Third-party Retaliation Under Title VII

The Supreme Court held that the protections of Title VII of the Civil Rights Act extend to those who claim third-party retaliation.

The wife of Plaintiff filed a gender discrimination claim with the  United States Equal Employment Opportunity Commission (“EEOC”) against the subsidiary of a company. Soon after, the company fired Plaintiff. Plaintiff sued for retaliation. The District Court, however, granted summary judgment for the company. The district court held that Title VII of the Civil Rights Act does not permit third-party retaliation claims. On appeal the United States Court of Appeals for the Sixth Circuit affirmed, holding that Plaintiff was not entitled to sue for retaliation since he had not engaged in any activity protected by the statute.

The Supreme Court reversed and remanded, concluding that Plaintiff’s firing stated a claim of unlawful retaliation. The Court held that the “person aggrieved” term used in Title VII incorporates the zone of interest test of the Administrative Procedure Act and that Plaintiff was a “person aggrieved” because Title VII’s purpose is to protect employees from their employers’ unlawful actions.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

 

Employment Law and Defamation

The District of Columbia Court of Appeals ruled that The American Israel Public Affairs Committee (the “AIPAC”) did not defame its former policy director by condemning his behavior amid a federal investigation. The AIPAC suspended its former policy director and another employee in 2005 after finding out that they were entangled in an FBI investigation involving a Pentagon official.

At issue were comments that an AIPAC spokesman gave to the New York Times. In 2005, an AIPAC spokesman was quoted as saying that the former policy director was fired because he failed to meet “the standards that AIPAC expects from its employees.” A 2008 article repeated that statement, and added that an AIPAC spokesman had more recently said that the organization “still held that view of [the former policy director’s] behavior.”

The Court of Appeals agreed that the AIPAC had no written standards for employee conduct at the time the former policy director was fired. However, the AIPAC claimed that there were unwritten standards presuming employees would obey the law, and also follow the advice of AIPAC’s lawyers and correspond with the organization with “total candor.” The Court of Appeals held that the “standards” the AIPAC spokesman referred to in both instances were not “well-defined” and were open to numerous interpretations.  Established precedent, therefore, mandated that the defamation claim could not succeed where there are multiple interpretations. In sum, the AIPAC, in the view of the Court of Appeals, had not slandered its former policy director in either article.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

 

Race Discrimination and National Origin Discrimination

Plaintiff sued his employer under Section 1981, Title VII and the District of Columbia Human Rights Act (DCHRA), alleging race discrimination, national origin discrimination, and retaliation.   In dismissing Plaintiff’s race discrimination claims, the Court held that Plaintiff had failed to establish that the alleged discrimination because he was from Angola (national origin) also meant that he had been discriminated against because of his race.

The Court reasoned that race and national origin are “ideologically distinct categories” of employment discrimination law.  Race discrimination, according to the Court, has to do with an employee’s “ancestry or ethnic characteristics.”  Conversely, national origin discrimination, according to the Court, relates to where an individual was born. For example, there are a number of people of Caucasian origin residing in South Africa. Therefore,  simply stating that one is “South African” does not define the race of an individual in question.  Furthermore, a Caucasian South African could not claim that other people of Caucasian decent from other nations discriminated him against on the basis of his race.

The Court highlighted that Plaintiff never classified himself as a “Black Angolan.” Furthermore, Plaintiff did not explain why labeling himself as “Angolan” should be considered a “very distinct” ancestral or ethnic characteristic.  The Court also found it relevant that Plaintiff did not identify the race of those who allegedly discriminated against him or the race of employees who were treated more favorably.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

Overtime Compensation and Outside Salespersons

The Fair Labor Standards Act (FLSA) mandates that employers must pay overtime to certain employees who work more than 40 hours a week. “Exempt” from the FLSA’s overtime requirements are certain employees who are categorized as “outside salesmen.” The FLSA does not define the term “outside salesman.”  Rather, Congress left the definition of “outside salesman” to the United States Department of Labor.

Respondent GlaxoSmithKline (“GSK”) refused to pay overtime to petitioners Michael Christopher and Frank Buchanan, whom it employed as pharmaceutical sales representatives. GSK considered the petitioners to be outside salesmen. The Secretary of Labor had previously established that an outside salesman must, in some sense, make sales. Christopher and Buchanan claimed that their non-committal agreements to supply physicians with certain medications did not qualify as sales.

The Supreme Court concluded that the Department of Labor’s current interpretation, as presented in its amicus brief in support of the petitioners, was unpersuasive.  The Court held that these employees qualified as outside salesmen under the most reasonable interpretation of the Department of Labor’s regulations, thus barring them from receiving overtime compensation.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

Random Drug Testing Of Federal Employees

The National Federation of Federal Employees challenged the constitutionality of a random drug testing policy applicable to all employees working at Job Corps Civilian Conservation Centers operated by the U.S. Forest Service. The District Court granted summary judgment in favor of the Secretary of Agriculture and the Chief of the U.S. Forest Service and denied the Union’s request for a preliminary injunction. Upon review, the United States Court of Appeals for the District of Columbia concluded that the Secretary failed to demonstrate “special needs” rendering the Fourth Amendment requirement of individualized suspicion unreasonable.

The Fourth Amendment prohibits the government from violating “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” Among the “few specifically established and well-delineated exceptions to that general rule,” is an exemption for conditions in which “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

In demonstrating that the governmental interests were “important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy,” the Secretary had to deliver a foundation for his determination that the condition of individualized suspicion was unreasonable in the Forest Service Job Corps context.

The United States Court of Appeals stated that the Secretary offered no foundation for concluding there is a serious drug problem among staff that threatened these interests and rendered the requirement for individualized suspicion impractical.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

EEOC Settles Severe Obesity Case Under the ADA

A nonprofit organization has agreed to pay a severely obese woman $125,000 to settle a disability discrimination lawsuit filed by the United States Equal Employment Opportunity Commission (EEOC).

The nonprofit fired the woman, and the EEOC alleged that she was fired because of her severe obesity although she could perform her job.  The EEOC asserted that severe obesity was a disability under the Americans with Disabilities Act (ADA).  In addition to the financial payment, as part of the settlement, the nonprofit organization will be required will provide annual training on federal disability law to all human resources personnel and corporate directors of its organization.   The nonprofit organization also will report to the EEOC for three years on all complaints of disability discrimination and all denials of a request for reasonable accommodation of a disability.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

Refusal to Hire Based on Type 1 Diabetes

A plaintiff sued the United States Attorney, alleging that the FBI refused to hire him as a special agent because of his Type 1 diabetes in violation of the Rehabilitation Act of 1973 (Act), 29 U.S.C. §§ 701 et seq.  The jury agreed with the plaintiff and, accordingly, awarded him a sum in compensatory damages. However the trial judge denied the plaintiff’s request for equitable relief (front pay and instatement).   The United States Court of Appeals agreed with the trial judge’s decision to deny the request for equitable relief.

In particular, the Court of Appeals agreed with the trial judge that the equitable request for instatement as a special agent was properly denied because of the plaintiff’s proven lack of candor during the application process.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

District of Columbia Passes the Unemployed Anti-Discrimination Act of 2011

Earlier this year, the District of Columbia enacted the Unemployed Anti-Discrimination Amendment Act of 2011.  This new law amends the District of Columbia’s existing Human Rights Act of 1977 by making it illegal for employment agencies and employers to discriminate against a person because of past or present unemployment, regardless of the length of time such an individual was unemployed.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

District of Columbia Whistleblowers Protection Act

Plaintiffs brought their complaint in the Superior Court against Defendants based on alleged violations of the District of Columbia Whistleblowers Protection Act (“WPA”). This lawsuit arose out of events surrounding the Metropolitan Police Department’s (hereinafter “MPD”) discontinuation of its use of “Intoxilyzer” devices to measure the blood-alcohol level of suspected drunk drivers. Plaintiffs were MPD officers who had been involved in hundreds of drunk driving arrests that involved the Intoxilyzer devices.  In February of 2010, the MPD removed Intoxilyzer devices from use.

After learning of the issues surrounding usage of the Intoxilyzer devices, Plaintiffs asserted that they “were instructed by attorneys working for the District of Columbia to limit their testimony regarding the problems with the Intoxilyzer devices and told not to answer questions about when they became aware of the problems with the devices.  However, according to Plaintiffs, they  “refused to alter their testimony” and made their second alleged protected disclosure when they “informed attorneys of the District of Columbia that they would testify truthfully regarding their knowledge of the Intoxilyzer and Intoximeter devices.”

Later, a District of Columbia government attorney sent a memorandum to the MPD Internal Affairs Division alleging that Plaintiffs had acted improperly during a certain arrest. Plaintiffs alleged, also, that this memorandum was retaliatory in nature.

Still later, Plaintiffs were informed that they had been selected to attend a training in preparation for taking over MPD’s enforcement program for driving under the influence (hereinafter “DUI”) offenses. However, when attorneys for the District of Columbia were informed that Plaintiffs were to be in charge of the DUI enforcement program, they objected and claimed that Plaintiffs were under investigation.  Plaintiffs alleged that the loss of the promotion and training opportunities constituted retaliation for their alleged disclosures.

Plaintiffs also alleged that an Internal Affairs investigation was retaliatory in nature.  Last, Plaintiffs alleged that investigatory actions, the filing of the Motion to Correct the Record, and their placement on the Lewis list constituted further retaliation.

According to the Complaint,  Plaintiffs were later cleared of all charges of
misconduct.

The WPA provides that “[a] supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate against an employee because of the employee’s protected disclosure or because of an employee’s refusal to comply with an illegal order.”

The WPA further defines “retaliating” as including “conducting or causing to be conducted an investigation of an employee or applicant for employment because of a protected disclosure made by the employee or applicant who is a whistleblower.” Under this paragraph, “‘[i]nvestigation’ includes an examination of fitness for duty and excludes any ministerial or non-discretionary fact finding activity necessary to perform the agency’s mission.”

In sum, these provisions of the WPA contemplate retaliation as taking the form of an adverse action by a supervisor that is motivated by retaliatory intent.  Retaliatory investigations are explicitly prohibited by the WPA.

WPA specifically prohibits two categories of actions:

“(a) A supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate against an employee because of the employee’s protected disclosure or because of an employee’s refusal to comply with an illegal order.

(b) Except in cases where the communication would be unlawful, a person shall not interfere with or deny the right of employees, individually or collectively, to furnish information to the council, a Council committee, or a Councilmember.”

The WPA defines a “supervisor” as:

“An individual employed by the District government who meets the definition of a ‘supervisor’ in [D.C. Code] § 1-617.01(d) or who has the authority to effectively recommend or take remedial or corrective action for the violation of a law, rule, regulation or contract term, or the misuse of government resources that an employee may allege or report pursuant to this section, including without limitation an agency head, department director, or manager.”

In addition, D.C. Code §1-615.53(b) provides that “a person shall not interfere with or deny the right of employees, individually or collectively, to furnish information to the Council, a Council committee, or a Councilmember.”

Last, a “protected disclosure” is defined as:

“Any disclosure of information, not specifically prohibited by statute, without restriction to time, place, form, motive, context, forum, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties, by an employee to a supervisor or a public body that the employee reasonably believes evidences

(A) Gross mismanagement;

(B) Gross misuse or waste of public resources or funds;

(C) Abuse of authority in connection with the administration of a public program or the execution of a public contract;

(D) A violation of a federal, state, or local law, rule or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature; or

(E) A substantial and specific danger to the public health and safety.”

As set forth above, Plaintiffs alleged certain protected disclosures under the WPA.  Therefore, the Superior Court, upon largely denying Defendants’ Motion to Dismiss concluded that the Plaintiffs’ complaint sufficiently asserted claims under the WPA.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

District of Columbia Court of Appeals Orders Office of Employee Appeals to Comply with 120 Day Deadline for Rendering Initial Decisions

According to the District of Columbia Court of Appeals, the Office of Employee Appeals (“OEA”) has not been complying with a rule that initial decisions should be issued within 120 days in District of Columbia public employee cases. That practice should come to an end, thanks to a recent decision by the Court of Appeals. It ordered OEA to comply with 6 DCMR 632.1, which mandates that an initial decision be rendered within 120 days from the filing of a complete petition for appeal.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.