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First Amendment Related

****Editor's Case Alert****

     A part-time village police officer cited and arrested a driver for car insurance-related infractions. The driver was released and the citations voided after several phone calls between the driver's mother, local politicians, and the chief of police. The officer became concerned that voiding the citations may have involved official misconduct. He shared his concerns with other officers and with the FBI. The police chief then fired him. A federal appeals court ruled that his statements to fellow officers and to the FBI were protected under the First Amendment. He was speaking as a private citizen about a matter of public concern. His interest in speaking outweighed the police chief's interest in promoting departmental efficiency. The Village, however, was not liable for the chief's actions, since the chief did not have the authority to unilaterally set departmental firing policy. Kristofek v. Village of Orland Hills, #14-2919, 2016 U.S. App. Lexis 14782 (7th Cir.).

FLSA -- Donning and Doffing

     Active and former park rangers employed by a city Parks Department sued, claiming that they were entitled to pay under the Fair Labor Standards Act for time spent donning and doffing uniforms and equipment such as bulletproof vests and utility belts that they were required to wear which contained handcuffs, mace, and other materials. Overturning partial summary judgment for the employer, the federal appeals court found that, on the current record, it could not conclude that the plaintiffs' donning and doffing of uniforms were not integral and indispensable to their principal job activities. Further proceedings were required to determine first whether the time was nevertheless non-compensable under either the de minimis doctrine or under the terms of a collective bargaining agreement. Perez v. The City of New York, #15-315, 2016 U.S. App. Lexis 14104 (2nd Cir.).

Pay Disputes - In General

     While working for the state Department of Corrections, an officer sustained a knee injury and received workers' compensation benefits, along with assault pay. He later was terminated as medically unfit for duty, and the employer stopped paying assault pay. He sued, seeking a judicial declaration that he was entitled to keep receiving assault pay for as long as he kept receiving workers' compensation. The highest court in Massachusetts ruled that a state employee's right to assault pay ends when his or her employment ends. Assault pay was intended to be a substitute for the use of accrued sick leave. Marchand v. Dep’t of Corr., #SJC-11949, 475 Mass. 1006, 2016 Mass. Lexis 597.

Political Activity/Patronage Employment

     A deputy court clerk challenged her termination by the court clerk for supporting his election opponent as constituting political discrimination in violation of the First Amendment. A federal appeals court found that the defendant was not entitled to qualified immunity, as he had not established that the deputy clerk's job duties made her position confidential or policymaking so that party affiliation and loyalty was required. Lawson v. Gault, #14-2360, 2016 U.S. App. Lewis 12518, 41 I.E.R. Cas. (BNA) 820  (4th Cir.).

Race/National Origin Discrimination

     A HUD employee claimed that his lateral transfer to a different job assignment constituted race discrimination. A federal appeals court upheld summary judgment for the employer because such lateral transfers were not materially adverse employment actions as required to support race and national origin discrimination claims under Title VII. Ortiz-Diaz v. HUD, #15-5008, 2016 U.S. App. Lexis 13980, 129 Fair Empl. Prac. Cas. (BNA) 641 (D.C. Cir.).

Retaliatory Personnel Action

****Editor's Case Alert****

     A city's Superintendent of the Water Department claimed that he was fired in unlawful retaliation for planning to testify against the city in an age discrimination lawsuit. The federal appeals court rejected the city's argument that plaintiff's speech was not speech as a citizen on a matter of public concern and so fell outside the First Amendment's protections. In this case, his sworn statement and imminent testimony were outside the scope of his ordinary job duties, which meant that he was engaged in speech as a citizen for First Amendment purposes. The court also concluded that the retaliation provision of the age discrimination in employment statute did not preclude a plaintiff such as the one in this case from bringing a First Amendment retaliation claim under 42 U.S.C. 1983. Given the substantial difference between the levels of scrutiny afforded age discrimination equal protection claims and First Amendment retaliation claims, the court cannot assume that Congress intended the age discrimination statute to affect the availability of section 1983 claims. Stilwell v. City of Williams, #14-15540,, 2016 U.S. App. Lexis 14409 (9th Cir.).

Sex Discrimination - In General

    The manager of a city's animal shelter was terminated. A federal appeals court found that she failed to show that she was fired because of her gender. The employer consistently maintained that she was fired for insubordination and failure to be courteous or cooperative with the public or co-workers, and there was no showing that this was a pretext. Bird v. West Valley City, #15-4024, 2016 U.S. App. Lexis 14520 (10th Cir.).

Sexual Harassment

     A female secretary in the U.S. Fish and Wildlife Service asserted claims for hostile work environment sexual harassment and unlawful retaliation for complaining about the harassment. A federal appeals court found that she failed to show sexual harassment so severe or pervasive as to support a claim of a hostile work environment. She alleged seven harassing incidents over a three year period by two different men, with none of them involving actual touching and instead involving suggestive remarks or gestures. She also failed to show that her termination was retaliatory for complaining about harassment. She failed to show that she would not have been terminated "but for" a retaliatory motive. She was fired for calling her supervisor "a god-d***ed f***ing liar" and grabbing a supervisor's arm and twisting it, stating that she would send copies of e-mails in her possession to the Equal Employment Opportunity Commission (EEOC) and the court, and copying unnecessary people on e-mails after repeated warnings to cease doing so. She had previously been disciplined twice for inappropriate conduct and failure to follow a supervisor's directive. Blomker v. Jewell, #15-1787, 2016 U.S. App. Lexis 14386 (8th Cir.).

     A female former employee of the Transportation Security Administration (TSA) claimed that the supervising Air Marshal in charge of the field office where she worked transferred her flight assignment duties to a group of male employees and spoke to her in a way that was hostile and unlike his treatment of male employees. This included him holding a baseball bat in what she described as "a swinging position" in almost every interaction with her. A federal appeals court ruled that the trial court erred in requiring her to show that his conduct was both severe and pervasive to establish sex harassment. Furthermore, it concluded that there was sufficient circumstantial evidence from which a reasonable jury could find in the plaintiff's favor on both sexual harassment and sex discrimination claims. Summary judgment for the employer was reversed. Burns v. Johnson, #15-1982. 2016 U.S. App. Lexis 12732, 100 Empl. Prac. Dec. (CCH) P45592, 129 Fair Empl. Prac. Cas. (BNA) 567 (1st Cir.).

Whistleblower Protection

     A Social Security hearing officer failed to make a non-frivolous claim under the Whistleblower Protection Act (WPA), 5 U.S.C. 2302(b)(8)(A) for disciplinary action against him for making certain disclosures. The first two disclosures were not protected disclosures because an agency ruling or adjudication, even if erroneous, was not a violation of the law or gross mismanagement under the WPA, and the other three disclosures were not protected disclosures because communications concerning policy decisions were explicitly excluded from protection under the WPA. Daniels v. MSPB, #13-73913, 2016 U.S. App. Lexis 14602 (9th Cir.).

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     Overtime: New Fair Law Standards Act rule concerning overtime, 29 CFR Part 541, effective Dec. 1, 2016.

     Overtime: Overtime Final Rule and State and Local Governments, U.S. Department of Labor (2016).

     Retaliatory Personnel Actions: Enforcement Guidance on Retaliation and Related Issues, EEOC (August 29, 2016).

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