 According to the employee, United certified engine repairs that it knew did not meet these standards, and returned the engines to the Air Force for payment in violation of the FCA.\u00a0 The employee alleged that United terminated his employment<\/a> after he repeatedly complained to management about United\u2019s fraudulent conduct.\u00a0 On United\u2019s Rule 12(b)(6) motion, the district court dismissed all three claims.\u00a0 The district court dismissed the retaliation claim on the ground that the employee did not allege that he engaged in FCA-protected activity, because the employee did not allege that he conducted an investigation or took steps in furtherance of commencing an FCA action before his employment was terminated.\u00a0 The employee appealed.\u00a0 The Fourth Circuit affirmed the dismissal of the substantive FCA claims and reversed the dismissal of the retaliation claim.<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The whistleblower provision of the FCA prohibits retaliation \u201cbecause of lawful acts done by the employee . . . in furtherance of an action under [the FCA] or other efforts to stop 1 or more violations of [the FCA].\u201d\u00a0 Unlike a substantive FCA claim, which sounds in fraud and must meet the heightened pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure, a retaliation claim need only satisfy the notice pleading standard of Rule 8(a).\u00a0 A plaintiff must allege that (1) she engaged in protected activity; (2) her employer knew about the protected activity; and (3) the employer took adverse action against her as a result. <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Before turning to the complaint, the Fourth Circuit clarified the legal standard for pleading protected activity.\u00a0 Prior to 2009, protected activity was limited to acts in furtherance of an FCA action.\u00a0 The Fourth Circuit applied what it called a \u201cdistinct possibility\u201d standard to determine whether there was protected activity:\u00a0 Employees engaged in protected activity when litigation was a distinct possibility, when the conduct reasonably could lead to a viable FCA action, or when litigation was a reasonable possibility.\u00a0 Congress amended the FCA in 2010 to include a second category of protected activity, \u201cother efforts\u201d to stop an FCA violation.\u00a0 The Fourth Circuit concluded that the \u201cother efforts\u201d prong does not require a showing that an FCA action is in the making, and is therefore not subject to the \u201cdistinct possibility\u201d standard.\u00a0 Instead, the Fourth Circuit adopted an objective reasonableness standard:\u00a0 An act constitutes protected activity where it is motivated by an objectively reasonable belief that the employer is violating, or soon will violate, the FCA.\u00a0 A plaintiff satisfies this standard by alleging facts sufficient to show that she believed her employer was violating the FCA, her belief was reasonable, she took action based on that belief, and her actions were designed to stop a violation of the FCA.<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Fourth Circuit concluded that the district court erred by applying the distinct possibility standard.\u00a0 Under the objective reasonableness standard, the Fourth Circuit ruled that the employee alleged protected activity.\u00a0 The employee alleged that he complained internally that United was submitting false claims, and the Fourth Circuit concluded that he acted on an objectively reasonable belief that United was committing fraud.\u00a0 The Fourth Circuit concluded that the employee sufficiently alleged that his complaints were designed to stop United from violating the FCA.\u00a0 The Fourth Circuit also ruled that the employee adequately alleged that United knew about the protected activity, because he alleged that he made internal complaints.\u00a0 Finally, the employee\u2019s allegation that his employment was terminated the day after he told United its fraudulent conduct could result in a catastrophic engine failure was sufficient to plead that United took adverse action as a result of the protected activity.\u00a0 Therefore, the Fourth Circuit concluded that the employee stated a retaliation claim, and reversed the dismissal of that claim.<\/span><\/p>\n

Submitted by: <\/span><\/i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
<\/span>Paul K. Sun, Jr.
<\/span><\/b>Kelly Margolis Dagger
<\/span><\/b>Ellis & Winters LLP
<\/span><\/b>paul.sun@elliswinters.com<\/font><\/span><\/span><\/span><\/a>
<\/b>kelly.dagger@elliswinters.com<\/a>
<\/span>Post Office Box 33550
<\/span><\/b>Raleigh, North Carolina 27636
<\/span><\/b>Telephone: 919.865.7014
<\/span><\/b>www.elliswinters.com<\/font><\/span><\/span><\/a> <\/p>\n

Fifth Circuit <\/span><\/span><\/b><\/p>\n

\n

Johnson v. Halstead,\u00a0 <\/span><\/i><\/b>\u2014 F.3d \u2014- (5th<\/sup> Cir. Dec. 19, 2018) (2018 WL 6627820).<\/span><\/b><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Delbert Johnson is an African American who worked with the Fort Worth Police Department since 1990.\u00a0 In 2005, he was promoted to Sergeant and assigned to the Traffic Division where he was the only African American supervisor.\u00a0 Several years after his promotion, he was approached by an African American officer about an offensive picture, taken by Sergeant Mike Cagle, depicting Sergeant Ann Gates holding a noose around a snowman\u2019s neck.\u00a0 An unspecified officer, not Johnson, reported the picture to Internal Affairs which admonished Gates and Cagle for violation of Department policies.\u00a0 <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Sergeant Stamp was unhappy with the admonishment received by his colleagues and began to isolate and undermine Johnson.\u00a0 These actions included (1) telling other supervisors (a) to watch out for Sgt. Johnson, (b) Sgt. Johnson could not be trusted, and (c) Sgt. Johnson was now their enemy; (2) publicly criticizing Sgt. Johnson to other supervisors, officers, and civilian employees; (3) conspiring with others to boycott certain meetings and assignments overseen by Sgt. Johnson; (4) attempting to sabotage one of Sgt. Johnson\u2019s assignments by trying to convince other officers not to work on a federal grant managed by him; and (5) accusing Sgt. Johnson of stealing money from the grant program, which resulted in three audits and investigations that found no evidence of wrongdoing.\u00a0 Three months after Johnson\u2019s report of race discrimination to Chief Halstead, Sgt. Johnson was transferred from the day shift that he held for eight years to the Second Shift, which Johnson described as \u201cone of the worst shifts in the entire police department.\u201d\u00a0 Chief Halstead and other upper-level officials blocked Johnson from the open position of Jail Sergeant despite the fact that he was the only applicant.\u00a0 <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In response to Sgt. Johnson\u2019s discrimination complaints as well as race discrimination complaints of two other officers, the Fort Worth Police Department engaged an outside investigator.\u00a0 After a ten-month investigation, the investigator released a report finding that the Department \u201ctolerated and allowed a hostile work environment over a three year time period that was based on race and retaliation for [Johnson\u2019s] prior complaints of race discrimination and harassment.\u201d\u00a0 The Report concluded that \u201c[t]he insulting, demeaning and offensive behavior . . . directed toward [Johnson] continued, in part because the department leadership failed to take directed action as required by\u201d Department policies.\u00a0 After that report, Halstead apologized to Johnson and transferred him back to his day shift supervisor position.\u00a0 <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Sgt. Johnson filed suit against Halstead in his individual capacity, the City, and Halstead\u2019s successor in her official capacity as Police Chief asserting asserted civil rights claims under sections 1981 and 1983 for race discrimination, hostile work environment, and retaliation.\u00a0 The trial court granted in part and denied in part Chief Halstead\u2019s motion for judgment on the pleadings, dismissing Johnson\u2019s claims for racial discrimination based on Halstead\u2019s own alleged acts of harassment, but denied it as to the hostile work environment claims based on a theory of supervisory liability; retaliation under section 1981 in response to Johnson\u2019s complaint about the discrimination; and First Amendment retaliation.\u00a0 Citing the Iqbal\/Twombly<\/i> plausibility standard, the Fifth Circuit assessed whether plaintiff\u2019s Complaint included sufficient facts to overcome Chief Halstead\u2019s qualified immunity defense by alleging facts (1) that set forth a constitutional violation and (2) that the violation of rights was clearly established at the time of the defendant\u2019s conduct.\u00a0 <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Fifth Circuit quickly rejected Chief Halstead\u2019s argument that there was no clearly established right to be free from a race-based hostile environment under \u00a71981.\u00a0 The Court then found that Plaintiff\u2019s allegations went well beyond \u201csimple teasing, offhand comments, and isolated incidents\u201d and that Chief Halstead was deliberately indifferent to the racially hostile work environment based on the repeated complaints of civil rights violations followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents.\u00a0 Although the lower court applied the wrong standard to the retaliation claim (ultimate employment decision rather than materially adverse action that might dissuade a reasonable worker from making or supporting a charge of discrimination), the Fifth Circuit affirmed the denial of immunity on that claim, having no difficulty finding that plaintiff satisfied the less stringent standard applicable to retaliation claims.\u00a0 As to the First Amendment retaliation claim, however, the Court found that Plaintiff had not alleged that he made any statement as a citizen on a matter of public concern rather than as an employee.\u00a0 <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Accordingly, the Fifth Circuit affirmed the denial of Halstead\u2019s immunity defense as to the hostile work environment and section 1981 claims, but reversed and granted immunity as to the section First Amendment retaliation claim.<\/span><\/p>\n

Gurule v. Land Guardian, Inc., <\/span><\/i><\/b>\u00a0\u2014 F.3d \u2014- (5th<\/sup> Cir. Dec. 27, 2018) (2018 WL 6802637).<\/span><\/b><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Plaintiffs worked at a Houston nightclub as bottle-service waitresses.\u00a0 They filed suit alleging failure to pay minimum wage and overtime, alleging that their employer systematically diverted tips from them in violation of the FLSA.\u00a0 The trial court granted summary judgment against two of the plaintiffs on the tip diversion\/minimum wage claims, leaving only the third plaintiff\u2019s claim for trial.\u00a0 Over 1\u00bd years before trial, the defendant made an offer of judgment that plaintiff rejected.\u00a0 After a one-day trial, the jury awarded plaintiff $1,131.39 in compensatory damages and the court awarded $25,089.30 in attorneys\u2019 fees.\u00a0 And given that plaintiff\u2019s recovery was less than the offer of judgment, the Court ordered plaintiff to pay defendants $1,517.57 in costs.<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Fifth Circuit affirmed the trial court\u2019s summary judgment against the two plaintiffs who failed to establish a prima facie FLSA claim.\u00a0 The Fifth Circuit also affirmed the district court\u2019s award of $25,089.30 in attorneys\u2019 fees, noting that Plaintiff sought $129,565 based on the lodestar method.\u00a0 After excluding certain work from the lodestar calculation, which reduced the demand to $62,722.80, the court reduced the demand by 60% given that only one plaintiff prevailed and her recovery was less than the rejected offer of judgment.\u00a0\u00a0\u00a0 <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The defendant appealed the trial court\u2019s fee award, arguing that even the reduced award was improper because it was disproportionate to Plaintiff\u2019s damages.\u00a0 Initially, the court found that, because the FLSA defines attorneys\u2019 fees separately from costs, Rule 68 did not preclude a fee award despite the plaintiff\u2019s rejection of a better offer. Agreeing with the Fourth, Ninth and Tenth Circuits, the Fifth Circuit held that the rejected offer should be considered in assessing the reasonableness of an attorneys\u2019 fee award.\u00a0 The Court also rejected the argument that precedent imposed a strict proportionality requirement and noted that the trial court specifically assessed the lack of success and rejected offer in arriving at the fee award.\u00a0 Because the trial court considered the rejected offer in its decision to impose a 60% reduction, the Court affirmed, rejecting the argument that the court abused its discretion because it did not reduce the fees further.\u00a0 <\/span><\/p>\n

<\/span>\n<\/p><\/div>\n

Nall v. BNSF Railway Co.<\/span><\/i><\/b>, \u2014 F.3d \u2014- (5th<\/sup> Cir. Dec. 27, 2018) (2018 WL 6804260).<\/b><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Plaintiff Nall began working as a trainman with BNSF in 1973.\u00a0 He was diagnosed with Parkinson\u2019s disease in 2010. At this time, BNSF provided Nall and his doctor with a medical <\/span>status form listing the job duties of a trainman.\u00a0 After Nall\u2019s neurologist cleared him to continue working, BNSF\u2019s doctor revised the form to include switchman duties different from the trainman duties on the previous form.\u00a0 Nall continued to work with BNSF for the next year and a half without incident.\u00a0 <\/span><\/p>\n

\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In 2012, BNSF gave Nall a letter stating that a co-worker had voiced concern about Nall\u2019s ability to safely perform his job duties, after which BNSF placed Nall on medical leave and required him to obtain a return to work release from the BNSF\u2019s medical department.\u00a0 Nall\u2019s neurologist, neuropsychologist, and occupational therapist all confirmed that Nall could perform the essential job functions.\u00a0 Nall also performed a field test, and the physical therapist who designed it noted that Nall had decreased balance when reaching, a resting tremor, and slow and jerky movement patterns.\u00a0 BNSF then informed Nall that, based on the field tests, he was not approved to return to work.<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Nall filed an EEOC charge.\u00a0 The EEOC investigation concluded that it did not agree with BNSF that Nall was a potential harm to himself or others or that he was incapable of doing his job. The EEOC thus concluded that there was a violation of the ADA.\u00a0 Nall then filed suit under the ADA and for retaliation.\u00a0 Finding no direct evidence of discrimination, the trial court issued summary judgment finding that Nall was not qualified for his position as a trainman, failed to present evidence of pretext, and was precluded from succeeding on his claims because BNSF was entitled to a \u201cdirect threat\u201d defense.\u00a0 <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On appeal, the Fifth Circuit reversed the trial court\u2019s summary judgment on the ADA claim.\u00a0 The Court agreed that there was no direct evidence of discrimination.\u00a0 But applying McDonnell Douglas<\/i>, the Court focused on the trial court\u2019s conclusion that Nall was not qualified for the job because he posed a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.\u00a0 The Fifth Circuit held that the inquiry is not whether it was reasonable for BNSF to conclude that Parkinson\u2019s disease symptoms prevented Nall from safely performing his duties; rather, the question is whether BNSF came to that conclusion via a reasonable process and not via manipulation to achieve BNSF\u2019s desired result of disqualifying him.\u00a0 In other words, if there is any evidence in the record which, if believed, would be sufficient to support a jury finding that BNSF\u2019s procedures for evaluating Nall\u2019s disability were unreasonable, summary judgment would be improper.\u00a0 <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Court affirmed the trial court\u2019s summary judgment dismissing the claim of retaliation, finding that Plaintiff failed to present evidence of a causal link (i.e., that the decisions to keep him on leave was based on knowledge of the EEOC charge).\u00a0 As to the substantive ADA claim, however, the Court concluded that the trial court improperly granted summary judgment after finding that BNSF\u2019s safety concerns constituted a legitimate, non-discriminatory reason to place Nall on medical leave.\u00a0 Citing the numerous medical reports that cleared Nall to work, the comments by BNSF employees, and the fact dispute about the \u201csafety exceptions\u201d during Nall\u2019s field test, the Court held that there were sufficient to create a material fact issue on the question of whether BNSF\u2019s evaluation procedures were reasonable or manipulated midstream to produce a certain outcome.\u00a0 <\/span><\/p>\n<\/div>\n

Submitted by:
\u00a0
<\/em><\/span>Donna Phillips Currault
<\/span>Gordon, Arata, Montgomery, Barnett,
<\/span>McCollam, Duplantis & Eagan, LLC
<\/span>201 St. Charles Ave.\u00a0 40th Floor
<\/span>New Orleans, Louisiana 70170-4000
<\/span>Direct: (504) 569-1862
<\/span>Email:\u00a0 dcurrault@gamb.law<\/a> <\/span><\/p>\n

Sixth Circuit<\/span><\/span><\/b><\/span><\/p>\n

Haddad v. Randall Gregg, Jean Boven, Michigan Department of Insurance and Financial Services, <\/span><\/i><\/b>No. 18-1660 (6th<\/sup> Cir. Dec. 3, 2018).<\/i><\/span><\/b><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In Haddad,<\/i> David Haddad performed Market Conduct Exams of insurers as an Examiner for the Michigan Department of Insurance and Financial Services (DIFS).\u00a0 During an exam plaintiff noted an insurer\u2019s \u201cintra-family exclusion\u201d (IFE), which placed a substantial cap on the benefits a victim could receive.\u00a0 Believing the exclusion to be unfair, plaintiff investigated and educated himself on IFE\u2019s, both within DIFS and by consulting third-party attorneys.\u00a0 DIFS eventually became aware of plaintiff\u2019s activities and, after investigating, terminated plaintiff\u2019s employment.\u00a0 Plaintiff sued in part based upon First Amendment retaliation, claiming he\u2019d been speaking as a private citizen on matters of public concern (the IFE\u2019s).\u00a0 <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0District Judge Neff concluded that plaintiff, though his actions may have been laudable and motivated by the public interest, had nevertheless made statements addressing the very regulatory issues he dealt with in his employment as a DIFS Examiner.\u00a0 Plaintiff had therefore not been speaking as a private citizen, and consequently was not entitled to First Amendment protection.\u00a0 Judge Neff therefore granted Defendants\u2019 motion for summary judgment.<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Plaintiff appealed in pro se, claiming he had acted as a \u201cvirtual private citizen\u201d because his DIFS duties required him to speak in the public\u2019s interest.\u00a0 The Sixth Circuit rejected plaintiff\u2019s \u201cvirtual private citizen\u201d argument, finding that regardless of the characterization plaintiff\u2019s statements had been made pursuant to his official duties.\u00a0 The Sixth Circuit therefore affirmed the District Court\u2019s grant of summary judgment.
<\/span><\/p>\n

<\/p>\n

Kurt N. Sherwood
<\/span>Miller, Canfield, Paddock & Stone, P.L.C.
<\/span>277 S. Rose Street, Suite 5000
<\/span>Kalamazoo, MI\u00a0 49007
<\/span>sherwood@millercanfield.com<\/span><\/a>\u00a0\u00a0\u00a0\u00a0 <\/p>\n

\n<\/p>

Kurt Sherwood focuses on public and private sector labor and employment law issues.\u00a0 He represents cities, townships, colleges and universities, manufacturers, health-care facilities and auto parts suppliers, among others, in such areas as traditional labor, contract administration and negotiation, NLRB, FLSA, EEO and FMLA.<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Eleventh Circuit <\/span><\/span><\/b><\/p>\n

Friedenberg vs. School Board of Palm Beach County<\/span><\/i><\/b>, No. 17-12935 (11th<\/sup> Cir. December 20, 2018)<\/span><\/b>\u00a0\u00a0\u00a0 <\/b><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In Friedenberg vs. School Board of Palm Beach County<\/i>, the Court considered the constitutionality of a policy that required all substitute teacher applicants to pass a drug test as a condition of employment. Generally, a drug test by the government without any suspicion of wrongdoing violates the privacy rights protected by the Fourth Amendment\u2019s ban on unreasonable searches and seizures. These privacy concerns are outweighed, however, in very narrow circumstances \u2014 where the search serves a compelling public interest. Here, the Eleventh Circuit, as a matter of first impression, upheld the lower court\u2019s determination that the School Board\u2019s duty to ensure the safety of millions of schoolchildren in the mandatory supervision and care of the state were compelling concerns to justify requiring all applicants for substitute teaching positions, without any suspicion of wrongdoing, to undertake and pass a drug test. <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Ms. Friedenberg applied for several positions with the Palm Beach County School District: tutor, substitute teacher, and early childhood aide. She was conditionally offered a position as a substitute teacher, pending the results of a full background check and a drug screen. Although Ms. Friedenberg submitted to the fingerprinting required for the background check, she refused to submit to the drug screen. Ms. Friedenberg then filed the underlying action, seeking declaratory and injunctive relief on behalf of herself and \u201c[a]ll job applicants for non-safety-sensitive positions with the Palm Beach County School District.\u201d The district court limited its inquiry to substitute teacher applicants, finding that Ms. Friedenberg had only established standing as to that group. In weighing the applicants\u2019 privacy rights, the court considered the invasiveness and intrusiveness of the testing methods, as well as the number of individuals (and their roles) who had access to the drug test results. The court balanced these rights against \u201cthe special responsibility of substitute teachers for \u2018the care of society\u2019s most vulnerable members,\u2019\u201d concluding that \u201cthe balance of interests strongly favored the policy of suspicionless drug testing.\u201d Denying the preliminary injunction, the district court found that Ms. Friedenberg had failed to establish \u201ca substantial likelihood of success on the merits,\u201d the first element of the four-prong test for injunctive relief enumerated in Palmer v. Braun<\/span>, 287 F.3d 1325, 1329 (11th Cir. 2002) (citing Suntrust Bank v. Houghton Mifflin Co.<\/span>, 268 F.3d 1257, 1265 (11th Cir. 2001)). The matter then came before the Eleventh Circuit on interlocutory appeal.<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Although the suspicionless drug testing of public school teachers is a matter of first impression, the Eleventh Circuit Court looked to prior Supreme Court decisions regarding similar testing in the context of the public school setting. In Vernonia School District 47J v. Acton<\/span>, for example, the Court found suspicionless testing of student athletes to be permissible, noting that \u201cthe Policy was undertaken in furtherance of the government\u2019s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.\u201d 515 U.S. 646, 665 (1995). Similarly, in Board of Education v. Earls<\/span>, the Court held permissible the suspicionless testing of all students participating in extracurricular activities \u2013 not just student athletes \u2013 weighing the students\u2019 privacy interests \u201cin a public school environment where the State is responsible for maintaining discipline, health, and safety.\u201d 536 U.S. 822, 830 (2002). The Eleventh Circuit also considered cases where government employees (adults) who were engaged in safety sensitive tasks, could be subjected to suspicionless drug testing (citing Skinner v. Railway Labor Executives Ass\u2019n<\/span>, 489 U.S. 602 (1989); AFSCME v. Scott<\/span>, 717 F.3d 851 (11th Cir. 2013). Ultimately, the Eleventh Circuit reasoned that: \u201cTeachers do not sacrifice as many rights upon entering a school as students do; and instructing schoolchildren is not as safety-sensitive as operating a railroad. Nonetheless, we find that, in the unique Fourth Amendment context of a public school, teachers are in a sufficiently safety-sensitive position so that guaranteeing a safe and effective learning environment presents a compelling need to justify suspicionless drug testing.\u201d<\/span><\/p>\n

<\/p>\n

Anne Tomasello is an associate with the firm of Scott \u00b7 Wagner and Associates in Jupiter, Florida. \u00a0She handles many facets of employment litigation, but focuses on discrimination and retaliation matters. \u00a0<\/span>Ms. Tomasello truly enjoys the counseling aspect of the legal profession and helping clients navigate through their legal claims.<\/span><\/p>\n

D.C. Circuit<\/span><\/span><\/b><\/p>\n

Browning-Ferris Industries of California, Inc. v. National Labor Relations Board<\/span><\/i><\/b>, __ F.3d __, 2018 WL 6816542 (D.C. Cir. Dec. 28, 2018)<\/span><\/b><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In Browning-Ferris Industries of California, Inc. v. National Labor Relations Board<\/i>, the D.C. Circuit addressed a putative employer\u2019s challenge to the NLRB\u2019s controversial 2015 changes to its joint employer standard and largely upheld the changes.\u00a0 As the NLRB is currently undertaking rulemaking processes to again change the joint employer standard, the decision may not have tremendous impact.<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The putative employer operated a recycling plant, a portion of which was largely staffed by workers hired by a separate staffing agency.\u00a0 While the workers are formally employees of the staffing agency and are supervised by the staffing agency, the contract between the putative employer and the staffing agency imposed several requirements on the staffing agency that allowed the putative employer to control various aspects of the employees\u2019 employment.\u00a0 <\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The court noted that while the National Labor Relations Act sheds no light on the proper joint employer standard, courts and the NLRB have adopted a standard set forth by the Third Circuit under which two entities are joint employers if the each \u201cexert significant control over the same employees\u201d and \u201cshare or co-determine those matters governing essential terms and conditions of employment.\u201d\u00a0 The NLRB in the early 2000s had added additional requirements constricting this test, by looking only to evidence of actual control, as opposed to a reserved right of control, and requiring that an exercise of control be \u201cdirect and immediate.\u201d\u00a0 In the Browning-Ferris <\/i>case, the NLRB abrogated these additional requirements.<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The D.C. Circuit upheld the NLRB\u2019s legal standard but disagreed with its application to the facts.\u00a0 The court held that under common law principles of agency, a party\u2019s right to control and make changes to the terms and conditions of employment of another party\u2019s employees was relevant to the joint employer even if that control was not actually exercised.\u00a0 The court further found that it would defy common sense to only consider control that was exercised directly, as opposed to indirectly through an intermediary.\u00a0 That being said, the D.C. Circuit faulted the NLRB\u2019s application of this standard to the facts.\u00a0 The court pointed out that not every exercise of control is relevant to the analysis and criticized the NLRB for failing to differentiate between exercises of control over \u201cessential terms and conditions of employment\u201d and \u201croutine contract terms\u201d such as a cap on contract costs, global oversight, or an advance description of the tasks to be performed.\u00a0 The court remanded the case to the NLRB to further explain and clarify its analysis.<\/span><\/p>\n

MEK Arden, LLC v. National Labor Relations Board<\/span><\/i><\/b>, __ Fed. Appx. __, 2018 WL 6721352 (D.C. Cir. Dec. 7, 2018)<\/span><\/b><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In MEK Arden, LLC v. National Labor Relations Board<\/i>, the D.C. Circuit upheld the NLRB\u2019s finding that an employer had committed numerous unfair labor practices under the National Labor Relations Act in the midst of a union election campaign in which the employer prevailed by four votes.\u00a0 First, the court upheld the NLRB\u2019s finding that an executive of the employer had solicited and promised to correct grievances held by one of the union representation campaign\u2019s organizers, noting that it is well-established that such promises improperly suggest to employees that union representation is unnecessary and are impermissible in the absence of a past practice of soliciting grievances in a like manner.\u00a0 Second, the court upheld the NLRB\u2019s finding that a work rule, instituted days after the filing of an election petition, that prohibited employees from visiting other areas of the employer\u2019s facility for non-work-related reasons was an unfair labor practice because it was adopted in response to union activity and applied to restrict union activity.\u00a0 Third, the court found that the employer\u2019s instruction that employees not wear purple scrubs that indicated union support was an unfair labor practice.\u00a0 Fourth the court upheld the NLRB\u2019s finding that a manager\u2019s statement to employees that a surveillance system monitored employee conversations was calculated to intimidate employees against voting for the union.\u00a0 Finally, the court found that the employer had enforced a rule against posting non-work-related materials in the break room in a discriminatory manner, prohibiting employees from posing union materials while permitting other non-work-related materials.<\/span> <\/span><\/p>\n

<\/span><\/b><\/p>\n

<\/p>\n

Jack Blum is an associate in the Employment Disputes, Litigation and Arbitration practice at the Washington, D.C. office of Polsinelli, P.C.\u00a0 Mr. Blum represents employers in connection with claims of discrimination, wage and hour issues, the interpretation of employment agreements, the enforcement of restrictive covenants, and misappropriation of trade secrets.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

\u00a0 Second Circuit Gorman v. Rensselaer County, ___F.3d ___, 2018 WL 6367243 (2d Cir. Dec. 6, 2018). \u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In…<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":40,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"kp-content-permissions":[],"class_list":["post-43","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/43","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=43"}],"version-history":[{"count":4,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/43\/revisions"}],"predecessor-version":[{"id":541,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/43\/revisions\/541"}],"up":[{"embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/40"}],"wp:attachment":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/media?parent=43"}],"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=43"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}