31 Aralık 2012 Pazartesi
In Title VII Cases, Sometimes It's All About the Numbers. . .
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On September 28, 2011, in the case of Meditz v. City of Newark the Third Circuit Court of Appeals found that the trial court had improperly dismissed a lawsuit against the City of Newark, which alleged that the City's residency requirement for its non-uniformed employees was unlawful under Title VII because it created an employment bias against white, non-Hispanic applicants. The Court of Appeals held that the trial court had failed to properly evaluate and consider the weight of the statistical evidence that had been presented by the plaintiff. In April of 2007, Gregory Meditz, a white male who resided in neighboring Rutherford, New Jersey, applied for a non-uniformed job with the City of Newark. Meditz was turned down for the job because he did not live in the City of Newark, and thus did not qualify for employment under a City Ordinance that required all non-uniformed City personnel to live within the City limits. Meditz sued, claiming that the City's residency requirement for its non-uniformed employees was discriminatory and unlawfully barred him from qualifying for a non-uniformed job with the City. Specifically, Meditz argued that the residency requirement worked a disparate impact on white, non-Hispanic job applicants because the racial make-up of the population of Newark did not reflect the racial make-up of the surrounding labor market. In support of his claims, Meditz produced statistical data that he gathered from publicly available sources, which revealed that in 2007, only 9.4% of the non-uniformed employees of the City of Newark were white, non-Hispanic, while 28.31% of the City's uniformed employees (who are not subject to a residency requirement) were white, non-Hispanics. Meditz also compared the statistics of the racial composition of the City's non-uniformed employees with the racial composition of the non-uniformed employees from the County of Essex, which maintained its County seat within the City of Newark. This comparison showed that 42.96% of the non-uniformed employees who worked for the County were white, non-Hispanics. Meditz also introduced evidence that in 2005, the percentage of white, non-Hispanics that constituted the non-uniformed employees of Essex County and 5 neighboring counties, ranged from 48.09% to 86.49%, with the percentages of white, non-Hispanics employed in the private labor force in those same counties being only slightly lower. The trial court, however, granted the City's motion for summary judgment, and tossed Meditz's lawsuit, concluding that "these statistics, standing alone, do not constitute sufficient evidence of a significantly discriminatory hiring pattern."On appeal, the Third Circuit reversed, finding that the trial court had misapplied the law and had failed to lend the appropriate weight to Meditz's statistical evidence. Specifically, the Court held that "Meditz offered statistical evidence showing that the percentage of white, non-Hispanics employed by Newark was lower than the population of white, non-Hispanics in the general population of Newark. Meditz also offered statistics showing the percentage of white, non-Hispanics in surrounding areas both for the general population and for the private and government work forces. Finally, Meditz offered evidence of the percentage of white, non-Hispanics employed by the Essex County government in Newark. Out of all these percentages, the lowest was the percentage of white, non-Hispanics employed by the City of Newark. This compilation of statistics supported Meditz's claim that white, non-Hispanics were under-represented in Newark's non-uniformed work force." This case provides an excellent illustration of how a disparate impact theory of discrimination under Title VII can be invaluable tool for an individual who believes he or she has been subjected to unlawful discrimination, because in these cases, evidence of discriminatory intent or bias on behalf of the employer is not required. All that a plaintiff needs in order to be successful is to establish a differential employment outcome or treatment that is based upon race, sex, religion, or national origin, which can be proven through statistical analysis and statistical deviations. After all, the numbers don't lie. You can read the Third Circuit's full opinion in Meditz v. City of Newark here: http://www.ca3.uscourts.gov/opinarch/102442p.pdf
Filming Co-workers In Partial State of Undress is Bad.... In Case You Didn't Know
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In the legal world, common sense and the law do not always go hand-in-hand. Sometimes what seems practically logical or predictable will not be legally sustainable (or vice-versa). But, on those rare occasions when the law and common sense can exist side-by-side without destroying each other like sparring gladiators, it can be refreshing.
This is one of those moments. In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them. The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly).
One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat) observed on the floor. Doe and her partner soon found themselves crawling with fleas. They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.
After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors. Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up. Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.
Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility. After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way. Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes.
Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident. When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices. A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed. Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.
Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock. With Doe standing with her back to the door, Joyce began to inspect Doe for fleas. Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts.
As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe. Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo. Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room. Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up." Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."
Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe. After which, Doe left the hospital in scrubs.
Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers. At least one officer testified that Foy had displayed a still image of Doe's bare buttocks. Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network. Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper.
Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment. Doe also claimed that the County was liable for an alleged failure to train their officers.
On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim. While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area." The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed. As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper.
The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them.
Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue.
So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.
You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf
This is one of those moments. In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them. The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly).
One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat) observed on the floor. Doe and her partner soon found themselves crawling with fleas. They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.
After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors. Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up. Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.
Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility. After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way. Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes.
Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident. When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices. A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed. Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.
Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock. With Doe standing with her back to the door, Joyce began to inspect Doe for fleas. Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts.
As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe. Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo. Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room. Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up." Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."
Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe. After which, Doe left the hospital in scrubs.
Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers. At least one officer testified that Foy had displayed a still image of Doe's bare buttocks. Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network. Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper.
Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment. Doe also claimed that the County was liable for an alleged failure to train their officers.
On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim. While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area." The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed. As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper.
The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them.
Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue.
So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.
You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf
Webinar: Worker's Compensation Update March 30th
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It is important to clarify when employees are eligible for workers’ compensation benefits and explain what you should and shouldn’t do if an employee is injured on the job. This seminar will discuss:
• When is an employee eligible for worker's compensation benefits?
• Dos and Don'ts when an employee gets injured on the job.
• 2011 changes to the workers' compensation system.
• New legislation and court rulings from 2010.
• Why offer modified work, and what to do when it is refused by your employee.
• Communicating with your injured workers – how and why.
HRCI Approved:
The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute’s criteria to be pre-approved for recertification.
Speaker: Steven Roberts Esq
Date: Wednesday, March 30, 2011 At 12:00 PM
Duration: 1 Hour
Mr. Roberts is a partner in the workers’ compensation defense firm of Yrulegui and Roberts. He is certified by The State Bar of California Board of Legal Specialization as a specialist in Workers’ Compensation.
He has full range of trial experience including all phases of workers’ compensation litigation; appellate court hearings and Workers’ Compensation Appeals Board trials.
Registration information Click Here
Established in 1937, CEA is a non-profit association providing personalized and cost effective comprehensive information, services, and training for all aspects of human resources management,California Labor Law and relations solutions throughout California. Located throughout the state, CEA’s staff of regional directors draw upon more than 150 years combined knowledge and experience to assist in all aspects of employer-employee relations.
For more information please contact:
Scott J. Dear, Director of Membership Services
Toll free 1-800-399-5331 or 916-921-1312
Mobile 916-281-5898
Email: sdear@employers.org
Website: www.employers.org
Twitter: Caemployers
• When is an employee eligible for worker's compensation benefits?
• Dos and Don'ts when an employee gets injured on the job.
• 2011 changes to the workers' compensation system.
• New legislation and court rulings from 2010.
• Why offer modified work, and what to do when it is refused by your employee.
• Communicating with your injured workers – how and why.
HRCI Approved:
The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute’s criteria to be pre-approved for recertification.
Speaker: Steven Roberts Esq
Date: Wednesday, March 30, 2011 At 12:00 PM
Duration: 1 Hour
Mr. Roberts is a partner in the workers’ compensation defense firm of Yrulegui and Roberts. He is certified by The State Bar of California Board of Legal Specialization as a specialist in Workers’ Compensation.
He has full range of trial experience including all phases of workers’ compensation litigation; appellate court hearings and Workers’ Compensation Appeals Board trials.
Registration information Click Here
Established in 1937, CEA is a non-profit association providing personalized and cost effective comprehensive information, services, and training for all aspects of human resources management,California Labor Law and relations solutions throughout California. Located throughout the state, CEA’s staff of regional directors draw upon more than 150 years combined knowledge and experience to assist in all aspects of employer-employee relations.
For more information please contact:
Scott J. Dear, Director of Membership Services
Toll free 1-800-399-5331 or 916-921-1312
Mobile 916-281-5898
Email: sdear@employers.org
Website: www.employers.org
Twitter: Caemployers
Think You Know an Employee's "Age"? Don't Be So Sure
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The article below addresses key points related to UIC HR policy102 that provides a nondiscrimination statement that applies to admissions, employment, access to, and treatment in the University programs and activities. Age is one of the protected classes under Title VII of Civil Rights Act of 1964 and Amendments.
From Diversity Executive
By Frank Kalman 11/5/12
A recent study unearths myriad ways to look at a person’s age. Consider this to drive engagement and performance.
From Diversity Executive
By Frank Kalman 11/5/12
A recent study unearths myriad ways to look at a person’s age. Consider this to drive engagement and performance.
What's the Real Cost?
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With the increase in Federal agency initiatives targeting employers, such as I-9 audits or independent contractor classification audits, employers face increased scrutiny. In addition, disgruntled current or former employees are free to lodge complaints with State and Federal agencies that may spark an investigation. In either case, an employer faces potential liability, as very few employers are capable of keeping up with the myriad of employment laws. In reality, most employers try to remain compliant with employment laws, but if the government looks hard enough, it is likely to find a violation or two.
What’s the cost of a claim? It might be fines for incomplete I-9s, unpaid taxes for misclassification of workers, overtime for unpaid wages or a need to change employment practices. But, the biggest cost is usually legal fees. It is a best practice to hire counsel when an employer faces a government investigation, employee claim or audit. Contacting counsel before reacting/responding to a claim is prudent, but it does create an expense. Moreover, a disgruntled employee is likely to have an attorney herself. When an employee has an attorney, that attorney will likely make a demand for some kind of monetary compensation for whatever wrong the employee alleges. The demand ordinarily includes the payment of that employee’s attorney’s fees.
Most Federal discrimination laws allow for the recovery of attorney’s fees to the “prevailing party”. In a case that goes to litigation, this can mean that the employee’s attorney will ask the court to award “reasonable attorney’s fees”. Typically, the employee’s will ask that the court award attorney’s fees in excess of $100,000. Even in cases that settle, employees expect their attorney’s fees to be paid by the employer, which again can add up to significant amounts of money even in a case that is considered suspect.
In a recent Federal employment discrimination case, a jury awarded an employee $110,000 in damages for the employer’s retaliation for her protesting unlawful employment practices. The employee asked the court for an award of attorney’s fees. Although the employee also brought two other unsuccessful claims (one for gender discrimination and one under the FMLA) that the jury rejected, the judge in that case awarded the employee $250,000 in attorney’s fees and expenses. Think about it: her attorney’s fees award more than doubled the amount of actual damages that the jury awarded to her. The judge reasoned that the winning claim (retaliation) was “intertwined” with her other discrimination claims such that she was entitled to all of her attorney’s fees.
What is the lesson learned from this illustrative case? Be proactive as an employer. Conduct regular training for both employees and management, including on topics such as harassment. In addition, conduct a self-audit of internal recordkeeping, policies and procedures, etc. If you find violations on your own, it’s cheaper and easier to correct with the assistance of counsel than when your company is facing a claim or audit. Finally, while not all claims are avoidable despite best efforts, if the company has taken proactive steps such as those mentioned above, it can mitigate its exposure and can reduce the number of claims. After all, paying someone else’s attorney’s fees doesn’t exactly help the bottom line.
What’s the cost of a claim? It might be fines for incomplete I-9s, unpaid taxes for misclassification of workers, overtime for unpaid wages or a need to change employment practices. But, the biggest cost is usually legal fees. It is a best practice to hire counsel when an employer faces a government investigation, employee claim or audit. Contacting counsel before reacting/responding to a claim is prudent, but it does create an expense. Moreover, a disgruntled employee is likely to have an attorney herself. When an employee has an attorney, that attorney will likely make a demand for some kind of monetary compensation for whatever wrong the employee alleges. The demand ordinarily includes the payment of that employee’s attorney’s fees.
Most Federal discrimination laws allow for the recovery of attorney’s fees to the “prevailing party”. In a case that goes to litigation, this can mean that the employee’s attorney will ask the court to award “reasonable attorney’s fees”. Typically, the employee’s will ask that the court award attorney’s fees in excess of $100,000. Even in cases that settle, employees expect their attorney’s fees to be paid by the employer, which again can add up to significant amounts of money even in a case that is considered suspect.
In a recent Federal employment discrimination case, a jury awarded an employee $110,000 in damages for the employer’s retaliation for her protesting unlawful employment practices. The employee asked the court for an award of attorney’s fees. Although the employee also brought two other unsuccessful claims (one for gender discrimination and one under the FMLA) that the jury rejected, the judge in that case awarded the employee $250,000 in attorney’s fees and expenses. Think about it: her attorney’s fees award more than doubled the amount of actual damages that the jury awarded to her. The judge reasoned that the winning claim (retaliation) was “intertwined” with her other discrimination claims such that she was entitled to all of her attorney’s fees.
What is the lesson learned from this illustrative case? Be proactive as an employer. Conduct regular training for both employees and management, including on topics such as harassment. In addition, conduct a self-audit of internal recordkeeping, policies and procedures, etc. If you find violations on your own, it’s cheaper and easier to correct with the assistance of counsel than when your company is facing a claim or audit. Finally, while not all claims are avoidable despite best efforts, if the company has taken proactive steps such as those mentioned above, it can mitigate its exposure and can reduce the number of claims. After all, paying someone else’s attorney’s fees doesn’t exactly help the bottom line.
27 Aralık 2012 Perşembe
U.S. Supreme Court Recognizes Third-Party Retaliation Claims Under Title VII
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On January 24, 2011, the U.S. Supreme Court held, in the closely-watched case of Thompson v. North American Stainless, LP that Title VII's anti-retaliation provision permits "third-party retaliation claims."
Prior to 2003, Eric Thompson and his fiance, Miriam Regalado were employees of North American Stainless (NAS). In February of 2003, NAS was notified by the EEOC that Regalado had filed a charge alleging sex discrimination. Three weeks later, Thompson was fired by NAS.
Thompson then filed his own charge with the EEOC, claiming that NAS had terminated him in order to retaliate against Regalado for her filing a sex discrimination charge with the EEOC. The district court dismissed Thompson's claim, holding that Title VII did not permit third-party retaliation claims. The Sixth Circuit, after a rehearing en banc, affirmed the dismissal of Thompson's claim, holding that he had not engaged in any statutorily protected conduct under Title VII.
On appeal, the Supreme Court reversed, and held that Thompson has a viable retaliation claim under Title VII. First, the Court noted that "we have little difficulty concluding that if the facts alleged by Thompson are true, then NAS's firing of Thompson violated Title VII." The Court reaffirmed that "Title VII's antiretaliation provision must be construed to cover a broad range of employer conduct," and that this provision "prohibits any employer action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." Given this basis, the Court stated that "[w]e think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired."
While recognizing that third parties are protected from retaliation under Title VII, the Court refused "to identify a fixed class of relationships for which third-party reprisals are unlawful," but re-emphasized that the standard for judging harm under the anti-retaliation provision "must be objective."
The more difficult question facing the Court was whether Thompson had standing to sue NAS within Title VII's category of a "person claiming to be aggrieved." First, the Court specifically rejected the argument that Title VII's "person claiming to be aggrieved," language automatically grants any individual who suffers harm under Title VII Article III standing in every instance. But, the Court also rejected NAS's opposite argument that Title VII's "person claiming to be aggrieved," language refers only to the employee who is engaged in the protected activity. As such, the Court settled on a middle-ground approach and adopted the "zone of interests" test that has been applied to determine whether a person "adversely affected or aggrieved," has Article III standing to sue under the Administrative Procedure Act. This test states that a plaintiff may not sue unless he/she "falls within the zone of interests sought to be protected by the statutory provision whose violations forms the legal basis for his complaint." The Court described this test as prohibiting Article III standing "if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit."
Applying this test to Thompson, the Court had little trouble concluding that Thompson fell within the "zone of interests" protected by Title VII. Specifically, Thompson was an employee of NAS and Title VII is meant to protect employees from employer's unlawful actions. The Court also noted that Thompson was not "an accidental victim of retaliation - collateral damage, so to speak, of the employer's unlawful act. To the contary, injuring him was the employer's intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her." As such, the Court found that Thompson was "well within the zone of interests sought to be protected by Title VII," and permitted his claim to proceed.
You can read the full version of the Supreme Court's opinion here: http://www.supremecourt.gov/opinions/10pdf/09-291.pdf
Prior to 2003, Eric Thompson and his fiance, Miriam Regalado were employees of North American Stainless (NAS). In February of 2003, NAS was notified by the EEOC that Regalado had filed a charge alleging sex discrimination. Three weeks later, Thompson was fired by NAS.
Thompson then filed his own charge with the EEOC, claiming that NAS had terminated him in order to retaliate against Regalado for her filing a sex discrimination charge with the EEOC. The district court dismissed Thompson's claim, holding that Title VII did not permit third-party retaliation claims. The Sixth Circuit, after a rehearing en banc, affirmed the dismissal of Thompson's claim, holding that he had not engaged in any statutorily protected conduct under Title VII.
On appeal, the Supreme Court reversed, and held that Thompson has a viable retaliation claim under Title VII. First, the Court noted that "we have little difficulty concluding that if the facts alleged by Thompson are true, then NAS's firing of Thompson violated Title VII." The Court reaffirmed that "Title VII's antiretaliation provision must be construed to cover a broad range of employer conduct," and that this provision "prohibits any employer action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." Given this basis, the Court stated that "[w]e think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired."
While recognizing that third parties are protected from retaliation under Title VII, the Court refused "to identify a fixed class of relationships for which third-party reprisals are unlawful," but re-emphasized that the standard for judging harm under the anti-retaliation provision "must be objective."
The more difficult question facing the Court was whether Thompson had standing to sue NAS within Title VII's category of a "person claiming to be aggrieved." First, the Court specifically rejected the argument that Title VII's "person claiming to be aggrieved," language automatically grants any individual who suffers harm under Title VII Article III standing in every instance. But, the Court also rejected NAS's opposite argument that Title VII's "person claiming to be aggrieved," language refers only to the employee who is engaged in the protected activity. As such, the Court settled on a middle-ground approach and adopted the "zone of interests" test that has been applied to determine whether a person "adversely affected or aggrieved," has Article III standing to sue under the Administrative Procedure Act. This test states that a plaintiff may not sue unless he/she "falls within the zone of interests sought to be protected by the statutory provision whose violations forms the legal basis for his complaint." The Court described this test as prohibiting Article III standing "if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit."
Applying this test to Thompson, the Court had little trouble concluding that Thompson fell within the "zone of interests" protected by Title VII. Specifically, Thompson was an employee of NAS and Title VII is meant to protect employees from employer's unlawful actions. The Court also noted that Thompson was not "an accidental victim of retaliation - collateral damage, so to speak, of the employer's unlawful act. To the contary, injuring him was the employer's intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her." As such, the Court found that Thompson was "well within the zone of interests sought to be protected by Title VII," and permitted his claim to proceed.
You can read the full version of the Supreme Court's opinion here: http://www.supremecourt.gov/opinions/10pdf/09-291.pdf
US Supreme Court Adopts "Cat's-Paw" Theory In Military Discrimination Case
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In Staub v. Proctor Hospital, decided on March 1, 2011, the U.S. Supreme Court held, in the context of a case involving an employer's alleged violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." The significance of this opinion is two-fold: First, the Court through this opinion has explicitly sanctioned the applicability of "cat's-paw" theories of liability in an employment discrimination context. Second, there is nothing in the language of this decision that would suggest that the Court's analysis in this case is strictly confined to cases arising under USERRA. To the contrary, the Court itself acknowledges in the majority opinion that the operative statutory language of the USERRA, which prohibits an employer from denying employment or the benefits of employment to any person on the basis of that individual's membership in or obligation to a branch of the military, is "very similar to Title VII." As such, employees can now rely on this decision to advance "cat's-paw" theories of liability against employers in the traditional discrimination cases arising under Title VII.
In this case, Vincent Staub worked as a medical technician for Proctor Hospital under 2004 when he was terminated for allegedly violating a "Corrective Action" disciplinary warning that had been placed in his employment file by his supervisors, Janice Mulally and Michael Korenchuk.
While employed at Proctor, Staub was a member of the U.S. Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks per year. At Staub's subsequent employment discrimination trial, the jury determined that both Mulally and Korenchuk were hostile to Staub's military obligations. Specifically, Mulally had scheduled Staub for additional shifts without notice so that he would "pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves," and Mulally had also informed one of Staub's co-workers that Staubs's "military duty had been a strain on the department," and asked that co-worker to help her "get rid of" Staub. Korenchuk referred to Staub's obligations to the Reserves as "a bunch of smoking and joking and a waste of taxpayers' money," and was aware that Mulally was "out to get" Staub.
In January of 2004, Mulally issued Staub a "Corrective Action" disciplinary warning for purportedly violating a company rule that required him to stay in his work area whenever he was not seeing a patient. This warning required Staub to report to either Mulally or Korenchuk when he had no patients or when his patient testing was completed. Staub contended at trial that the company rule allegedly invoked by Mulally did not exist, and that even if it did, he did not violate it.
On April 2, 2004, one of Staub's co-workers complained to Proctor's vice-president of human resources, Linda Buck, and to Proctor's chief operating officer, Garrett McGowan, about Staub's unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would "solve Staub's availability problems." Before such a plan could be put in place, however, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of his January Corrective Action notice. Relying upon this accusation (which Staub contended was entirely false), Buck reviewed Staub's personnel file and terminated him. Staub's termination notice stated that Staub had been terminated for violating the directive contained in Mulally's January Corrective Action notice.
Staub challenged his termination through Proctor's internal grievance procedures. Staub contended that his termination was improper because Mulally had fabricated the allegation underpinning the January Corrective Action notice due to her hostility towards his military obligations. Buck did not follow up with Mulally with respect to Staub's allegation, and did not reverse Staub's termination.
Staub then sued Proctor claiming a violation of the USERRA, alleging that his termination was illegal as it was motivated by hostility towards his U.S. Army Reserve obligations. Specifically, Staub argued that although Buck herself (who had actually terminated Staub), held no such hostility, Mulally and Korenchuk clearly did, and that "their actions influenced Buck's ultimate employment decision." Staub's claim proceeded to a jury trial, where the jury found in his favor and awarded him $57,640.00 in damages.
On appeal, the Seventh Circuit Court of Appeals reversed, holding that a "cat's-paw" theory of liability, such as the one that Staub had advanced in this case, could not be maintained unless the non-decisionmaker had exercised "singular influence," over the actual decisionmaker so that the decision to terminate was the "product of blind reliance." The Seventh Circuit held that since the evidence in this case showed that Buck was not "wholly dependent" upon either Mulally's or Korenchuk's advice, Staub had no cause of action under USERRA.
In a unanimous decision with two Justices concurring in the judgment, the Supreme Court reversed. The Court noted recognized that when creating a tort action under federal law, Congress "adopts the background of general tort law," including the concept of "proximate cause." In claims for intentional torts, for example, the Court noted that in order to be found liable, an individual must intend not only "the act itself," but "the consequences of the act." Therefore, adopting these tenets and applying them to the operative language of the USERRA statute, the Court held that: "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." As such, in order to prevail in such actions, a plaintiff cannot hold an employer liable simply by showing that the ultimate decisionmaker relied upon information that was (unbeknownst to the decisionmaker) prompted by discrimination. Rather, the plaintiff must prove that the originator of that discriminatory information created the information with the intent that such information would cause the plaintiff to suffer an adverse employment action.
The Court rejected Proctor's suggestion that the Court adopt a rule that a decisionmaker's independent investigation and rejection of an employee's allegations of discriminatory animus can insulate an employer from liability, as such an action would negate the effects of any prior discrimination. The Court held that "we are aware of no principle in tort or agency law under which an employer's mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of 'fault.' The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." The Court also rejected Justice Alito's suggestion that an employer should be held liable only when it "should be regarded as having delegated part of the decisionmaking power to the biased supervisor."
While it reversed the decision of the Seventh Circuit, the Court explicitly left two questions unanswered: First, the Court expressed no opinion as to whether an employer could be held liable under such a "cat's-paw" theory of liability if a co-worker, rather than a supervisor, committed a discriminatory action that influenced a subsequent adverse employment action. Second, the Court acknowledged that in this case, Staub took advantage of Proctor's internal grievance procedures after having been terminated, but refused to comment on whether Proctor would enjoy an affirmative defense to liability had Staub not done so. Therefore, one is likely to see these issues being litigated in the lower courts in the future.
You can read the Supreme Court's full opinion in Staub v. Proctor here: http://www.supremecourt.gov/opinions/10pdf/09-400.pdf
In this case, Vincent Staub worked as a medical technician for Proctor Hospital under 2004 when he was terminated for allegedly violating a "Corrective Action" disciplinary warning that had been placed in his employment file by his supervisors, Janice Mulally and Michael Korenchuk.
While employed at Proctor, Staub was a member of the U.S. Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks per year. At Staub's subsequent employment discrimination trial, the jury determined that both Mulally and Korenchuk were hostile to Staub's military obligations. Specifically, Mulally had scheduled Staub for additional shifts without notice so that he would "pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves," and Mulally had also informed one of Staub's co-workers that Staubs's "military duty had been a strain on the department," and asked that co-worker to help her "get rid of" Staub. Korenchuk referred to Staub's obligations to the Reserves as "a bunch of smoking and joking and a waste of taxpayers' money," and was aware that Mulally was "out to get" Staub.
In January of 2004, Mulally issued Staub a "Corrective Action" disciplinary warning for purportedly violating a company rule that required him to stay in his work area whenever he was not seeing a patient. This warning required Staub to report to either Mulally or Korenchuk when he had no patients or when his patient testing was completed. Staub contended at trial that the company rule allegedly invoked by Mulally did not exist, and that even if it did, he did not violate it.
On April 2, 2004, one of Staub's co-workers complained to Proctor's vice-president of human resources, Linda Buck, and to Proctor's chief operating officer, Garrett McGowan, about Staub's unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would "solve Staub's availability problems." Before such a plan could be put in place, however, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of his January Corrective Action notice. Relying upon this accusation (which Staub contended was entirely false), Buck reviewed Staub's personnel file and terminated him. Staub's termination notice stated that Staub had been terminated for violating the directive contained in Mulally's January Corrective Action notice.
Staub challenged his termination through Proctor's internal grievance procedures. Staub contended that his termination was improper because Mulally had fabricated the allegation underpinning the January Corrective Action notice due to her hostility towards his military obligations. Buck did not follow up with Mulally with respect to Staub's allegation, and did not reverse Staub's termination.
Staub then sued Proctor claiming a violation of the USERRA, alleging that his termination was illegal as it was motivated by hostility towards his U.S. Army Reserve obligations. Specifically, Staub argued that although Buck herself (who had actually terminated Staub), held no such hostility, Mulally and Korenchuk clearly did, and that "their actions influenced Buck's ultimate employment decision." Staub's claim proceeded to a jury trial, where the jury found in his favor and awarded him $57,640.00 in damages.
On appeal, the Seventh Circuit Court of Appeals reversed, holding that a "cat's-paw" theory of liability, such as the one that Staub had advanced in this case, could not be maintained unless the non-decisionmaker had exercised "singular influence," over the actual decisionmaker so that the decision to terminate was the "product of blind reliance." The Seventh Circuit held that since the evidence in this case showed that Buck was not "wholly dependent" upon either Mulally's or Korenchuk's advice, Staub had no cause of action under USERRA.
In a unanimous decision with two Justices concurring in the judgment, the Supreme Court reversed. The Court noted recognized that when creating a tort action under federal law, Congress "adopts the background of general tort law," including the concept of "proximate cause." In claims for intentional torts, for example, the Court noted that in order to be found liable, an individual must intend not only "the act itself," but "the consequences of the act." Therefore, adopting these tenets and applying them to the operative language of the USERRA statute, the Court held that: "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." As such, in order to prevail in such actions, a plaintiff cannot hold an employer liable simply by showing that the ultimate decisionmaker relied upon information that was (unbeknownst to the decisionmaker) prompted by discrimination. Rather, the plaintiff must prove that the originator of that discriminatory information created the information with the intent that such information would cause the plaintiff to suffer an adverse employment action.
The Court rejected Proctor's suggestion that the Court adopt a rule that a decisionmaker's independent investigation and rejection of an employee's allegations of discriminatory animus can insulate an employer from liability, as such an action would negate the effects of any prior discrimination. The Court held that "we are aware of no principle in tort or agency law under which an employer's mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of 'fault.' The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." The Court also rejected Justice Alito's suggestion that an employer should be held liable only when it "should be regarded as having delegated part of the decisionmaking power to the biased supervisor."
While it reversed the decision of the Seventh Circuit, the Court explicitly left two questions unanswered: First, the Court expressed no opinion as to whether an employer could be held liable under such a "cat's-paw" theory of liability if a co-worker, rather than a supervisor, committed a discriminatory action that influenced a subsequent adverse employment action. Second, the Court acknowledged that in this case, Staub took advantage of Proctor's internal grievance procedures after having been terminated, but refused to comment on whether Proctor would enjoy an affirmative defense to liability had Staub not done so. Therefore, one is likely to see these issues being litigated in the lower courts in the future.
You can read the Supreme Court's full opinion in Staub v. Proctor here: http://www.supremecourt.gov/opinions/10pdf/09-400.pdf
U.S. Supreme Court: Complaints By Public Employees Under Constitution's "Petition Clause" Only Protected If Related To Matters of Public Concern
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In Borough of Duryea v. Guarnieri, the U.S. Supreme Court held that a public employee who makes a complaint to a governmental employer under the "Petition Clause" of the U.S. Constitution is only protected from retaliation where the petition involves a matter of public concern. This decision harmonizes public employee complaints under the First Amendment's "Petition Clause" with prior Supreme Court decisions involving public employee complaints under the First Amendment's "Free Speech" clause.
The First Amendment to the U.S. Constitution protects "the right of the people. . . to petition the Government for a redress of grievances," (called the "Petition Clause") as well as the people's right to "freedom of speech (called the "Speech Clause)." This case concerned the extent to which public employees are protected by the Petition Clause when they make routine complaints to governmental employers.
Guarnieri was a police chief for a local borough in Pennsylvania, who filed a union grievance against the borough, challenging his termination. Following a subsequent arbitration, Guarnieri was ordered to be reinstated by the borough. After his reinstatement, borough council issued 11 written directives to Guarnieri concerning the performance of his duties. Guarnieri then filed a lawsuit against the borough, arguing that his original union grievance was a "petition" that was protected by the First Amendment's Petition Clause, and that the 11 directives that were subsequently issued by borough council were issued illegally in retaliation for Guarnieri's protected activity in filing a petition.
Diverging from the decisions of other Circuits, the Third Circuit Court of Appeals agreed, and held that Guarnieri's petition (in the form of his union grievance), was protected under the Petition Clause, even if the content of that petition did not address a matter of public concern.
The U.S. Supreme Court disagreed, and reversed the decision of the Third Circuit. In a 7-2 decision, with Justice Thomas filing a concurring opinion and Justice Scalia filing an opinion concurring in part and dissenting in part, the Court held that in order to find protection for complaints to governmental employers filed under the Petition Clause, public employees must be petitioning about a matter of public concern. The majority opinion noted that public employees who complain to their governmental employers enjoy protection from retaliation under the First Amendment's Speech Clause only where their complaints involve "matters of public concern," as opposed to matters of "purely private concern." Given this premise, the majority found no distinguishing reason to treat a public employee's "petition" to a government employer under one section of the First Amendment differently from a public employee's "speech" under a different section of the First Amendment.
Therefore, the Court's majority laid down the following rule: "If a public employee petitions as an employee on a matter of purely private concern, the employee's First Amendment interest must give way, as it does in speech cases. When a public employee petitions as a citizen on a matter of public concern, the employee's First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. If that balance favors the public employee, the employee's First Amendment claim will be sustained. If the interference with the government's operations is such that the balance favors the employer, the employee's First Amendment claim will fail even though the petition is on a matter of public concern."
You can read the Supreme Court's full decision in Borough of Duryea v. Guarnieri here: http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf
The First Amendment to the U.S. Constitution protects "the right of the people. . . to petition the Government for a redress of grievances," (called the "Petition Clause") as well as the people's right to "freedom of speech (called the "Speech Clause)." This case concerned the extent to which public employees are protected by the Petition Clause when they make routine complaints to governmental employers.
Guarnieri was a police chief for a local borough in Pennsylvania, who filed a union grievance against the borough, challenging his termination. Following a subsequent arbitration, Guarnieri was ordered to be reinstated by the borough. After his reinstatement, borough council issued 11 written directives to Guarnieri concerning the performance of his duties. Guarnieri then filed a lawsuit against the borough, arguing that his original union grievance was a "petition" that was protected by the First Amendment's Petition Clause, and that the 11 directives that were subsequently issued by borough council were issued illegally in retaliation for Guarnieri's protected activity in filing a petition.
Diverging from the decisions of other Circuits, the Third Circuit Court of Appeals agreed, and held that Guarnieri's petition (in the form of his union grievance), was protected under the Petition Clause, even if the content of that petition did not address a matter of public concern.
The U.S. Supreme Court disagreed, and reversed the decision of the Third Circuit. In a 7-2 decision, with Justice Thomas filing a concurring opinion and Justice Scalia filing an opinion concurring in part and dissenting in part, the Court held that in order to find protection for complaints to governmental employers filed under the Petition Clause, public employees must be petitioning about a matter of public concern. The majority opinion noted that public employees who complain to their governmental employers enjoy protection from retaliation under the First Amendment's Speech Clause only where their complaints involve "matters of public concern," as opposed to matters of "purely private concern." Given this premise, the majority found no distinguishing reason to treat a public employee's "petition" to a government employer under one section of the First Amendment differently from a public employee's "speech" under a different section of the First Amendment.
Therefore, the Court's majority laid down the following rule: "If a public employee petitions as an employee on a matter of purely private concern, the employee's First Amendment interest must give way, as it does in speech cases. When a public employee petitions as a citizen on a matter of public concern, the employee's First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. If that balance favors the public employee, the employee's First Amendment claim will be sustained. If the interference with the government's operations is such that the balance favors the employer, the employee's First Amendment claim will fail even though the petition is on a matter of public concern."
You can read the Supreme Court's full decision in Borough of Duryea v. Guarnieri here: http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf
In Title VII Cases, Sometimes It's All About the Numbers. . .
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On September 28, 2011, in the case of Meditz v. City of Newark the Third Circuit Court of Appeals found that the trial court had improperly dismissed a lawsuit against the City of Newark, which alleged that the City's residency requirement for its non-uniformed employees was unlawful under Title VII because it created an employment bias against white, non-Hispanic applicants. The Court of Appeals held that the trial court had failed to properly evaluate and consider the weight of the statistical evidence that had been presented by the plaintiff. In April of 2007, Gregory Meditz, a white male who resided in neighboring Rutherford, New Jersey, applied for a non-uniformed job with the City of Newark. Meditz was turned down for the job because he did not live in the City of Newark, and thus did not qualify for employment under a City Ordinance that required all non-uniformed City personnel to live within the City limits. Meditz sued, claiming that the City's residency requirement for its non-uniformed employees was discriminatory and unlawfully barred him from qualifying for a non-uniformed job with the City. Specifically, Meditz argued that the residency requirement worked a disparate impact on white, non-Hispanic job applicants because the racial make-up of the population of Newark did not reflect the racial make-up of the surrounding labor market. In support of his claims, Meditz produced statistical data that he gathered from publicly available sources, which revealed that in 2007, only 9.4% of the non-uniformed employees of the City of Newark were white, non-Hispanic, while 28.31% of the City's uniformed employees (who are not subject to a residency requirement) were white, non-Hispanics. Meditz also compared the statistics of the racial composition of the City's non-uniformed employees with the racial composition of the non-uniformed employees from the County of Essex, which maintained its County seat within the City of Newark. This comparison showed that 42.96% of the non-uniformed employees who worked for the County were white, non-Hispanics. Meditz also introduced evidence that in 2005, the percentage of white, non-Hispanics that constituted the non-uniformed employees of Essex County and 5 neighboring counties, ranged from 48.09% to 86.49%, with the percentages of white, non-Hispanics employed in the private labor force in those same counties being only slightly lower. The trial court, however, granted the City's motion for summary judgment, and tossed Meditz's lawsuit, concluding that "these statistics, standing alone, do not constitute sufficient evidence of a significantly discriminatory hiring pattern."On appeal, the Third Circuit reversed, finding that the trial court had misapplied the law and had failed to lend the appropriate weight to Meditz's statistical evidence. Specifically, the Court held that "Meditz offered statistical evidence showing that the percentage of white, non-Hispanics employed by Newark was lower than the population of white, non-Hispanics in the general population of Newark. Meditz also offered statistics showing the percentage of white, non-Hispanics in surrounding areas both for the general population and for the private and government work forces. Finally, Meditz offered evidence of the percentage of white, non-Hispanics employed by the Essex County government in Newark. Out of all these percentages, the lowest was the percentage of white, non-Hispanics employed by the City of Newark. This compilation of statistics supported Meditz's claim that white, non-Hispanics were under-represented in Newark's non-uniformed work force." This case provides an excellent illustration of how a disparate impact theory of discrimination under Title VII can be invaluable tool for an individual who believes he or she has been subjected to unlawful discrimination, because in these cases, evidence of discriminatory intent or bias on behalf of the employer is not required. All that a plaintiff needs in order to be successful is to establish a differential employment outcome or treatment that is based upon race, sex, religion, or national origin, which can be proven through statistical analysis and statistical deviations. After all, the numbers don't lie. You can read the Third Circuit's full opinion in Meditz v. City of Newark here: http://www.ca3.uscourts.gov/opinarch/102442p.pdf
Filming Co-workers In Partial State of Undress is Bad.... In Case You Didn't Know
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In the legal world, common sense and the law do not always go hand-in-hand. Sometimes what seems practically logical or predictable will not be legally sustainable (or vice-versa). But, on those rare occasions when the law and common sense can exist side-by-side without destroying each other like sparring gladiators, it can be refreshing.
This is one of those moments. In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them. The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly).
One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat) observed on the floor. Doe and her partner soon found themselves crawling with fleas. They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.
After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors. Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up. Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.
Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility. After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way. Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes.
Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident. When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices. A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed. Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.
Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock. With Doe standing with her back to the door, Joyce began to inspect Doe for fleas. Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts.
As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe. Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo. Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room. Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up." Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."
Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe. After which, Doe left the hospital in scrubs.
Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers. At least one officer testified that Foy had displayed a still image of Doe's bare buttocks. Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network. Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper.
Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment. Doe also claimed that the County was liable for an alleged failure to train their officers.
On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim. While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area." The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed. As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper.
The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them.
Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue.
So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.
You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf
This is one of those moments. In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them. The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly).
One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat) observed on the floor. Doe and her partner soon found themselves crawling with fleas. They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.
After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors. Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up. Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.
Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility. After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way. Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes.
Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident. When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices. A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed. Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.
Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock. With Doe standing with her back to the door, Joyce began to inspect Doe for fleas. Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts.
As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe. Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo. Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room. Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up." Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."
Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe. After which, Doe left the hospital in scrubs.
Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers. At least one officer testified that Foy had displayed a still image of Doe's bare buttocks. Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network. Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper.
Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment. Doe also claimed that the County was liable for an alleged failure to train their officers.
On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim. While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area." The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed. As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper.
The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them.
Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue.
So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.
You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf
20 Aralık 2012 Perşembe
U.S. Supreme Court - Government Employers May Ask "Reasonable Questions" in Employment Background Investigations
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On January 19, 2011, in the case of NASA v. Nelson, et al., the U.S. Supreme Court held that governmental employers are permitted to ask "reasonable questions," during employee background investigation checks without running afoul of employees' constitutional privacy rights.
This case concerned an employee background check process employed by NASA, consisting of two questionnaire forms. The first asked whether an employee had "used, possessed, supplied, or manufactured illegal drugs in the last year," and if so, then required the employee to describe the details of any "treatment or counseling received." Employees were also required to sign a release authorizing the Government to obtain personal information about employees from schools and past employers. The second form then asked open-ended questions about whether NASA had "any reason to question," an employee's "honesty or trustworthiness," or whether an employee had "adverse information," concerning an employee's "violations of the law," "financial integrity," "abuse of alcohol and/or other drugs," "mental or emotional stability," "general behavior or conduct," and "other matters." If an employee checks "yes" to any of those categories, the form required a further written explanation.
Various NASA employees sued, claiming that NASA's subjecting them to this employment background check process violated their constitutional right to "informational privacy." The District Court refused the employees' request for a preliminary injunction, but the Ninth Circuit Court of Appeals reversed, holding that with respect to the first form, NASA's requirement that an employee disclose drug treatment and counseling furthered no legitimate government interest and was thus likely unconstitutional. With respect to the second form, the Ninth Circuit determined that the open-ended questions asked by NASA were not narrowly tailored to meet the government's interests in verifying the employees' identities, and thus, likely violated the employees' constitutional rights.
In granting certiorari, the U.S. Supreme Court had the opportunity, for the second time in two years, to address the available breadth of privacy rights that may, or may not, be held by individuals who are employed in the public sector. One year ago, the Supreme Court had a similar opportunity in City of Ontario v. Quon, 130 S. Ct. 2619 (2010), which concerned whether a SWAT officer had a reasonable expectation of privacy in the content of text messages he had sent over a city-issued pager. In Quon, however, the Supreme Court specifically avoided any issues concerning employee privacy rights under the Fourth Amendment, but instead opted to resolve the case by holding that any search of the officer's text messages conducted by the City was reasonable, and thus, could not be a violation of the Fourth Amendment. For a thorough analysis of this case, see my earlier post entitled "U.S. Supreme Court Side-Steps Questions of Employee Privacy in Electronic Communications," from June 18, 2010..
In Nelson, however, the Supreme Court took the same tack as it did in Quon and once again avoided discussion concerning the thorny issues involving the privacy rights of public employees in the workplace. Instead, the Court stated that "we will assume for present purposes that the Government's challenged inquiries implicate a privacy interest of constitutional significance." That being said, however, the Court then proceeded to overrule the decision of the Ninth Circuit, and held that "whatever the scope of this [privacy] interest, it does not prevent the Government from asking reasonable questions of the sort included on the [NASA forms] in an employment background investigation that is subject to the [federal] Privacy Act's safeguards against public disclosure."
In so holding, the Supreme Court reaffirmed the long-standing tenet that "the Government has a much freer hand in dealing with citizen employees than it does when it brings its sovereign power to bear on citizens at large." The Court also recognized that the types of questions being challenged in this case were "part of a standard employment background check of the sort used by millions of private employers," that "the Government itself has been conducting employment investigations since the earliest days of the Republic," and that "[s]tandard background investigations similar to those at issue here became mandatory for all candidates for the federal civil service in 1953." As such, the Court recognized that the federal government has an interest in performing background checks on its employees and that "[r]easonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable work-force."
The Court rejected out of hand the employees' claims that the Government's broad authority in regulating and managing its affairs should not apply with as great a force to them, as they were "contract employees," not civil servants. The Court found this argument placed form over substance, holding that "the Government's interest as 'proprietor' in managing its operations . . . does not turn on such formalities," and noting that on the record before it, there was no relevant distinctions between the duties performed by NASA's civil servants and its contract employees.
Against this back-drop, the Court held that the questions asked by NASA on the two employment background check forms were "reasonable, employment-related inquiries that further the Government's interests in managing its internal operations." Specifically, the Court noted that the Government has a "good reason to ask employees about their recent illegal-drug use," namely, to ensure that it will have its "projects staffed by reliable, law-abiding persons who will efficiently and effectively discharge their duties." With this legitimate purpose, the Court determined that the form's follow-up questions concerning any treatment or counseling for illegal-drug use was also a reasonable method by which the Government could separate out those individuals who have taken steps to address and overcome their illegal drug problems, and use this as a mitigating factor in making employment decisions. In the Court's words, this "is a reasonable, and indeed humane, approach. . ."
The Supreme Court also rejected outright the employees' argument that the Government "when it requests job-related personal information in an employment background-check, has a constitutional burden to demonstrate that its questions are necessary or the least restrictive means of furthering its efforts."
The Court also held that the open-ended questions that so troubled the Ninth Circuit Court of Appeals, were in fact "reasonably aimed at identifying capable employees who will faithfully conduct the Government's business," and similar in type and scope to employment background questions frequently used by employers in the private sector.
Lastly, the Court recognized that any privacy interests held by the employees here were further protected by the fact that the NASA forms were governed by the federal Privacy Act, which allows the Government to maintain records about an employee "only to the extent the records are relevant and necessary to accomplish a purpose authorized by law," and requires "written consent before the Government may disclose records pertaining to any individual."
Therefore, in light of the Privacy Act's nondisclosure requirements, coupled with the fact that the questions posed on the two NASA forms "consist of reasonable inquiries in an employment background check," the Court held that NASA's background process did not violate any "constitutional right to informational privacy."
In a notable concurring opinion, Justice Scalia (joined by Justice Thomas), stated that he would have decided the case "on simpler grounds." Specifically, that "[a] federal constitutional right to 'informational privacy' does not exist." This concurrence may be a gloomy portent of how the Supreme Court may examine the issue of public-employee privacy rights in electronic communications when, and if, the Court ever decides to take it up.
You can read the full version of the Court's opinion here: http://www.supremecourt.gov/opinions/10pdf/09-530.pdf
This case concerned an employee background check process employed by NASA, consisting of two questionnaire forms. The first asked whether an employee had "used, possessed, supplied, or manufactured illegal drugs in the last year," and if so, then required the employee to describe the details of any "treatment or counseling received." Employees were also required to sign a release authorizing the Government to obtain personal information about employees from schools and past employers. The second form then asked open-ended questions about whether NASA had "any reason to question," an employee's "honesty or trustworthiness," or whether an employee had "adverse information," concerning an employee's "violations of the law," "financial integrity," "abuse of alcohol and/or other drugs," "mental or emotional stability," "general behavior or conduct," and "other matters." If an employee checks "yes" to any of those categories, the form required a further written explanation.
Various NASA employees sued, claiming that NASA's subjecting them to this employment background check process violated their constitutional right to "informational privacy." The District Court refused the employees' request for a preliminary injunction, but the Ninth Circuit Court of Appeals reversed, holding that with respect to the first form, NASA's requirement that an employee disclose drug treatment and counseling furthered no legitimate government interest and was thus likely unconstitutional. With respect to the second form, the Ninth Circuit determined that the open-ended questions asked by NASA were not narrowly tailored to meet the government's interests in verifying the employees' identities, and thus, likely violated the employees' constitutional rights.
In granting certiorari, the U.S. Supreme Court had the opportunity, for the second time in two years, to address the available breadth of privacy rights that may, or may not, be held by individuals who are employed in the public sector. One year ago, the Supreme Court had a similar opportunity in City of Ontario v. Quon, 130 S. Ct. 2619 (2010), which concerned whether a SWAT officer had a reasonable expectation of privacy in the content of text messages he had sent over a city-issued pager. In Quon, however, the Supreme Court specifically avoided any issues concerning employee privacy rights under the Fourth Amendment, but instead opted to resolve the case by holding that any search of the officer's text messages conducted by the City was reasonable, and thus, could not be a violation of the Fourth Amendment. For a thorough analysis of this case, see my earlier post entitled "U.S. Supreme Court Side-Steps Questions of Employee Privacy in Electronic Communications," from June 18, 2010..
In Nelson, however, the Supreme Court took the same tack as it did in Quon and once again avoided discussion concerning the thorny issues involving the privacy rights of public employees in the workplace. Instead, the Court stated that "we will assume for present purposes that the Government's challenged inquiries implicate a privacy interest of constitutional significance." That being said, however, the Court then proceeded to overrule the decision of the Ninth Circuit, and held that "whatever the scope of this [privacy] interest, it does not prevent the Government from asking reasonable questions of the sort included on the [NASA forms] in an employment background investigation that is subject to the [federal] Privacy Act's safeguards against public disclosure."
In so holding, the Supreme Court reaffirmed the long-standing tenet that "the Government has a much freer hand in dealing with citizen employees than it does when it brings its sovereign power to bear on citizens at large." The Court also recognized that the types of questions being challenged in this case were "part of a standard employment background check of the sort used by millions of private employers," that "the Government itself has been conducting employment investigations since the earliest days of the Republic," and that "[s]tandard background investigations similar to those at issue here became mandatory for all candidates for the federal civil service in 1953." As such, the Court recognized that the federal government has an interest in performing background checks on its employees and that "[r]easonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable work-force."
The Court rejected out of hand the employees' claims that the Government's broad authority in regulating and managing its affairs should not apply with as great a force to them, as they were "contract employees," not civil servants. The Court found this argument placed form over substance, holding that "the Government's interest as 'proprietor' in managing its operations . . . does not turn on such formalities," and noting that on the record before it, there was no relevant distinctions between the duties performed by NASA's civil servants and its contract employees.
Against this back-drop, the Court held that the questions asked by NASA on the two employment background check forms were "reasonable, employment-related inquiries that further the Government's interests in managing its internal operations." Specifically, the Court noted that the Government has a "good reason to ask employees about their recent illegal-drug use," namely, to ensure that it will have its "projects staffed by reliable, law-abiding persons who will efficiently and effectively discharge their duties." With this legitimate purpose, the Court determined that the form's follow-up questions concerning any treatment or counseling for illegal-drug use was also a reasonable method by which the Government could separate out those individuals who have taken steps to address and overcome their illegal drug problems, and use this as a mitigating factor in making employment decisions. In the Court's words, this "is a reasonable, and indeed humane, approach. . ."
The Supreme Court also rejected outright the employees' argument that the Government "when it requests job-related personal information in an employment background-check, has a constitutional burden to demonstrate that its questions are necessary or the least restrictive means of furthering its efforts."
The Court also held that the open-ended questions that so troubled the Ninth Circuit Court of Appeals, were in fact "reasonably aimed at identifying capable employees who will faithfully conduct the Government's business," and similar in type and scope to employment background questions frequently used by employers in the private sector.
Lastly, the Court recognized that any privacy interests held by the employees here were further protected by the fact that the NASA forms were governed by the federal Privacy Act, which allows the Government to maintain records about an employee "only to the extent the records are relevant and necessary to accomplish a purpose authorized by law," and requires "written consent before the Government may disclose records pertaining to any individual."
Therefore, in light of the Privacy Act's nondisclosure requirements, coupled with the fact that the questions posed on the two NASA forms "consist of reasonable inquiries in an employment background check," the Court held that NASA's background process did not violate any "constitutional right to informational privacy."
In a notable concurring opinion, Justice Scalia (joined by Justice Thomas), stated that he would have decided the case "on simpler grounds." Specifically, that "[a] federal constitutional right to 'informational privacy' does not exist." This concurrence may be a gloomy portent of how the Supreme Court may examine the issue of public-employee privacy rights in electronic communications when, and if, the Court ever decides to take it up.
You can read the full version of the Court's opinion here: http://www.supremecourt.gov/opinions/10pdf/09-530.pdf
US Supreme Court Adopts "Cat's-Paw" Theory In Military Discrimination Case
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In Staub v. Proctor Hospital, decided on March 1, 2011, the U.S. Supreme Court held, in the context of a case involving an employer's alleged violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." The significance of this opinion is two-fold: First, the Court through this opinion has explicitly sanctioned the applicability of "cat's-paw" theories of liability in an employment discrimination context. Second, there is nothing in the language of this decision that would suggest that the Court's analysis in this case is strictly confined to cases arising under USERRA. To the contrary, the Court itself acknowledges in the majority opinion that the operative statutory language of the USERRA, which prohibits an employer from denying employment or the benefits of employment to any person on the basis of that individual's membership in or obligation to a branch of the military, is "very similar to Title VII." As such, employees can now rely on this decision to advance "cat's-paw" theories of liability against employers in the traditional discrimination cases arising under Title VII.
In this case, Vincent Staub worked as a medical technician for Proctor Hospital under 2004 when he was terminated for allegedly violating a "Corrective Action" disciplinary warning that had been placed in his employment file by his supervisors, Janice Mulally and Michael Korenchuk.
While employed at Proctor, Staub was a member of the U.S. Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks per year. At Staub's subsequent employment discrimination trial, the jury determined that both Mulally and Korenchuk were hostile to Staub's military obligations. Specifically, Mulally had scheduled Staub for additional shifts without notice so that he would "pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves," and Mulally had also informed one of Staub's co-workers that Staubs's "military duty had been a strain on the department," and asked that co-worker to help her "get rid of" Staub. Korenchuk referred to Staub's obligations to the Reserves as "a bunch of smoking and joking and a waste of taxpayers' money," and was aware that Mulally was "out to get" Staub.
In January of 2004, Mulally issued Staub a "Corrective Action" disciplinary warning for purportedly violating a company rule that required him to stay in his work area whenever he was not seeing a patient. This warning required Staub to report to either Mulally or Korenchuk when he had no patients or when his patient testing was completed. Staub contended at trial that the company rule allegedly invoked by Mulally did not exist, and that even if it did, he did not violate it.
On April 2, 2004, one of Staub's co-workers complained to Proctor's vice-president of human resources, Linda Buck, and to Proctor's chief operating officer, Garrett McGowan, about Staub's unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would "solve Staub's availability problems." Before such a plan could be put in place, however, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of his January Corrective Action notice. Relying upon this accusation (which Staub contended was entirely false), Buck reviewed Staub's personnel file and terminated him. Staub's termination notice stated that Staub had been terminated for violating the directive contained in Mulally's January Corrective Action notice.
Staub challenged his termination through Proctor's internal grievance procedures. Staub contended that his termination was improper because Mulally had fabricated the allegation underpinning the January Corrective Action notice due to her hostility towards his military obligations. Buck did not follow up with Mulally with respect to Staub's allegation, and did not reverse Staub's termination.
Staub then sued Proctor claiming a violation of the USERRA, alleging that his termination was illegal as it was motivated by hostility towards his U.S. Army Reserve obligations. Specifically, Staub argued that although Buck herself (who had actually terminated Staub), held no such hostility, Mulally and Korenchuk clearly did, and that "their actions influenced Buck's ultimate employment decision." Staub's claim proceeded to a jury trial, where the jury found in his favor and awarded him $57,640.00 in damages.
On appeal, the Seventh Circuit Court of Appeals reversed, holding that a "cat's-paw" theory of liability, such as the one that Staub had advanced in this case, could not be maintained unless the non-decisionmaker had exercised "singular influence," over the actual decisionmaker so that the decision to terminate was the "product of blind reliance." The Seventh Circuit held that since the evidence in this case showed that Buck was not "wholly dependent" upon either Mulally's or Korenchuk's advice, Staub had no cause of action under USERRA.
In a unanimous decision with two Justices concurring in the judgment, the Supreme Court reversed. The Court noted recognized that when creating a tort action under federal law, Congress "adopts the background of general tort law," including the concept of "proximate cause." In claims for intentional torts, for example, the Court noted that in order to be found liable, an individual must intend not only "the act itself," but "the consequences of the act." Therefore, adopting these tenets and applying them to the operative language of the USERRA statute, the Court held that: "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." As such, in order to prevail in such actions, a plaintiff cannot hold an employer liable simply by showing that the ultimate decisionmaker relied upon information that was (unbeknownst to the decisionmaker) prompted by discrimination. Rather, the plaintiff must prove that the originator of that discriminatory information created the information with the intent that such information would cause the plaintiff to suffer an adverse employment action.
The Court rejected Proctor's suggestion that the Court adopt a rule that a decisionmaker's independent investigation and rejection of an employee's allegations of discriminatory animus can insulate an employer from liability, as such an action would negate the effects of any prior discrimination. The Court held that "we are aware of no principle in tort or agency law under which an employer's mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of 'fault.' The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." The Court also rejected Justice Alito's suggestion that an employer should be held liable only when it "should be regarded as having delegated part of the decisionmaking power to the biased supervisor."
While it reversed the decision of the Seventh Circuit, the Court explicitly left two questions unanswered: First, the Court expressed no opinion as to whether an employer could be held liable under such a "cat's-paw" theory of liability if a co-worker, rather than a supervisor, committed a discriminatory action that influenced a subsequent adverse employment action. Second, the Court acknowledged that in this case, Staub took advantage of Proctor's internal grievance procedures after having been terminated, but refused to comment on whether Proctor would enjoy an affirmative defense to liability had Staub not done so. Therefore, one is likely to see these issues being litigated in the lower courts in the future.
You can read the Supreme Court's full opinion in Staub v. Proctor here: http://www.supremecourt.gov/opinions/10pdf/09-400.pdf
In this case, Vincent Staub worked as a medical technician for Proctor Hospital under 2004 when he was terminated for allegedly violating a "Corrective Action" disciplinary warning that had been placed in his employment file by his supervisors, Janice Mulally and Michael Korenchuk.
While employed at Proctor, Staub was a member of the U.S. Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks per year. At Staub's subsequent employment discrimination trial, the jury determined that both Mulally and Korenchuk were hostile to Staub's military obligations. Specifically, Mulally had scheduled Staub for additional shifts without notice so that he would "pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves," and Mulally had also informed one of Staub's co-workers that Staubs's "military duty had been a strain on the department," and asked that co-worker to help her "get rid of" Staub. Korenchuk referred to Staub's obligations to the Reserves as "a bunch of smoking and joking and a waste of taxpayers' money," and was aware that Mulally was "out to get" Staub.
In January of 2004, Mulally issued Staub a "Corrective Action" disciplinary warning for purportedly violating a company rule that required him to stay in his work area whenever he was not seeing a patient. This warning required Staub to report to either Mulally or Korenchuk when he had no patients or when his patient testing was completed. Staub contended at trial that the company rule allegedly invoked by Mulally did not exist, and that even if it did, he did not violate it.
On April 2, 2004, one of Staub's co-workers complained to Proctor's vice-president of human resources, Linda Buck, and to Proctor's chief operating officer, Garrett McGowan, about Staub's unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would "solve Staub's availability problems." Before such a plan could be put in place, however, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of his January Corrective Action notice. Relying upon this accusation (which Staub contended was entirely false), Buck reviewed Staub's personnel file and terminated him. Staub's termination notice stated that Staub had been terminated for violating the directive contained in Mulally's January Corrective Action notice.
Staub challenged his termination through Proctor's internal grievance procedures. Staub contended that his termination was improper because Mulally had fabricated the allegation underpinning the January Corrective Action notice due to her hostility towards his military obligations. Buck did not follow up with Mulally with respect to Staub's allegation, and did not reverse Staub's termination.
Staub then sued Proctor claiming a violation of the USERRA, alleging that his termination was illegal as it was motivated by hostility towards his U.S. Army Reserve obligations. Specifically, Staub argued that although Buck herself (who had actually terminated Staub), held no such hostility, Mulally and Korenchuk clearly did, and that "their actions influenced Buck's ultimate employment decision." Staub's claim proceeded to a jury trial, where the jury found in his favor and awarded him $57,640.00 in damages.
On appeal, the Seventh Circuit Court of Appeals reversed, holding that a "cat's-paw" theory of liability, such as the one that Staub had advanced in this case, could not be maintained unless the non-decisionmaker had exercised "singular influence," over the actual decisionmaker so that the decision to terminate was the "product of blind reliance." The Seventh Circuit held that since the evidence in this case showed that Buck was not "wholly dependent" upon either Mulally's or Korenchuk's advice, Staub had no cause of action under USERRA.
In a unanimous decision with two Justices concurring in the judgment, the Supreme Court reversed. The Court noted recognized that when creating a tort action under federal law, Congress "adopts the background of general tort law," including the concept of "proximate cause." In claims for intentional torts, for example, the Court noted that in order to be found liable, an individual must intend not only "the act itself," but "the consequences of the act." Therefore, adopting these tenets and applying them to the operative language of the USERRA statute, the Court held that: "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." As such, in order to prevail in such actions, a plaintiff cannot hold an employer liable simply by showing that the ultimate decisionmaker relied upon information that was (unbeknownst to the decisionmaker) prompted by discrimination. Rather, the plaintiff must prove that the originator of that discriminatory information created the information with the intent that such information would cause the plaintiff to suffer an adverse employment action.
The Court rejected Proctor's suggestion that the Court adopt a rule that a decisionmaker's independent investigation and rejection of an employee's allegations of discriminatory animus can insulate an employer from liability, as such an action would negate the effects of any prior discrimination. The Court held that "we are aware of no principle in tort or agency law under which an employer's mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of 'fault.' The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." The Court also rejected Justice Alito's suggestion that an employer should be held liable only when it "should be regarded as having delegated part of the decisionmaking power to the biased supervisor."
While it reversed the decision of the Seventh Circuit, the Court explicitly left two questions unanswered: First, the Court expressed no opinion as to whether an employer could be held liable under such a "cat's-paw" theory of liability if a co-worker, rather than a supervisor, committed a discriminatory action that influenced a subsequent adverse employment action. Second, the Court acknowledged that in this case, Staub took advantage of Proctor's internal grievance procedures after having been terminated, but refused to comment on whether Proctor would enjoy an affirmative defense to liability had Staub not done so. Therefore, one is likely to see these issues being litigated in the lower courts in the future.
You can read the Supreme Court's full opinion in Staub v. Proctor here: http://www.supremecourt.gov/opinions/10pdf/09-400.pdf
U.S. Supreme Court: Complaints By Public Employees Under Constitution's "Petition Clause" Only Protected If Related To Matters of Public Concern
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In Borough of Duryea v. Guarnieri, the U.S. Supreme Court held that a public employee who makes a complaint to a governmental employer under the "Petition Clause" of the U.S. Constitution is only protected from retaliation where the petition involves a matter of public concern. This decision harmonizes public employee complaints under the First Amendment's "Petition Clause" with prior Supreme Court decisions involving public employee complaints under the First Amendment's "Free Speech" clause.
The First Amendment to the U.S. Constitution protects "the right of the people. . . to petition the Government for a redress of grievances," (called the "Petition Clause") as well as the people's right to "freedom of speech (called the "Speech Clause)." This case concerned the extent to which public employees are protected by the Petition Clause when they make routine complaints to governmental employers.
Guarnieri was a police chief for a local borough in Pennsylvania, who filed a union grievance against the borough, challenging his termination. Following a subsequent arbitration, Guarnieri was ordered to be reinstated by the borough. After his reinstatement, borough council issued 11 written directives to Guarnieri concerning the performance of his duties. Guarnieri then filed a lawsuit against the borough, arguing that his original union grievance was a "petition" that was protected by the First Amendment's Petition Clause, and that the 11 directives that were subsequently issued by borough council were issued illegally in retaliation for Guarnieri's protected activity in filing a petition.
Diverging from the decisions of other Circuits, the Third Circuit Court of Appeals agreed, and held that Guarnieri's petition (in the form of his union grievance), was protected under the Petition Clause, even if the content of that petition did not address a matter of public concern.
The U.S. Supreme Court disagreed, and reversed the decision of the Third Circuit. In a 7-2 decision, with Justice Thomas filing a concurring opinion and Justice Scalia filing an opinion concurring in part and dissenting in part, the Court held that in order to find protection for complaints to governmental employers filed under the Petition Clause, public employees must be petitioning about a matter of public concern. The majority opinion noted that public employees who complain to their governmental employers enjoy protection from retaliation under the First Amendment's Speech Clause only where their complaints involve "matters of public concern," as opposed to matters of "purely private concern." Given this premise, the majority found no distinguishing reason to treat a public employee's "petition" to a government employer under one section of the First Amendment differently from a public employee's "speech" under a different section of the First Amendment.
Therefore, the Court's majority laid down the following rule: "If a public employee petitions as an employee on a matter of purely private concern, the employee's First Amendment interest must give way, as it does in speech cases. When a public employee petitions as a citizen on a matter of public concern, the employee's First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. If that balance favors the public employee, the employee's First Amendment claim will be sustained. If the interference with the government's operations is such that the balance favors the employer, the employee's First Amendment claim will fail even though the petition is on a matter of public concern."
You can read the Supreme Court's full decision in Borough of Duryea v. Guarnieri here: http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf
The First Amendment to the U.S. Constitution protects "the right of the people. . . to petition the Government for a redress of grievances," (called the "Petition Clause") as well as the people's right to "freedom of speech (called the "Speech Clause)." This case concerned the extent to which public employees are protected by the Petition Clause when they make routine complaints to governmental employers.
Guarnieri was a police chief for a local borough in Pennsylvania, who filed a union grievance against the borough, challenging his termination. Following a subsequent arbitration, Guarnieri was ordered to be reinstated by the borough. After his reinstatement, borough council issued 11 written directives to Guarnieri concerning the performance of his duties. Guarnieri then filed a lawsuit against the borough, arguing that his original union grievance was a "petition" that was protected by the First Amendment's Petition Clause, and that the 11 directives that were subsequently issued by borough council were issued illegally in retaliation for Guarnieri's protected activity in filing a petition.
Diverging from the decisions of other Circuits, the Third Circuit Court of Appeals agreed, and held that Guarnieri's petition (in the form of his union grievance), was protected under the Petition Clause, even if the content of that petition did not address a matter of public concern.
The U.S. Supreme Court disagreed, and reversed the decision of the Third Circuit. In a 7-2 decision, with Justice Thomas filing a concurring opinion and Justice Scalia filing an opinion concurring in part and dissenting in part, the Court held that in order to find protection for complaints to governmental employers filed under the Petition Clause, public employees must be petitioning about a matter of public concern. The majority opinion noted that public employees who complain to their governmental employers enjoy protection from retaliation under the First Amendment's Speech Clause only where their complaints involve "matters of public concern," as opposed to matters of "purely private concern." Given this premise, the majority found no distinguishing reason to treat a public employee's "petition" to a government employer under one section of the First Amendment differently from a public employee's "speech" under a different section of the First Amendment.
Therefore, the Court's majority laid down the following rule: "If a public employee petitions as an employee on a matter of purely private concern, the employee's First Amendment interest must give way, as it does in speech cases. When a public employee petitions as a citizen on a matter of public concern, the employee's First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. If that balance favors the public employee, the employee's First Amendment claim will be sustained. If the interference with the government's operations is such that the balance favors the employer, the employee's First Amendment claim will fail even though the petition is on a matter of public concern."
You can read the Supreme Court's full decision in Borough of Duryea v. Guarnieri here: http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf
In Title VII Cases, Sometimes It's All About the Numbers. . .
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On September 28, 2011, in the case of Meditz v. City of Newark the Third Circuit Court of Appeals found that the trial court had improperly dismissed a lawsuit against the City of Newark, which alleged that the City's residency requirement for its non-uniformed employees was unlawful under Title VII because it created an employment bias against white, non-Hispanic applicants. The Court of Appeals held that the trial court had failed to properly evaluate and consider the weight of the statistical evidence that had been presented by the plaintiff. In April of 2007, Gregory Meditz, a white male who resided in neighboring Rutherford, New Jersey, applied for a non-uniformed job with the City of Newark. Meditz was turned down for the job because he did not live in the City of Newark, and thus did not qualify for employment under a City Ordinance that required all non-uniformed City personnel to live within the City limits. Meditz sued, claiming that the City's residency requirement for its non-uniformed employees was discriminatory and unlawfully barred him from qualifying for a non-uniformed job with the City. Specifically, Meditz argued that the residency requirement worked a disparate impact on white, non-Hispanic job applicants because the racial make-up of the population of Newark did not reflect the racial make-up of the surrounding labor market. In support of his claims, Meditz produced statistical data that he gathered from publicly available sources, which revealed that in 2007, only 9.4% of the non-uniformed employees of the City of Newark were white, non-Hispanic, while 28.31% of the City's uniformed employees (who are not subject to a residency requirement) were white, non-Hispanics. Meditz also compared the statistics of the racial composition of the City's non-uniformed employees with the racial composition of the non-uniformed employees from the County of Essex, which maintained its County seat within the City of Newark. This comparison showed that 42.96% of the non-uniformed employees who worked for the County were white, non-Hispanics. Meditz also introduced evidence that in 2005, the percentage of white, non-Hispanics that constituted the non-uniformed employees of Essex County and 5 neighboring counties, ranged from 48.09% to 86.49%, with the percentages of white, non-Hispanics employed in the private labor force in those same counties being only slightly lower. The trial court, however, granted the City's motion for summary judgment, and tossed Meditz's lawsuit, concluding that "these statistics, standing alone, do not constitute sufficient evidence of a significantly discriminatory hiring pattern."On appeal, the Third Circuit reversed, finding that the trial court had misapplied the law and had failed to lend the appropriate weight to Meditz's statistical evidence. Specifically, the Court held that "Meditz offered statistical evidence showing that the percentage of white, non-Hispanics employed by Newark was lower than the population of white, non-Hispanics in the general population of Newark. Meditz also offered statistics showing the percentage of white, non-Hispanics in surrounding areas both for the general population and for the private and government work forces. Finally, Meditz offered evidence of the percentage of white, non-Hispanics employed by the Essex County government in Newark. Out of all these percentages, the lowest was the percentage of white, non-Hispanics employed by the City of Newark. This compilation of statistics supported Meditz's claim that white, non-Hispanics were under-represented in Newark's non-uniformed work force." This case provides an excellent illustration of how a disparate impact theory of discrimination under Title VII can be invaluable tool for an individual who believes he or she has been subjected to unlawful discrimination, because in these cases, evidence of discriminatory intent or bias on behalf of the employer is not required. All that a plaintiff needs in order to be successful is to establish a differential employment outcome or treatment that is based upon race, sex, religion, or national origin, which can be proven through statistical analysis and statistical deviations. After all, the numbers don't lie. You can read the Third Circuit's full opinion in Meditz v. City of Newark here: http://www.ca3.uscourts.gov/opinarch/102442p.pdf
Filming Co-workers In Partial State of Undress is Bad.... In Case You Didn't Know
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In the legal world, common sense and the law do not always go hand-in-hand. Sometimes what seems practically logical or predictable will not be legally sustainable (or vice-versa). But, on those rare occasions when the law and common sense can exist side-by-side without destroying each other like sparring gladiators, it can be refreshing.
This is one of those moments. In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them. The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly).
One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat) observed on the floor. Doe and her partner soon found themselves crawling with fleas. They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.
After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors. Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up. Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.
Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility. After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way. Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes.
Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident. When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices. A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed. Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.
Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock. With Doe standing with her back to the door, Joyce began to inspect Doe for fleas. Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts.
As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe. Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo. Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room. Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up." Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."
Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe. After which, Doe left the hospital in scrubs.
Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers. At least one officer testified that Foy had displayed a still image of Doe's bare buttocks. Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network. Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper.
Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment. Doe also claimed that the County was liable for an alleged failure to train their officers.
On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim. While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area." The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed. As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper.
The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them.
Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue.
So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.
You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf
This is one of those moments. In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them. The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly).
One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat) observed on the floor. Doe and her partner soon found themselves crawling with fleas. They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.
After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors. Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up. Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.
Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility. After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way. Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes.
Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident. When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices. A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed. Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.
Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock. With Doe standing with her back to the door, Joyce began to inspect Doe for fleas. Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts.
As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe. Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo. Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room. Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up." Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."
Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe. After which, Doe left the hospital in scrubs.
Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers. At least one officer testified that Foy had displayed a still image of Doe's bare buttocks. Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network. Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper.
Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment. Doe also claimed that the County was liable for an alleged failure to train their officers.
On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim. While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area." The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed. As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper.
The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them.
Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue.
So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.
You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf
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