May 2006 Quick Clips

Supreme Court Limits Public Employee Speech, May 31, 2006

In Garcetti v. Ceballos, No. 04-473 (U.S., May 30, 2006) the Supreme Court ruled 5-4 that public employees who make statements as part of their official job duties are not protected by the First Amendment. They may be disciplined for their comments. This highly anticipated decision, which was argued twice in the past five months, involved a memo and comments made by a Los Angeles deputy district attorney to his supervisor questioning whether a deputy sheriff had lied in an affidavit in support of a search warrant.

The Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Justice Kennedy wrote the opinion, joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito. In dissent, Justice Souter (joined by Ginsberg and Stevens) stressed that, while public employers have an interest in supervising employees and making sure decisions are carried out, employees who act as whistle blowers, should be protected. Justices Stevens and Breyer also penned dissents.

Ministerial Exception Not Complete, says Third Circuit, May 30, 2006

by Darrell R. VanDeusen

Breaking from every other appellate court to consider the issue, the Third Circuit recently held that the "ministerial exception" to Title VII, which exempts religious organizations from coverage, is not all-encompassing. In a 2-1 decision in Petruska v. Gannon Univ., No. 05-1222 (3d Cir., May 24, 2006) the court revived a sex discrimination lawsuit filed by a female Catholic chaplin, holding that constitutional provisions exempting religious institutions from the coverage of Title VII do not extend to alleged employment discrimination that is unconnected to religious belief, doctrine, or internal regulations.

Petruska claimed that she was forced out as a chaplain because she was an advocate on behalf of alleged victims of sexual harassment, spoke out against the school's president who was forced to resign because of an affair and sexual harassment, and raised questions about discrimination against female employees.

Said the court: "We adopt a carefully tailored version of the ministerial exception. Where otherwise illegal discrimination is based on religious belief, religious doctrine, or the internal regulations of a church, the First Amendment exempts religious institutions from Title VII. But where a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits." In partial dissent, Judge Smith stressed that "[a]lthough the majority professes to adopt a 'carefully tailored version of the ministerial exception' to Title VII, in fact, by treating ministers like lay employees, it effectively refuses to recognize any ministerial exception, placing this Court at odds with every other federal court of appeals to consider the issue."

New Maryland Law That Actually Makes Sense, May 24, 2006

by Pat Stewart

A new Maryland Law, amending the Wage Payment and Collection Law, prohibits employers from printing employee social security numbers on paycheck s and other documents related to pay information. The new law takes effect on January 1, 2007. The substance of the new law is this:

AN EMPLOYER MAY NOT PRINT OR CAUSE TO BE PRINTED AN EMPLOYEE'S SOCIAL SECURITY NUMBER ON THE EMPLOYEE'S WAGE PAYMENT CHECK, AN ATTACHMENT TO AN EMPLOYEE'S WAGE PAYMENT CHECK, A NOTICE OF DIRECT DEPOSIT OF AN EMPLOYEE'S WAGE, OR A NOTICE OF CREDIT OF AN EMPLOYEE'S WAGE TO A DEBIT CARD OR CARD ACCOUNT.

There is no reason to wait on complying with this new law. If your payroll is outsourced, and social security numbers are on the papers referred to above, tell the payroll company to stop the practice.

Bizarre Behavior Justifies Termination Of Bipolar Employee, May 19, 2006

by Eric Paltell

Many courts have struggled with the extent to which employers must accommodate the disruptive behavior of some employees with mental illnesses. Although there is no dispute that such employees may be protected under disability discrimination laws, the difficult legal question is whether or not employers must tolerate the workplace disruptions caused by such behavior as a "reasonable accommodation." In a recent case involving Harvard University, a Massachusetts state court helped define how much behavior is "too much" from a mentally disturbed employee. Mammone v. President & Fellows of Harvard Coll., Mass., No. SJC-09609 (May 12, 2006).

The case arose after Michael Mammone, an employee at Harvard's Peabody Museum who worked as a receptionist, began exhibiting bizarre behavior at work. In mid-August 2002, Mammone was seen engaging in loud and animated conversations and singing and dancing at the reception desk. After a brief period of hospitalization, he returned to work in East Indian dress, adorned with necklaces, bracelets and rings. He refused to meet with his supervisor, who he considered to be "evil," and refused to leave the building when asked to do so by University police officers. He ultimately had to be dragged out in handcuffs.

Harvard decided that Mr. Mammone's conduct justified termination. Nevertheless, Harvard agreed to postpone the termination date for a six month period so he could collect short term disability benefits. Despite Harvard's accommodation, Mammone sued for disability discrimination.

The state appellate court affirmed a grant of summary judgment to Harvard, finding that a person is not protected from discipline under disability discrimination laws if they engage in the kind of misconduct that would disqualify a person who was not protected by the statute. The court used the same standards applied in considering cases brought by employees who were alcoholics who engaged in disruptive behavior at work.

Fourth Circuit Rejects Harassment Claim Based On Sniper Comments, May 19, 2006

by Eric Paltell

On May 12, 2006, the United States Court of Appeals for the Fourth Circuit affirmed a lower court decision holding that a black employee could not base a work- place harassment claim on comments a co-worker made about the Washington area sniper suspects. The Court affirmed a lower court decision dismissing the statements as insufficient to create a hostile work environment. Robert L. Jordan v. Alternative Resources Corp.; IBM Corp. U.S. 4th. No. 05-1485.

The case arose after Robert Jordan, a black network technician at a Montgomery County IBM office, was fired in November 2002. Jordan claimed he was fired in retaliation for complaining about a racially hostile work environment. Jordan based his claim on a comment made by a white co-worker who was watching television coverage of the Washington area snipers and said "They should put those black monkeys in a cage with a bunch of black apes and let the apes f–k them."

The Court found that the remark by his co-worker was offensive, but was an isolated remark insufficient to create a hostile workplace. The Court described the comment as a "isolated emotional response" to the capture of "two men who had terrorized their community." The Court also found that when Jordan reported the comment to a supervisor, he could not reasonably have believed he was reporting a claim of a racially hostile work environment.

It should be noted that the Fourth Circuit panel which decided this case was bitterly split. A dissenting Justice found that it would be "entirely reasonable" for an African-American employee to consider this remark to be sufficient to create a racially hostile work environment. For this reason, employers should continue to be vigilant in taking disciplinary action against individuals who make racially offensive remarks in the workplace.

Speak Up! Employers Are Not All-Knowing, May 12, 2006

by Clifton R. Gray

The U.S. District Court for the Eastern District of Wisconsin recently granted summary judgment in favor of the employer where the former employee, who claimed that she was subjected to severe and pervasive sexual harassment from her co-workers, never told her supervisor about the harassment while it was occurring. Equal Employment Opportunity Commission v. Bombaci, 2006 WL 801024 (E.D. Wis. Mar. 28, 2006).

While the court found that Bombaci, who worked as a "pressroom jogger" at a newspaper printing facility, was likely subjected to sexually harassing behavior from two co-workers, behavior which included grabbing her breasts and other incidents of physical contact, the court also recognized that Bombaci never once reported this conduct to her supervisor. This was so even though Bombaci had received the company's sexual harassment policy at the beginning of her employment, a policy which she admitted she had never taken the time to read. Further damaging her claim was the fact that new employees were required to watch a sexual harassment training video and that she signed a form indicating that she had "read the employee handbook and watched the sexual harassment video and understood them both." When asked during deposition why she did not look in the employee handbook to see what she should do to remedy the harassing behavior, all Bombaci could muster for a response was "I don't know why."

When she finally did report the harassment to the Human Resources department following another grabbing incident, the conduct of the two offending co-workers was investigated and they were both terminated shortly thereafter. Thus, in her lawsuit Bombaci did not contend that her employer was negligent in remedying the harassment once it found out, but rather "that [the employer] was negligent in discovering that Wampner and Mueller harassed her." Basically, she was claiming that "Well, even though I didn't say anything...they should've known!" After going over the alleged harassment, however, the court found no reason why the employer should have known of the conduct prior to Bombaci finally taking the initiative to come forward. Because her employer was neither negligent in discovering or remedying the harassment, the court held that "Bombaci . . . has not demonstrated a basis for employer liability."

Let this case serve as a warning to all those employees who believe they are being subjected to sexual harassment but have yet to come forward. If you don't speak up, the court will be quick to silence you if you come before it claiming your employer should be liable for the harassment. Your employer is not some all-knowing entity that knows all of the goings-on of its employees and a court will not hold it liable when it had no reason to know of the harassment.

Take Some Pepto Because Intermittent Diarrhea Is Not a "Serious Health Condition" under the FMLA, May 1, 2006

by Sarah C. Chernish

Plaintiff, an analyst in the Transit Authority 's information technologysupport Center, was ultimately terminated after being warned on severaloccasions that he was too often away from his desk due to hisintermittent diarrhea. Mauder v. Metropolitan Transit Authority ofHarris Co., Tx, 2006 WL 960805 (5th Cir. 2006). Plaintiff filed suitalleging a violation of the FMLA because the time away from his desk wasdue his side effects from his diabetes insulin medication which causedtemporary uncontrollable bowel movements and diarrhea. Coping with themedication's side-effects required him to take restroom breaks atunscheduled times and for approximately 15 minutes at a time. Plaintiffhad given his supervisor a handwritten doctor's note that stated that aside-effect of his diabetes medication was diarrhea, but that hiscondition should improve. According to Plaintiff, the Transit Authoritycontinued to refuse to allow him to take his breaks at the scheduledtimes. When his periods away from his desk continued, he was given oraland written warnings and he was placed on 1 month of probation. Duringthat probation period, Plaintiff made a FMLA leave request to the HumanResources Department ("HR") seeking intermittent leave while at work togo to the restroom. In response, HR mailed a FMLA packet to thePlaintiff and explained he was to return the packet within three weeks.One week later, Plaintiff was terminated.

The Fifth Circuit noted that unlike most FMLA claims, Plaintiff in thiscase was not asking for an excused absence from work - but for"unfettered permission, while at work, to take necessary bathroombreaks." No other court had been asked whether the FMLA entitledemployees to take leave while at work to deal with their health issues.Regardless, the courts held Plaintiff's claim failed because he did notshow that either his diabetes or the diarrhea incapacitated him, asrequired by FMLA's definition of a "serious health condition."

The court noted that severe diarrhea may be covered by the FMLA as aserious medical condition, but only when it is so debilitating that theemployee cannot physically go to work. Similarly, diabetes may qualifyas a serious health condition and may cause episodic, rather thancontinuing, period of incapacity. However, in this case Plaintiff wasnot incapacitated to the extent he could not go to work by eitherillness, and his diabetes was under control. Thus, neither healthcondition could be viewed as the type sufficiently serious to be coveredby the FMLA.

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