"Last Chance Agreement" Failed To Contain Waiver Of "Skelly" Rights

Posted by Guest Author on September 29, 2011

This guest post was authored by James Oldendorph

 

Signing-Document.JPGOn August 3, 2011, the Ninth Circuit U.S. Court of Appeals held that a public employee had not knowingly waived his right to a due process pre-termination hearing by signing a “last chance agreement,” and that the public employer violated his due process right by not providing such a hearing prior to termination.

In Walls v. Central Contra Costa Transit Authority, a  public employee was terminated January 27, 2006 but then reinstated  March 2, 2006 pursuant to a last chance agreement which provided that any “non-compliance with the stipulations [of the agreement] w[ould] result in . . . immediate and final termination.”  Very soon thereafter, Walls violated the last chance agreement by incurring an unexcused absence from work.  He was then summarily terminated without any sort of pre-disciplinary procedure.  Walls then filed suit, alleging that his termination was improper, in part, because it was not preceded by a Skelly meeting.  The employer, in response, alleged that the employee was not entitled to any Skelly rights because the last chance agreement used language that demonstrated the employee’s status had been altered to “at-will,” thereby divesting him of any procedural due process rights.  The Court of Appeals disagreed.

The Court found, first, that it was not clear that the phrase “immediate and final termination” used in the context of a last chance agreement necessarily signaled that the termination would take effect without a hearing or process of any kind.  Second, the Court found that it was certainly not clear Walls knew and understood when he signed the last chance agreement that he was waiving his right to due process in the form of a pre-termination hearing.  Neither did he acknowledge or understand that he would thereafter be treated as an at-will employee. 

While recognizing that “[a] public employee may waive his right to due process,” the Court cautioned that “federal courts ‘indulge every reasonable presumption against waiver of fundamental constitutional rights’ and ‘do not presume acquiescence in the loss of fundamental rights.’” As a result, the Court found that the agreement’s failure to provide expressly that the employee would waive any Skelly rights and/or rights to a pre-termination hearing implied that those rights were not waived and remained intact. Accordingly, the Court found that the employer in fact violated the employee’s due process rights under the United States and California Constitutions when it terminated him without any procedural due process.

This case stresses the importance of public employers correctly drafting a “last chance” settlement agreement, i.e., one which clearly identifies the specific rights that are to be waived by the employee and one which specifies the consequences of further misconduct.

Recent EEOC Disability Discrimination Lawsuits Are A Reminder To Employers To Comply With The ADA

Posted by Elizabeth Arce on September 27, 2011

Since the beginning of month, the U.S. Equal Employment Opportunity Commission (“EEOC”) has filed a dozen lawsuits against employers for disability discrimination.  Four lawsuits, which were filed in the Northern and Eastern Districts of the U.S. District Court, address various facets of disability discrimination.

One of the cases was filed against Walgreens drug store for failing to accommodate and for firing a diabetic employee who was cashier in the company’s South San Francisco store.  The employee, who worked for Walgreens for nearly 18 years without a blemish in her work history, opened a bag of chips while on duty because she was suffering from an attack of low blood sugar.  The chips cost less than two dollars and the employee paid for it.  The EEOC alleges that the company fired her after it learned of the incident although it knew the employee was diabetic. 

The EEOC also filed a lawsuit against Merritt Restaurant and Bakery, an Oakland eatery, for firing an employee who suffered from seizures.  The employee, a cook and kitchen manager, had a seizure during the night shift.  Although the employee’s physician cleared him to return to work, the employer delayed his reinstatement and transferred him to the day shift which resulted in fewer work hours and less pay.  According to the EEOC, the employee complained about the change in his work conditions and was fired.

Modesto retailer Buy-Rite Thrift Store fired an epileptic employee after he had small seizures at work.  The EEOC alleges that the company improperly “relied on its own judgment – which is not consistent with the law – to determine that [the employee] was a danger to himself and others” instead of asking the employee to “take a fitness exam or provide medical documentation of his ability to perform the job duties required of his position.”

Finally, the owner of a McDonald’s in Oakhurst was sued by the EEOC for demoting and causing the constructive discharge of an employee with cerebral palsy.  The employee had worked for a prior owner since 2006 without incident.  In fact, the employee had been promoted to a supervisory position.  Within two months of new ownership taking over the McDonald’s operations in 2009, the employee was demoted to a janitorial position.  They also cut his hours and reduced his pay.  The EEOC alleges that the employee was forced to quit his job as a result of the company’s treatment of him.  

While it is too early to know whether these employers will vigorously defend their actions, these lawsuits demonstrate that disability discrimination can come in many forms.  Important lessons can also be learned from these cases.  First, employers should refrain from forming their own opinions on whether an employee is medically or physically able to perform the essential functions of the job.  If there is a valid question as to the employee’s abilities, the employer should ask the employee to take a fitness for duty exam or provide medical documentation certifying fitness.  Second, employers must be flexible in accommodating disabled employees.  This may mean providing accommodations if the employee experiences symptoms related to his or her disability in the workplace.  For example, Walgreens could have accommodated the diabetic employee immediately by simply allowing her to eat the chips and take a break long enough to allow her to raise her blood sugar.  Finally, if an employer wants to change the working conditions of a disabled employee, the employer should evaluate the reasons for the change to make sure it is for legitimate non-discriminatory business reasons.

Fifth Circuit Rules Cheerleader's Free Speech Claims Were Not Frivolous

Posted by Morin Jacob on September 20, 2011

On September 12, 2011, in John Doe and Jane Doe v. Silsbee Independent School District, the U.S. Fifth Circuit Court of Appeals in Texas ruled that a high school student will not be required to pay attorney’s fees to the school district for her First Amendment free speech claims, but she will be required to pay attorney’s fees for the claims the Court of Appeals upheld as frivolous. 

School-Spirit.pngThis controversial case has been in the spotlight since 2008.  In October 2008, H.S., a cheerleader at Silsbee High School, was allegedly sexually assaulted by two classmates, Bolton and Rountree, at a private party.  The case went to a grand jury.  The grand jury declined to indict either Bolton or Rountree. 

After the grand jury’s refusal to issue indictments, H.S. refused to cheer for Bolton, a Silsee basketball team member, during a varsity game.  H.S. alleged that she symbolically protested and expressed herself by folding her arms or leaving the rest of her squad when Bolton shot free throws.  Following H.S. protest, the superintendent and principal of the high school allegedly pulled H.S. aside and told her to cheer for Bolton or go home.  H.S. refused to cheer for Bolton, and she was kicked off of the cheerleading squad for her refusal to do so.  

H.S. sued, alleging multiple civil rights violations, including being retaliated against for exercising her free speech, due process and equal protection rights.  H.S. lost her case.  As a result, defendants sought their attorney’s fees, alleging that H.S.'s lawsuit was "patently frivolous, unreasonable, vexatious, and utterly without foundation."  The defendants were awarded attorney's fees totaling $38,903.64.

The Court of Appeals reviewed whether the award of attorney’s fees was appropriate.  The Court largely sided with the District Court that had initially awarded the defendants fees.  The Fifth Circuit upheld the lower court’s ruling that the due process and equal protection claims were frivolous and ruled that H.S. had failed to allege sufficient facts to support those claims. 

However, the Court  ruled that H.S. First Amendment claim, where she alleged the high school violated her free speech rights after kicking her off the cheerleading team in retaliation for her symbolic protest, was not frivolous.  The Court found that the defendants had kicked H.S. off the cheerleading team because she refused to cheer.  The question was whether H.S. silent protest was speech protected by the First Amendment.

Although H.S. free speech claim was unsuccessful, the Court of Appeals believed that her argument was not frivolous.  The Court stated that, even if there were a low chance that the audience would understand her protest, H.S. reasonably could have argued that the audience knew the background of her alleged sexual assault, and would have thereby understood the meaning of her symbolic speech.  The Fifth Circuit found that the trial court had erred in concluding that H.S.  First Amendment claims were frivolous.  The Court remanded the case to recalculate the attorney's fees award without the cost of the defense relating to the First Amendment claims. 

New CalPERS Reporting System Launches September 19th; Employers Must Ensure Legal PERS Practices Now To Avoid Possible Audits

Posted by Frances Rogers on September 16, 2011

This post was co-authored by Steve Berliner

By now every local agency that contracts with CalPERS is aware of the launch of the new reporting software known as My|CalPERS which will replace the former software, ACES.  My|CalPERS is set to go live with local contracting agencies on September 19, 2011.  While agency payroll staff are gaining technical training from CalPERS, agency administrators should take the time now to understand the impact and changes that will come with the My|CalPERS reporting system.

The My|CalPERS system is not only intended to be a more user-friendly and versatile reporting format, but it will also provide more information to CalPERS than was previously reported on the current reporting format.  What this means for local contracting agencies is that it may now be easier for CalPERS to identify agencies who are out of compliance with the Public Employees’ Retirement Law (PERL) and its implementing regulations.

Some of reporting changes that will come with My|CalPERS include the following:

  • Reporting hours worked by PERS retirees.  Any employee of your agency who is also a PERS retired annuitant will be registered in My|CalPERS as any other new employee.  Agencies will be required to regularly report hours worked by retired annuitants.  When a retired annuitant nears 960 hours in the fiscal year, CalPERS is supposed to notify the agency.  However, most retired annuitants may only be appointed to a position of “limited duration,” and in many instances, that appointment may not exceed 12 months.  This new reporting format may allow CalPERS to more easily identify retired annuitants who illegally work beyond this limitation.
  • Identifying employment position rather than simply coverage group.  My|CalPERS will now require employers to identify the job into which the employee has been hired.  Previously, employers simply identified employees by coverage group (e.g. “local safety,” “local miscellaneous”).  The new system will provide employers with “Appointment IDs” for employees at the time of enrollment based on the employee’s position with the employer.  This might allow CalPERS to more easily identify employees who are in the wrong membership classification, such as an employee who should be in the local safety classification, rather than local miscellaneous.  It may also enable CalPERS to identify employers who are not complying with the new PERS regulations pertaining to payrate and special compensation.
  •  Reporting special compensation category and type.  When reporting special compensation, CalPERS will now require employers to identify the category of special compensation (e.g. incentive, educational, premium, or special assignment pay, or statutory items), as well as special compensation type (the type of compensation within a category such as paramedic pay, longevity pay, patrol premium, etc.).  This is not required under the current reporting system.  Sometimes employers may mistakenly believe an item of pay is special compensation and report it as such.  The new reporting system may make it easier for CalPERS to identify pay inappropriately reported as special compensation, when it in fact is not considered as such under the PERS regulations.
  •  Distinction is made between member contributions and employer contributions.  Under the current reporting system, there is not a clear distinction made between member paid contributions and employer paid contributions.  My|CalPERS will provide new fields allowing for distinguishing between pre-tax and after-tax contributions or deductions paid by the member, as well as pre-tax contribution amounts paid by the employer.  This may allow CalPERS to more easily identify Employer Paid Member Contributions (“EPMC”) that are not consistent with PERL.
  • Coming Soon: Reporting non-CalPERS member data.  Employers will not be required to report non-member data when My|CalPERS first launches on September 19th.  However, after the initial launch, PERS will begin to define requirements for collection of non-member data (e.g. part-time, seasonal, temporary, or intermittent employees, or independent contractors).  When this eventually happens, this will make it easier for CalPERS to identify employees who should by members of PERS, but whom employers have inappropriately excluded from enrollment.  It may also make it easier for CalPERS to identify independent contractors working for an agency who should be considered “common law employees,” and therefore, also members of CalPERS.

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The Ninth Circuit Decides "Religious Banners" Case On First Amendment Rights Of Public School Teachers

Posted by David Urban on September 14, 2011

The U.S. Court of Appeals for the Ninth Circuit, in Johnson v. Poway Unified School District, yesterday issued a decision that answers numerous questions bearing on the First Amendment free speech rights of high school teachers.  At the core of Johnson is the extent to which high school teachers’ expression to students in the course of instruction is protected by the First Amendment.

The facts of Johnson are as follows.  The Poway Unified School District allowed teachers to place posters and other materials on the walls of their classrooms conveying messages completely of the individual teacher’s choosing.  Examples included anti-war materials and posters of rock musicians Nirvana, Bruce Springsteen, and the Beatles.  Some of the materials appeared to pertain to religion, including: a 35 to 40-foot long string of Tibetan prayer flags with writings in Sanskrit and images of Buddha; a poster of John Lennon and the lyrics to the song “Imagine” (which at one point asks listeners to imagine a world with “no religion”); a poster of Buddhist leader the Dalai Lama; and posters of Muslim minister Malcolm X.

Bradley Johnson, a math teacher, maintained in his classroom two banners, each approximately seven feet wide and two feet tall.  One, striped in red, white and blue, contained the phrases: “In God We Trust,” “One Nation Under God,” “God Bless America,” and “God Shed His Grace On Thee.”  A second banner quoted from the Declaration of Independence by stating “All Men Are Created Equal, They Are Endowed By Their Creator,” and placed the word “Creator” in all uppercase letters.  Johnson had taught at the school for 30 years.  The first banner had been in his classroom for 25 years, and the second for 17 years.

In 2007, the District, concerned about a violation of principles of separation of church and state ordered that Johnson remove the banners.  Johnson sued alleging his First Amendment free speech rights had been violated. 

The trial court agreed with Johnson, and granted his motion for summary judgment.  It did so by applying First Amendment “forum analysis,” specifically by determining that once the District had allowed teachers free reign to express themselves through posters and other expression on their classroom walls, the District could not then pick and choose what teachers could express. 

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"Me-Too" Evidence In Harassment Case May Be Used To Impeach Alleged Perpetrator's Denial

Posted by Jeffrey C. Freedman on September 13, 2011

Sexual-Harassment.pngIn the case of Pantoja v. Anton, Lorraine Pantoja worked as a receptionist/secretary for a law firm owned by Thomas Anton.  Pantoja alleges that Anton would slap her buttocks, touch her buttocks and leg, and once asked for a shoulder massage.  He also referred to his employees as “my Mexicans.”  Eventually, Anton called Pantoja a “stupid bitch” and fired her. 

Pantoja sued Anton for race and sex discrimination and hostile work environment sexual harassment in violation of the Fair Employment and Housing Act.  At trial, Pantoja attempted to present testimony from numerous witnesses who had heard Anton yell profanities at women and refer to them as “bitches” and “idiots.”  Witnesses were also prepared to testify about Anton’s leering and touching of female employees.  However, the superior court excluded all of Pantoja’s evidence of harassing behavior unless she personally witnessed the acts that adversely affected her working environment.  At trial, Anton denied touching female employees’ buttocks or legs or referring to women as “bitches.”  He testified that he had a practice of prohibiting any type of sexual harassment during the time Pantoja worked for him.  The jury found for the defense.  Pantoja moved for a new trial on the ground that the court erred in excluding the “me too” evidence.  The superior court denied the motion, and the California Court of Appeal reversed.

Evidence of sexual harassment of other employees, unknown to the victim, cannot be offered at trial to prove a defendant’s propensity to harass.  The evidence can be offered, however, to show that an individual has discriminatory or biased intent.  Likewise, such evidence can be used to impeach a witness’ credibility. 

Here Pantoja was required to show a discriminatory intent on Anton’s part.  The excluded evidence was admissible to prove Anton’s intent or motive even if the conduct did not take place in Pantoja’s presence or was unknown to her.  It was also admissible, for example, to impeach Anton’s testimony that he had a practice of prohibiting sexual harassment in the office.

Employer Had "Reasonable Cause" For Termination Based On Job Abandonment And Did Not Discriminate Based On Employee's Previous Military Leave

Posted by Frances Rogers on September 06, 2011

It seems every employer has dealt with an employee who is chronically absent and fails to keep the employer informed of his or her absence.  Employers wonder “is this job abandonment?” “When is enough, enough?” and “What if the employee is not on a protected leave now, but was previously?  Does that look suspect if I terminate now?”

One U.S. Court of Appeal assuaged employer’s concerns when it held that an employer had “reasonable cause” to terminate an employee who violated the employer’s job abandonment policy. In so holding the Court found there was no evidence that the employer’s reason for terminating the employee was unlawfully motivated by the employee’s previous extended military leave.

In the case of To v. U.S. Bancorp, Jordan To (“To”) was an employee of U.S. Bancorp (“U.S. Bank”) when he received orders to attend training with the National Guard for 103 days.  On the day To was due to return, August 4, 2008, To called-in sick and was told to provide a doctor’s note.

For the next three work days, To called each day and spoke to his supervisor indicating he was still sick.  To later produced a doctor’s note indicating he could not return to work until August 11.  To did not report to work on August 11, but called his supervisor and said he was ill.  To’s doctor sent a note to U.S. Bank stating that To would be out until August 18.  To did not show for work on August 18, 19, and 20 and did not call any supervisor.  To claimed that his doctor was supposed to fax a note keeping him out for another week to U.S. Bank, but U.S. Bank denied ever receiving the note.

U.S. Bank had an employee manual which required employees to report every day of absence to his or her supervisor and that notifying HR or leaving messages were not sufficient.  U.S. Bank also had a job abandonment policy that stated that any employee who remained absent for two consecutive work days without reporting the absence to the supervisor, absent extenuating circumstances, was assumed to have voluntarily abandoned their job.  The manual was given to each employee and available on U.S. Bank’s intranet.

On August 20, U.S. Bank mailed a letter to To stating he was terminated for job abandonment.  To called HR a few days later and stated his doctor was supposed to send a note to them for the week of August 15th. HR asked To to send them the note and it would “reevaluate his situation.”  To failed to do so.  To filed an action against U.S. Bank for, among other things, termination in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The trial court granted summary judgment in favor of U.S. Bank.  To appealed and the Eighth Circuit Court of Appeal affirmed.

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