Tuesday, January 28, 2014

Another Public Employee Fired for Facebook Posting

A Mississippi District Court judge has ruled that a police chief did not violate the First Amendment rights of a police officer when he fired her for making comments about his actions on her Facebook page.  The case is Graziosi v. City of Greenville, US District Court for the Northern District of Mississippi, Greenville Division, Dec. 3, 2013.

Susan Graziosi served as a police officer in Greenville MS for more than 26 years.  In May, 2012, she found out that her police department did not send a representative to the funeral of a police officer in a neighboring town who had been killed in the line of duty.  Using her personal computer, and when she was not on duty, she posted an item on her Facebook page complaining about how this was “totally unacceptable.”  She also posted her comment on the Greenville Mayor’s Facebook page. 

The Greenville Police Department’s Policy and Procedure Manual prohibited employees from “maliciously” criticizing the work or manner of performance of other employees.  Citing this policy, the chief fired Graziosi.  On appeal, she argued that she was not acting maliciously, but just expressed a difference of opinion with the Chief. 

The legal question is whether a government employee’s speaking out is constitutionally protected.  More than 20 years ago, the Supreme Court held that in order to enjoy First Amendment protection, the subject of the speech must be a “matter of public concern.” Connick v. Myers, 461 U.S. 138 (1983). 

Graziosi’s position was that a decision about whether or not to send police officers to a funeral is inherently a matter of public concern because it involves the spending of public funds.  However, the judge held that Graziosi’s comments “were more related to her own frustration”  at the Chief’s decision not to send officers to the funeral, and were not made to expose unlawful conduct within the Police department, noting, “A public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run,” citing Ferrara v. Mills, 781 F.2d 1508, 1516 (11th Cir. 1986).  

It is useful to consider this decision in light of another case in which a public employee posted comments on her Facebook page.  In Gresham v. City of Atlanta, the employee posted a Facebook comment in which she was critical of what she saw as obstruction of justice by a fellow officer.  Significantly, she had set her Facebook settings so that the comment could only be viewed by her friends.  Therefore, even though the court held that the subject matter she posted about was a matter of public concern, the court held that she clearly had not intended “to bring an issue of public concern to the attention of persons with authority to make corrections . . . the context was more nearly one of Plaintiff’s venting her frustration with her superiors.”

Employees must continue to take care in terms of what they post about their employment situation on Facebook and other social media, while public employers must assure that if they take a personnel action against an employee for social media postings, they are not punishing an employee for exercising his or her First Amendment rights.

     - This post was prepared by Elizabeth L. Newman.  Please contact her at enewman@kcnlaw.com with your questions or comments.

Train Law Blog covers "intervening events," time limits and emotional distress

My colleague Charlie Goetsch just reported about two railroad whistleblower cases in his Train Law Blog.  With his permission, I am reposting his reports here.  You can subscribe here to the Train Law Blog.

Two recent decisions clarify the "intervening event" defense, the limitations period, and the basis for emotional distress damages in Federal Rail Safety Act cases.

An "Intervening Event" Is Not A FRSA Defense
Railroads often argue that the firing of an employee was based on an "intervening event" that breaks the causal connection between the FRSA protected activity and the adverse action.  The BNSF Railroad  terminated conductor Peter Peterson after he reported an injury, and raised that defense to his FRSA complaint. The resulting ALJ decision explains why the "intervening event" defense does not apply to FRSA retaliation cases:
An act that "is part and parcel of the chain of events from injury to termination" is not an intervening event. Any act that is "at least incidental to" a protected activity is not an intervening event. And even an event that is totally unrelated to an injury report is not a defense: "an intervening event does not necessarily sever the connection between protected activity and adverse action -- protected activity can be a contributing factor even if the employer also has a legitimate reason for the unfavorable employment action against the employee."
Peterson v. BNSF Railway.  Indeed, the ARB confirms that "even an insubordinate comment is not an intervening event when it was incidental to protected activity." So chalk up another railroad FRSA defense that is doomed to failure. In Peterson's case, the ALJ awarded him reinstatement with several hundred thousand dollars for back pay, emotional distress, and punitive damages.

When the 180 Day Limitations Period Begins To Run
Maverick Transportation LLC is a U.S. Circuit Court decision interpreting the FRSA's fraternal twin whistleblower statute, the STAA (which protects truck drivers from whistleblower retaliation under the same standards as the FRSA). In Maverick, a driver suffered adverse action when he refused to drive a truck he believed presented a danger to himself and the public.
The Circuit Court upheld the ARB's ruling that the 180 day "limitations period begins to run when the employee receives definitive notice of an adverse action," not necessarily when the employer takes the adverse action without the employee's knowledge. This means the limitations period begins to run only when the employee receives definitive notice of the adverse action taken by the employer. In the Maverick case, the employee did not find out until years later, but he was allowed to proceed because he filed his OSHA complaint within 180 days of his discovery of the adverse action.

Emotional Distress
The Circuit Court also affirmed the liberal standard for awarding emotional distress damages in FRSA retaliation cases. In Maverick, the employee was awarded $75,000 in emotional distress damages based solely on his own testimony without any medical evidence. The Circuit Court upheld the award, noting "A plaintiff's own testimony can be sufficient for a finding of emotional distress, and medical evidence is not necessary."

For the full Peterson decision, click here, and for the full Maverick decision, click here. For a summary of employee rights under the FRSA, click here.

Tuesday, January 14, 2014

Former NFL Player Alleges Discrimination Based on Gay Marriage Support

In news that will likely be shocking to no one, it turns out that rampant anti-homosexual employment discrimination exists even in the world of professional sports.  On January 2 of this year, former Minnesota Vikings punter Chris Kluwe alleged in an article to Deadspin.com that he was cut from the Vikings, and subsequently blackballed in the NFL, due to his willingness to publicly support gay marriage.  Although Kluwe is not gay himself, he has repeatedly spoken out in favor of gay marriage in multiple venues.  He did so through radio advertisements and public appearances, and did so with the explicit approval of the Minnesota Vikings.  But on September 7, 2012, a letter he wrote to Maryland State Representative Emmett C. Burns, Jr. precipitated a troubling season for Kluwe.  Burns had just written a letter demanding that a Baltimore Ravens player, Brendon Ayenbadejo, immediately “cease and desist” in his own public support of gay marriage.  Kluwe responded to Burns with his own letter, using very colorful language that will not be repeated in this post, and the very next day he was asked by the team to halt his public support of gay marriage.    

In the three months that followed this meeting, Kluwe was repeatedly confronted by members of the team’s staff, including their public relations personnel and even the head coach at the time, Leslie Frazier, and asked to put a halt to his publicity barrage.  Each time, he refused, believing that he was doing the right thing, and so he continued to speak out in favor of gay marriage.

Unfortunately, this attempt to stifle Kluwe’s speech was not limited to just the team’s front office.  In fact, the treatment was significantly worse on the football field.  Throughout the season, Vikings Special Teams Coordinator, Mike Priefer, who was essentially Kluwe’s first level coach, repeatedly verbally harassed Kluwe during practice.  Priefer would ask if Kluwe “had written any letters defending "the gays" recently and denounce as disgusting the idea that two men would kiss, and he would constantly belittle or demean any idea of acceptance or tolerance.”  In another meeting, Priefer actually stated “We should round up all the gays, send them to an island, and then nuke it until it glows.”  Priefer also began to give Kluwe negative performance evaluations during team meetings for conduct that previously received positive evaluations.  All in all, Kluwe’s season was one filled with consistent harassment and abuse, simply because he stood up against intolerance and discrimination. 

Sadly for Kluwe, this season turned out to be the last of his professional career.  In May 2013, he was informed that he was being cut from the team.  The team claimed the move was made because they wanted to use a new punter they had just drafted, and had nothing to do with his views on gay marriage, but their claim does not hold water in light of the fact that Kluwe was, statistically speaking, the best punter in Vikings history, and had performed just as well in 2012 as he had in his entire career with the team.  In subsequent tryouts for other teams, scouts raved to him about his abilities, but then also decided to not retain his services for the 2013 season.  A pattern emerged where he performed as well or better than his competition, but was still passed over for every open job in the league.  Clearly, Kluwe’s inability to find a job in the last year makes it difficult to reach any other conclusion but that the NFL currently values keeping quiet on social issues over winning.  

Tuesday, January 7, 2014

More Than Smoke and Mirrors: How DC Protects Tobacco Users From Employment Discrimination

On frigid days like today, it is easier than usual to spot smokers. While everyone else is running for the nearest door, these brave souls scoff at Jack Frost and puff away.

That bravery comes with a cost to employers. According to a study published in Tobacco Control this past summer, a company pays on average about $6,000 more per year to employ a smoker. So it should be no surprise that more and more businesses are refusing to employ tobacco users.

However, tobacconists in the nation’s capital should have no fear. The District of Columbia prohibits employment discrimination based on a worker’s tobacco use. See DC ST § 7-1703.03.

Specifically, employers in the District cannot fire, refuse to hire, or otherwise discriminate against any employee based on that person’s use of tobacco products. Victims of discrimination can go directly to court to recover money damages, including back pay. The statute also provides for discretionary attorneys’ fees.

The District has a rich history of providing broad anti- discrimination laws. Indeed, the District goes farther than the federal government and many states, protecting such things as sexual orientation, gender identity, college affiliation, physical appearance, and age for people between 18 and 40.

Still, it seems to be an odd policy choice to protect tobacco use. And yet the District of Columbia is not alone: dozens of states have laws that protect smokers’ rights in the workplace. Seventeen of those states – like the District – specifically protect tobacco use while excluding other lawful activities.

But the reason that tobacco use is protected is largely historical. In the early 80s, smoking was much more prevalent and socially acceptable than it is today. Around that time, Alaska Airlines and a few other large corporations implemented the first policies openly discriminating against tobacco use. These companies decided to not employ smokers, regardless of whether they used tobacco at home or at work.

In response, Big Tobacco and the ACLU urged legislatures to protect employees’ right to smoke. That effort led Colorado to pass the “Lawful Activities Statute,” which has recently brought employment law to the center of the legal marijuana debate. It also led to the 1993 passage of the District’s law.

To date, no District of Columbia court cases cite the statute. Though this could be for various reasons, it is safe to assume that tobacco discrimination suits are not particularly prevalent.

But that does not mean the statute is inconsequential. Most likely, the law’s primary impact has been to eliminate policies against hiring smokers that companies would otherwise consider. Indeed, where tobacco use is not protected, many employers are choosing to not employ smokers. This trend causes concern for some who fear that these same economic and welfare considerations could cause employers to single out workers on other characteristics, such as weight.

However, though employers cannot take employment actions because a worker smokes in general, they can create workplace restrictions on tobacco use. Further, employers can even forbid tobacco use if it is a bona fide occupational qualification.

It can often be helpful for an employer to have a tobacco use policy, so that mutual expectations are clear. Further, many legitimate employer concerns can be addressed through carefully drafted workplace restrictions. However, companies should consult with an experienced employment attorney to ensure that such policies are lawful and do not give rise to unexpected liabilities.

This statute also provides a different, but no less practical, lesson for employees: There is a diverse patchwork of exceptions to the “at-will” doctrine. These exceptions may provide relief even when an adverse decision is not based on a clearly protected class, such as race. If a worker feels she has been treated unfairly, she should consult with an attorney to explore whether a remedy exists.

Posted by Dallas Hammer