EMPLOYMENT LAW UPDATE

By Joshua Skinner

United States Supreme Court

The police department did not violate Plaintiff’s First Amendment right to free speech when it terminated plaintiff’s employment when his outside activities brought the police department into disrepute.

John Roe, a San Diego police officer, made a video showing himself stripping off a police uniform and engaging in sexual acts. He sold the video on the adults-only section of eBay. While he was not wearing a San Diego police uniform in the movie, links to his user name brought up San Diego Police Department uniforms that he was also selling. Roe also offered, on eBay, to make custom videos of a sexual nature. Roe was ordered by his chain of command to remove the items and information from the internet. While Roe did remove some of the items, he still advertised his willingness to make custom videos and described videos that had already been sold. When SDPD learned that Roe he was still selling these items on eBay, he was dismissed from the police force.

Roe contended that he was dismissed in violation of his First Amendment rights. The District Court granted summary judgment to the SDPD, but the Ninth Circuit Court of Appeals reversed, concluding that Roe’s expression was protected by the First Amendment. The Supreme Court reversed the Ninth Circuit, noting that the SDPD had demonstrated legitimate and substantial interests of its own that were compromised by Roe’s conduct. Roe’s activities and use of police items "brought the mission of the employer and the professionalism of its officers into serious disrepute."

Fifth Circuit

Under the MacDonald Douglas burden shifting analysis once the employer meets its burden by providing a legitimate, non-discriminatory reason for the adverse employment action, a plaintiff may prove discrimination by either showing that the offered reason is pre-textual or by showing that discriminatory animus was nevertheless a motivation factor.

Machinchick was employed by PB Power, Inc. in its Houston office. PB Power began the process of trying to bring its operations "into the 21^st century." Among the objectives of this process was the hiring of younger employees. Machinchick, age 63, had been constantly reviewed as an excellent employee, but his employment was soon thereafter terminated on the grounds that he was unwilling to change. The district court disposed of the case on summary judgment and Machinchick appealed. The Fifth Circuit reversed and explained that employment discrimination cases under the ADEA are divided into two categories: (1) those in which the employee attempts to show discrimination based on direct evidence and (2) those in which the employee attempts to show discrimination based on circumstantial evidence. In cases involving circumstantial evidence, the employee must initial make a prima facie case of age discrimination. If the employee establishes a prima facie case, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the action. If the employer provides such a reason, the burden shifts back to the plaintiff and the plaintiff must either (1) provide evidence that the proffered reason(s) are pre-textual or (2) provide evidence that age discrimination was nevertheless a motivating factor in the employment action. If the employee attempts to show discrimination under the motivating factor test, the employer may provide evidence that the decision would have been made even in the absence of the discriminatory motive.

In employment discrimination cases, other employees are similarly situated if all of their circumstances are nearly identical with that of the plaintiff.

Perez, an employee of the Texas Department of Criminal Justice was involved in a stabbing incident at a nearby restaurant. Perez was charged with stabbing a man who had previously been in the prison. Perez was interviewed by his supervisor and given a Garrity warning. However, Perez refused to cooperate. An investigation was conducted and Internal Affairs. IA concluded that Perez had acted inappropriately. Because of his conduct and his refusal to cooperate with the investigation, Perez was fired. Perez brought suit under Title VII alleging race discrimination. At trial Perez put on evidence of the treatment of other employees. The jury instruction on similarly situated persons said that similarly situated persons were other employees whose misconduct was of comparable seriousness. However, the Fifth Circuit held that this was reversible error because the instruction was insufficient. The jury instruction should have stated that all of the employee’s circumstances must be nearly identical in order to be considered a similarly situated person.

In a constructive discharge case, courts can consider evidence of discriminatory or retaliatory intent in determining whether the employee acted in accordance with what a reasonable employee would have done.

Haley took medical leave under the Federal Medical Leave Act (FMLA). When she returned to work, she claims that she was forced to suffer humiliation and ostracization from her peers, in addition to an overly severe performance plan and micromanagement by her superiors. The district court excluded evidence tending to show her superiors’ intent to remove her from her job while she was on FMLA leave. The Fifth Circuit held that this exclusion was erroneous and stated, "Therefore, the correct question to ask here is whether a reasonable employee who received similar information of what events had transpired while she was on leave, including the excluded evidence construed as showing employer intent, and otherwise experienced what Haley did after her return to work at Alliance would have felt compelled to quit." The Fifth Circuit concluded that Haley had not acted reasonably in resigning without at least attempting to resolve the matter with an internal complaint of some sort.

Texas Supreme Court

Failure to supervise cannot, of itself, constitute the "use of personal property" under the Texas Tort Claims Act.

The drama club hired Michael Wonio to direct their production of Dracula. Wonio decided to use a Bowie knife in a scene where Harker stabs Dracula (Bishop) with a knife. During a performance, Harker missed the stab pad and Bishop’s lung was punctured. Bishop brought suit claiming that the university was liable for the failure of the faculty advisors to enforce the school policy and that the university was liable for Wonio’s decision to use the knife. The Texas Supreme Court held that the alleged failure of the faculty advisors to properly supervise the performance did not constitute a "use of personal property" under the Texas Tort Claims Act (TTCA). The Texas Supreme Court also held that Wonio was an independent contractor because he performed the specialized task of directing a play, was paid by the job, furnished his own props, had no contract, and was not on TAMU’s tax rolls. As a result, Wonio was not an employee for whom TAMU could be liable under the TTCA.

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