By Mark Anderson and Katrina Thornton
In Smith v. Cook County, an Illinois court dismissed an African American probation officer’s lawsuit claiming the County denied his request for an adjusted schedule because of his race and active participation in his labor union. The court dismissed Officer Jason Smith’s lawsuit, finding that neither Smith’s race nor his union activity was the basis for the employer’s denial of his request to adjust his schedule.
By Mark Anderson and Katrina Thornton
In Bonilla v. City of Philadelphia, a Philadelphia court denied the City of Philadelphia’s request to throw out a Christian tow truck driver’s lawsuit claiming that he had been discriminated against because of his faith. The court held the Department may have created an offensive work environment based on the driver’s religious beliefs.
By Mark Anderson and Beth Touschner
In Anselmo v. City of Philadelphia, a city police officer brought a lawsuit against her employer alleging she was retaliated against by coworkers after she reported gender discrimination. Specifically, Anselmo claimed, after she reported discrimination she was ostracized, lost friends at work, was not invited to social gatherings, coworkers would not sit near her, she was excluded when lunch was ordered, and one of her coworkers called her a rat. The court rejected her retaliation claim because Anselmo failed to show that the employer knew of the harassment and failed to stop it. Indeed, the court noted, Anselmo admitted she had not reported her allegations to anyone and had simply withdrawn.
By Jim Cline and Mark Anderson
In Gregg v. City of Houston, a Texas police officer prevailed on a motion to dismiss his claims for harassment and retaliation after he was sexually harassed by a female coworker for several years, and then ostracized by coworkers after he reported the harassment. The court found that Officer Michael Gregg met each of the required elements to proceed to trial on his Title VII hostile work environment claim and his retaliation claim.
[Read more…]By Jim Cline and Troy Thornton
In Village of Skokie, 2020 BNA LA 1311, Arbitrator Sinclair Kossoff found that the employer did not violate the CBA when it denied an Officer’s bereavement pay request. The Union argued that vacation should be converted to bereavement leave when applicable. But the Arbitrator concluded that the Union position was not supported by CBA language.
[Read more…]By Jim Cline and Troy Thornton
In Tualatin Fire and Rescue District, 2020 BNA 1300, an Oregon Fire District implemented a 42-hour work schedule following failed negotiations with the International Association of Firefighters local representing a group of Oregon firefighters. Because the parties had specific CBA language requiring Union agreement for any schedule changes, Arbitrator Kenneth James Latsch ruled that Management violated the agreement when it implemented the new schedule without doing first gaining Union approval and ordered the payment of overtime as an appropriate remedy.
Beginning with the contract covering 2012 through 2015, the parties’ CBA established two work schedules: a 40-hour workweek, and a shift schedule that consisted of 24 hours on-duty followed by 48 hours off-duty (as well as an off-duty Kelly day every ninth shift). During the negotiation of that CBA, TVFR accepted the Union’s proposal to limit schedule changes without first gaining the approval of the Union. In 2019, the parties agreed to a scheduling MOU due to now requirements posed by a change to Oregon law. Following the implementation of the MOU, Management established a new 42-hour work schedule for certain employees.
The Union argued that the implementation of the new 42-hour work schedule, without first gaining the approval of the Union, violated the CBA between the parties. They relied upon the language negotiated for the 2012-2015 contract, which states that changes to the regular schedules would require “agreement between Labor and Management.” Additionally, the CBA contains language stating that employees working 40-hour schedules are owed overtime after working more than 40 hours in a seven-day stretch.
Management attempted to rely on the plain language of both the CBA and MOU, claiming that they were not prohibited from implementing a 42-hour schedule, and met all of the CBA requirements for doing so. The employer also argued that the Union simply did not meet its burden of proving that their actions violated the CBA, which is typically required of the side claiming that there was a violation.
Arbitrator Latsch examined both the CBA and MOU to determine the “plain meaning” of the language contained in the documents. He found that the CBA language negotiated during the 2012-2015 contract cycle, specifically the language stating that there must be an “agreement between Labor and Management,” established stronger protections for the Union than the standard rule of law requiring bargaining to impasse over such issues.
In most cases, contracts deal with the parties’ mutual obligation to negotiate concerning the mandatory subjects of collective bargaining, wages, hours, and conditions of employment. Article 6.2.2 provides much stronger language, however. Article 6.2.2 specifies that pay and benefit accrual may be converted in an alternative workweek only after “agreement between Labor and Management”. In other words, the parties have recognized that there must be an agreement before changes could be made. This is more than the traditional requirement of bargaining to the point of impasse on a particular issue, and it narrows the Employer’s scope of action on any particular issue concerning alternative shift schedules.
Because that language is clear, Arbitrator Latsch found that Management did in fact violate the CBA. In his ruling, he determined that Management had to discontinue its use of a 42-hour schedule and reinstate the schedule in place prior to the change. Additionally, Arbitrator Latsch ruled that employees must be made whole for any hours worked under the 42-hour schedule, which included overtime for any hours worked over 40 in a given week.
It is noteworthy that the union also had a pending ULP complaint. Normally a unliteral change would be the subject of a ULP and absent clear “waiver” language, they would be successful on such a complaint on these facts. Presenting the issue here to an arbitrator did provide the union one additional remedy that may or may not have been extended from the ULP process — it was able to get overtime for hours worked under the unilaterally implemented schedule that exceeded the default under the CBA. This reflects the principle and practice of arbitrators to always find some type of meaningful remedy for any breach of contract.
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By Mark Anderson and Beth Touschner
In Brady v. Tamburini, a Rhode Island police detective prevailed in his First Amendment free speech lawsuit after being disciplined for speaking with the news media. The court found that the police department’s policy prohibiting officers from speaking to the media ran afoul of First Amendment free speech protections. It also found that several other department policies, for which Detective James Brady was disciplined, were improper as applied to him.
By: Loyd Willaford and Clive Pontusson
In Cobsy v. City of Indianapolis, a federal court dismissed the lawsuit of a police officer who claimed that his repeated discipline was motivated by racial bias in the Indianapolis Police Department. Because Officer Cosby did not present evidence that his multiple suspensions were related to his race, he could not state a claim for racial discrimination.
By: Loyd Willaford and Clive Pontusson
In Jones v. City of Birmingham, a federal court ruled that an Alabama Police Officer had alleged sufficient facts to show he may have been transferred as retaliation for filing a complaint with the Equal Employment Opportunity Commission. The Court dismissed Edwin Jones’ claim for racial discrimination, but it did find that Jones had shown a potential retaliation for his filing a complaint with the EEOC. As a result, the Court determined that his case should be heard by a jury. [Read more…]
By: Loyd Willaford and Clive Pontusson
In Roy v. Correct Care Solutions, the U.S. Court of Appeals overturned the decision of a lower court and determined that Tara Roy had presented sufficient evidence that she faced gender discrimination and hostility to bring her case for employment discrimination before a jury. Roy’s case involved many defendants, including the private company that employed her (Correct Care), the Maine Department of Corrections, and the individual supervisors who allegedly retaliated against her for complaining about sexual harassment.
Tara Roy was employed by a private company that provided medical services in Maine correctional facilities. In 2012, a Corrections Officer made sexual jokes and degrading comments about women to Roy. He also bent her over a chair and spanked her. Roy complained about the behavior, and the Officer was reassigned. A year later, a different Corrections Officer made other comments to Roy, like “a woman’s job is to be at home.” Roy reported these comments as well, but neither the company nor the department of Corrections took any action. Later, a third Corrections Officer responded to a work-related request from Roy by saying she should “stop being a bitch.” Roy and the third Corrections Officer had a romantic relationship that had ended, but he continued sending her explicit photos of himself. Roy was also repeatedly pressured by several other male Officers to give them confidential information about inmates that she was not allowed to give. Roy complained about these incidents to her superiors, but the investigations that occurred did not result in any discipline or corrective action. Roy also complained that at one point, despite her requests, Corrections Officers had not guarded prisoners in the infirmary. Roy claimed in an incident report that the Officers had been absent for 15 minutes. Video footage indicated that officers were only absent for two minutes. On the basis of this inconsistency, Roy’s security clearance was revoked and she was fired.
Roy argued that this course of events violated her rights in several ways. First, she argued that the repeated abuse she suffered at the hands of male Corrections Officers made her work environment hostile. She argued that this was specifically related to the fact that she was a woman. She further argued that her employer and the jail were both liable because they knew what was going on but did nothing to stop it. Second, Roy argued that her termination was retaliation for her efforts to bring this discrimination and abuse to light. She argued that the employer’s given reason—her misleading statement about exactly how long officers were not supervising the infirmary—was only a pretext to fire her. The real reason, she argued, was that she alleged sexual harassment by other members of the jail’s staff.
Correct Care Solutions argued that that Roy had not proven any of the critical elements of her lawsuit. It argued that, to the extent anyone harassed Roy, it was not obviously because of her identity as a woman. Correct Care also argued that even assuming Roy had been harassed, these were isolated incidents, and not the pattern of sexual harassment that is required to establish a hostile work environment. Second, Correct Care argued that Roy had not proven that her alleged dishonesty was not a valid independent reason for firing her. Finally, Correct Care argued that since the hostile work environment and the “retaliation” also involved employees of the jail, it was impossible for them to correct the behavior that Roy was describing.
The federal court did not determine that Roy had proven her case—but it did issue a forceful ruling that she had alleged enough facts to bring her case before a jury. The Court found that:
A jury could find on one of several theories that officers put Roy at risk, treated her rudely, ignored her, demeaned her, and filed reports complaining about her not only because of her whistleblowing but also because of her sex. […] Responding disrespectfully or dismissively to women’s requests, complaining about women’s performance, and ignoring or ostracizing women are paradigmatic ways to communicate to women that they are less worthy than or less welcome than men in a workplace.
The Court also explained that the facts on the record showed that retaliation may have been the reason she was fired. As the Court explained,
If CCS could have transferred Roy to one of its other facilities in Maine, as Roy says, then a jury could find that retaliatory animus was a but-for cause of CCS’s decision to fire her rather than transfer her. Significantly, CCS has not produced evidence that a transfer was impossible.
Finally, the court explained that the somewhat complex relationship between the jail and Correct Care Solutions did not mean that Roy could not bring a lawsuit against both of them:
A third party’s retaliatory or discriminatory animus can cause an employer’s adverse action where, as a jury might find here, the employer knew that animus motivated the third-party’s actions or demands and simply accepted those actions or demands.
For these reasons, the Federal Court of Appeals determined that Roy’s case should go before a jury to weigh the evidence of discrimination, hostility, and retaliation that she had presented.
This case is an example of the types of conduct which can constitute a hostile work environment based on sex. The standard that courts apply is that the bad conduct must be “severe or pervasive enough to alter the conditions of employment.” The bad conduct must also be either done or tolerated by management. In this case the repeated sexualized jokes and comments by Roy’s co-workers which management knew about and did not correct were enough to allow a jury to decide that they altered the working conditions to create hostile work environment.
The case also stands for the propositions that employers cannot hide behind third party contractors to avoid liability. If the employer knew or should have known about the third party’s bad conduct and did not correct it, the employer may be found liable if they had the means to correct the behavior and failed to do so.
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