2002-13

UNITED STATES SUPREME COURT

A. High Court Strikes Down NLRB Retaliatory Litigation Standard As Violation Of Constitutional Right To Petition For Redress Of Grievances

In BE&K Construction v. NLRB, 536 U.S. (2002), the Supreme Court held that the National Labor Relations Board may not impose liability on an employer for filing a losing retaliatory lawsuit, where the employer can show that the suit was not objectively baseless. BE&K Construction Company sued several unions in federal court, alleging violations of the Labor-Management Relations Act and the Sherman Antitrust Act. The suit alleged that the unions had attempted to delay the modernization of a steel mill by engaging in prohibited secondary boycotts, by lobbying for enactment and enforcement of emission standards in which it had no real interest, encouraging strikes among employees of subcontractors, filing state court actions alleging violations of state health and safety codes, and filing grievance proceedings against BE&K's joint venture partner based on inapplicable collective bargaining agreements. All of BE&K's claims were eventually disposed of through summary judgment rulings in favor of the unions, dismissal by the court, or voluntary dismissal by BE&K. The District Court also imposed Rule 11 sanctions on BE&K for filing an amended complaint which re-alleged claims already dismissed. The Ninth Circuit later reversed the trial court on imposition of Rule 11 sanctions, but affirmed the dismissal of BE&K's anti-trust claim.

Two of the unions which had been sued then lodged NLRB complaints against BE&K, alleging that the company's litigation against the unions violated Section 8(a)(1) of the National Labor Relations Act, which prohibits employers from interfering with concerted activities protected under the Act. The Board found that: (1) BE&K's suit had been unmeritorious as evidenced by the dismissal, withdrawal or grant of summary judgment as to all claims; and (2) there was evidence of an unlawful retaliatory motive for the litigation, including the company's admission that it had filed the suit "to stop certain union conduct which it believed to be unprotected," the fact that it had sued some unions that had not been parties to the state court lawsuits at issue, the District Court's finding of an "utter absence of merit" in the company's claims and the fact that the company had re-alleged claims which had already been dismissed. Based on these findings, the Board held under Bill Johnson's Restaurants Inc. v. NLRB, 461 U.S. 731 (1983) and Board precedent that the company's federal lawsuit had been a violation of the Section 8(a)(1). The Board ordered BE&K to cease and desist from prosecuting such suits and to pay all of the union's attorneys fees and expenses incurred in defending the lawsuits. The Court of Appeals for the Sixth Circuit granted the Board's petition for enforcement of its order.

In an opinion authored by Justice O'Connor, the Supreme Court reversed. The Court distinguished its earlier opinion in Bill Johnson's, which had involved ongoing litigation and whether the Board could enjoin baseless lawsuits brought with a retaliatory motive. Although the Bill Johnson's Court also discussed completed lawsuits, that discussion was dicta which was not binding on the Court in this case. The Court then considered the proper standard for defining "sham" litigation which it had previously set out - in the context of anti-trust litigation - in Professional Real Estate Investors Inc. v. Columbia Pictures Industries Inc., 508 U.S. 49 (1993). Under this standard, in order to be deemed sham litigation falling outside the protections of the of First Amendment, a lawsuit: (1) must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits; and (2) the litigant must be subjectively motivated by an unlawful purpose.

Applying the first prong of the definition, the Court held that the fact that a BE&K's lawsuit was unsuccessful does not establish that it was objectively baseless, and that unsuccessful but reasonably based suits are protected under the First Amendment. As to the unlawful-motive prong of the sham litigation test, the Court held that the Board's definition of a retaliatory lawsuit is overly broad in that it covers a "substantial amount of genuine petitioning." The Board defines any lawsuit "brought with a motive to interfere with the exercise of protected rights" as retaliatory. This definition would cover a lawsuit brought by an employer to test whether or not union conduct is indeed protected under the NLRA. Thus, if an employer has "a subjectively genuine" belief that union conduct is unprotected under the NLRA, and that belief is objectively reasonable, any after-the-fact penalty imposed on the employer for filing the lawsuit violates the employer's constitutional right to petition.

Moreover, a retaliatory motivation for bringing litigation cannot be inferred on the basis of general "anti-union animus" on the part of the employer because, regardless of such animus, the employer's dispute with the union may nonetheless be genuine. The Court held that "as long as a plaintiff's purpose is to stop conduct he reasonably believes is illegal, petitioning is genuine both objectively and subjectively." (Emphasis in original). Finally, even if the Board determines that an employer's motivation in bringing a lawsuit was in fact retaliatory, as long as there was a reasonable basis for the suit, the Board may not penalize the employer.

Nevertheless, the Court suggested, in dicta, that a narrower Board standard barring suits "that would not have been filed but for a motive to impose the costs of the litigation process" might meet constitutional muster. Justice Breyer, joined by Justices Souter and Ginsberg, filed a lengthy concurring opinion. Although the concurring justices agreed that, in this case, the Board improperly made a per se determination of retaliatory motive based solely on the facts that the employer's suit was unsuccessful and the employer did not like the union, they disagreed with the majority's adoption of the anti-trust definition of unprotected sham litigation as applied to labor disputes, pointing out that anti-trust laws have stronger built-in deterrence to anti-competitive lawsuits (i.e., the risk of treble damages imposed on the losing party) that do not exist in the labor law context. Justices Scalia and Thomas filed a second concurring opinion to refute the arguments set forth in the Breyer concurrence, basically arguing that litigation sanctions are the domain of the courts, not executive agencies like the NLRB.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

A. Neutral Policy That Results In Rejection Of Rehabilitated Drug Addict For Re-Employment Violates ADA.

In Hernandez v. Hughes Missile Systems, June 12, 2002 Daily Journal DAR ___ (Ninth Circuit June 11, 2002),⁽¹⁾ an employer declined to re-hire a former employee who three years earlier had been terminated after failing a drug test. The plaintiff, Hernandez, had attached to his resume submission a letter from a counselor who stated that he works with recovering alcoholics and certified that Hernandez "attends AA regularly, maintains his sobriety, and has a strong commitment to his recovery." Because Hernandez indicated he had worked for Hughes before, his application was automatically forwarded to the Labor Relations Department and his employee file was pulled. Although the entire file was pulled, the labor relations employee who made the decision to reject Hernandez' application testified in her declaration that she looked only at the "employee separation sheet," which indicated that Hernandez had "quit in-lieu-of discharge." She further testified that the company had an "unwritten policy" of not rehiring former employees whose employment ended due to termination or resignation in-lieu-of termination. In the court below, Hughes had successfully argued that: (1) it could not have refused to rehire Hernandez because of a perceived disability (drug and alcohol addiction) when the employee who made the decision was not even aware of his former disability; and (2) even if the decisionmaker had known about Hernandez' prior problems with drugs and alcohol, Hughes had a legitimate non-discriminatory reason for rejecting Hernandez in that its policy is to reject all applicants who were previously terminated, or resigned in lieu of termination, for violation of company policies. Agreeing, the trial court granted Hughes' motion for summary judgment.

Reversing, the Ninth Circuit rejected both of the above arguments. First, it held that the very fact that a record of Hernandez' failed drug test was in his employee file and the counselor's letter apparently alluding to a former drug or alcohol problem was attached to his application, raises an inference that the decisionmaker knew about Hernandez' prior addiction problems and raises a triable issue of fact as to why his application was rejected.

Second, the Court held that Hughes' policy of rejecting former employees who had been terminated for misconduct "violates the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction." While acknowledging that the labor relations employee who rejected Hernandez' application may have known nothing about why Hernandez had been terminated, the Court held that "her lack of knowledge would have been due solely to Hughes' unlawful policy which shields its employees from the knowledge that an employment decision may be illegal." The Court continued:

Maintaining a blanket policy against rehire of all former employees who violated company policy not only discriminates on account of past disability against persons with a record of addiction who have been successfully rehabilitated, but may well result, as Hughes contends it did here, in the staff member who makes the employment decision remaining unaware of the "disability" and thus of the fact that she is committing an unlawful act. Having wilfully induced ignorance on the part of its employees who make hiring decisions, an employer may not avoid responsibility for its violation of the ADA by seeking to rely on that lack of knowledge. (Emphasis in original.)

Finally, the Court rejected Hughes' argument that there was no triable issue of fact as to whether Hernandez was qualified for the position he applied for. The position that Hernandez applied for in 1994 was lower than the position he had resigned from in 1991. However, in 1999, after Hernandez had filed his lawsuit, Hughes offered to place him in the position applied for if he could pass the necessary examination. Although he was given time to study and prepare for the exam, Hernandez completed only four out of eight sections and failed the four sections completed. Hughes argued that if Hernandez could not pass the test in 1999, he clearly would not have been able to pass in 1994. The Court rejected this argument, stating: "[S]imply because he failed the examination in 1999 does not mean he would have failed in 1994, a date considerably closer to the time during which he satisfactorily performed the job."

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B. Ninth Circuit Affirms Validity Of Circuit City Arbitration Agreement As Applied To FEHA Cases.

In Circuit City Stores v. Najd, June 25, 2002 Daily Journal DAR 7091 (9^th Cir. June 24, 2002)⁽²⁾, the Ninth Circuit once again affirmed the validity of Circuit City's "Dispute Resolution Agreement" ("DRA") where the employee is offered the opportunity to opt out of the agreement. (Cf. Circuit City Stores v. Ahmed, 283 F.3d 1298 (9^th Cir. 2002). Najd filed suit against Circuit City in state court alleging national origin discrimination in violation of FEHA. Circuit City responded by filing a petition to compel arbitration in federal court under the Federal Arbitration Act. The district court granted the petition and Najd appealed, attacking the validity of the DRA on grounds that: (1) the FAA does not apply to employment contracts; (2) FEHA claims are non-arbitrable under Duffield v. Robertson Stephens and Company, 144 F.3d 1182 (Ninth Circuit 1998); (3) the DRA is unconscionable under Armendariz; (4) the DRA is not a valid contract for lack of consideration; and (5) Najd did not assent to the DRA.

Najd conceded that his first argument regarding the scope of the FAA was foreclosed by the Supreme Court's subsequent decision in Circuit City Stores v. Adams. As to Najd's second argument, under Duffield, the Court noted that Duffield applies to FEHA claims only when they are brought in conjunction with Title VII claims. Moreover, the Court noted that "Duffield's continuing validity is questionable," citing mixed authority among Ninth Circuit courts as to whether Duffield was overruled by Adams, and noting that every other Circuit in the nation has taken a position in opposition to that in Duffield. As to Najd's claim of unconscionability under Armendariz, the Court noted its recent rejection of this argument, as applied to the same agreement, in Circuit City Stores v. Ahmed, 283 F.3d 1198, 1200 (9^th Cir. 2002).

Najd next argued that the DRA was not supported by adequate consideration because Circuit City was not required to submit any of its claims against employees to arbitration. However, the Court held that Circuit City's promise to submit to arbitration for a certain specified class of claims constitutes sufficient consideration for the employee's agreement. Finally, the Court rejected Najd's argument that he did not assent to the DRA. The Court noted that Najd had signed an acknowledgment of receipt of the DRA which clearly set out the significance of his failure to affirmatively opt out of the agreement. The Court noted that Circuit City had also made clear that opting out of the agreement would have no effect on the employment relationship, and had given Najd 30 days to review the agreement and consider whether or not to opt out. Under these circumstances, the Court held that "inaction is indistinguishable from overt acceptance."

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C. Medical Condition Preventing Continuous Keyboarding And Handwriting Held Not A "Substantial Limitation" Under the ADA.

The Ninth Circuit has issued an order supplementing its earlier opinion in Thornton v. McClatchy Newspapers, Inc., 117 DLR A-5⁽³⁾, in light of the U.S. Supreme Court's recent decision in Toyota Motor Manufacturing v. Williams, 122 Sup. Ct. 681 (2002). Thornton was a reporter for the Sacramento Bee who had been diagnosed with carpal tunnel syndrome and alleged that her condition prevented her from using a keyboard for more than 30 minutes at a time or more than one hour intermittently throughout the day, or from handwriting for more than five minutes at a time or one hour intermittently throughout the day. In its earlier opinion, the Ninth Circuit held that these limitations did not amount to a substantial limitation as to a major life activity under the ADA, because Thornton's "inability to type and write for extended periods of time is not sufficient to outweigh the large number of manual tasks that she can perform." The Court subsequently agreed to stay the mandate of this decision pending resolution of the Williams case in the Supreme Court. Williams involved a factory worker whose job required the continuous performance of certain repetitive tasks with arms and hands extended over her head. The Supreme Court held that the plaintiff's inability to perform such tasks under these conditions did not amount to a substantial limitation of a major life activity under the ADA, because "to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance in most people's daily lives." (Emphasis added.)

Reviewing its earlier decision under this newly clarified test, the Ninth Circuit (Berzon dissenting) affirmed its prior holding that Thornton's keyboarding and handwriting restrictions did not constitute a substantial limitation of major life activities. The majority stated: "While most lawyers or law office personnel would undoubtedly consider continuous keyboarding and handwriting to be activities of central importance to their lives, we cannot say that is so for 'most peoples daily lives,' as Williams requires."

Judge Berzon dissented, as she had in the panel's earlier decision. Williams, she argued, held that an inability to perform occupation-specific manual tasks did not establish a substantial limitation of the major life activity of working. In contrast, the ability to use a computer keyboard for more than 30 minutes at a time or 60 minutes in a day is not such an occupation-specific task. Berzon continued:

For many students, for most of the wide variety of employees who work at jobs that require computer use, and for many individuals who use computers for such daily tasks as making travel arrangements, emailing to friends, and relatives, paying bills, filing tax returns and other forms, and shopping, the inability to use a computer - or, alternatively, to handwrite - for more than 60 minutes total in a day could fundamentally alter the way they live their lives, absent accommodation. The impact on a reporter such as Jacalyn Thornton could certainly be substantial. One can infer that it is likely - if the limitations claimed are accurate - that she would have to give up not only her job but her long term profession, absent accommodation, and would have a hard time transferring her writing skills to other areas of endeavor.

CALIFORNIA SUPREME COURT

A. High Court Holds That FEHA Does Not Prohibit Benefits Discrimination Based On Age.

In Esberg v. Union Oil Company of California, June 25, 2002 Daily Journal DAR 7073 (June 24, 2002), the California Supreme Court held that FEHA's prohibition against age discrimination extends only to hiring, discharge, suspension or demotion, and does not extend to employee benefits such as educational assistance. The case involved a 56-year old telecommunication specialist, Dan Esberg, who had obtained an undergraduate degree through Unocal's educational assistance program. He wished to continue his education at the company's expense and obtain an MBA degree. When Esberg discussed his intentions with his supervisor, his supervisor's response was: "You're too old to invest in." Esberg was subsequently formally denied funding for his proposed graduate education, while educational aid to pursue MBA degrees was granted to three younger employees. Esberg filed a complaint with the DFEH and, after receiving a right-to-sue letter, sued the company for breach of contract, age discrimination in violation of FEHA, and "denial of benefits in violation of fundamental public policy." After trial on the merits, a jury returned a special verdict finding that the company had wrongfully denied Esberg educational assistance because of his age, and that this was a breach of an agreement the company had with Esberg not to discriminate against him in this manner. The jury awarded Esberg $51,000 in economic damages and $35,000 in non-economic damages.

Unocal moved for judgment notwithstanding the verdict, arguing that its denial of educational assistance to Esberg neither violated FEHA nor the fundamental public policy against age discrimination embodied in the statute. Although the trial court let the award of economic damages stand, on the basis of the jury's breach-of-contract determination, it agreed with Unocal as to the FEHA and public policy claims, and set aside the award of non-economic damages. The Court of Appeal affirmed.

The Supreme Court unanimously affirmed the courts below. Writing for the Court, Justice Kennard noted that the Legislature created in FEHA two separate provisions setting out different forms of workplace discrimination and identifying different classes protected from those forms of discrimination. While Section 12940 prohibits an employer from discriminating in the "terms, conditions or privileges of employment" on the basis of race, religion, national origin, disability, marital status, sex or sexual orientation, it notably omits discrimination on the basis of age. On the other hand, Section 12941, which specifically addresses age discrimination in employment, makes it an unlawful employment practice for an employer to "refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote" any individual on the basis of age. However, Section 12941 does not include the broader prohibitions of any discrimination "in the terms, conditions, or privileges of employment." Because this distinction is unambiguous in the plain language of the statute, the Court declined to consider any extrinsic evidence such as the purpose of the statute, its legislative history, or public policy goals. In particular, the Court stated that it would "attach no significance" to the fact that in 1998 the Legislature attempted to amend Section 12941 to expressly declare it unlawful to discriminate on the basis of age in the "terms, conditions, or privileges" of employment absent business necessity, noting that the Governor vetoed that bill.

Nevertheless, in a clear invitation to the Legislature to once again attempt to "fix" this problem (an invitation that will almost certainly be accepted) the Court stated:

We do not review the wisdom of the Legislature's decision not to include employees over the age of 40 as a protected class in Section 12940, or the wisdom of its decision not to include allocation of employee benefits among the employer decisions to which the age discrimination prohibition of Section 12941 applies. Our role in construing a statute is simply to ascertain and to declare what is in terms or in substance contained in the statute, not to insert what has been omitted.

CALIFORNIA COURTS OF APPEAL

A. Failure To Seek Judicial Review Of Civil Service Commission Determination Bars Subsequent FEHA Claim.

In Risam v. County of Los Angeles, June 19, 2002 Daily Journal DAR 6791 (Cal.App., 2d Dist., Div. 4 June 18, 2002)⁽⁴⁾, the Court held that the plaintiff, Risam, was barred from bringing a FEHA claim, where she had failed to seek a writ of mandamus after the Civil Service Commission determined that she had "failed to present evidence sufficient to prove any violation of the ADA or FEHA" by her employer. Risam had contended in proceedings before the Commission that she: (1) had been improperly demoted under civil service rules;and (2) had been denied reasonable accommodation arising from a disability (multiple sclerosis) in violation of FEHA and the ADA. In support of her improper demotion claim, Risam presented evidence that her supervisor had given her unfair performance evaluations in retaliation for previous complaints that she had made about the supervisor. The Commission agreed that Risam had been improperly demoted under civil service rules, noting (among other things) that clashes she had with her supervisor "show signs of some retaliation on his part," and ordered her reinstatement to her previous, higher position. However, as to her disability claim, the Commission held that Risam had "failed to present evidence sufficient to prove any violation of the ADA or FEHA by the Department." (Emphasis added.) Risam made no attempt to utilize Commission procedures to object to this finding. Nor did she file a petition for writ of administrative mandamus to overturn this portion of the Commission's ruling.

Risam filed a claim with the DFEH and, upon receiving a right-to-sue letter, filed a complaint against the County for "demotion in retaliation for opposing discriminatory practices in violation of FEHA." The County filed a motion for summary judgment on the basis of Risam's failure to judicially challenge the Commission's findings, and the trial court granted the motion. Affirming, the Court of Appeal first noted that the requirement of exhaustion of judicial remedies is distinct from the requirement of exhaustion of administrative remedies. "Exhaustion of administrative remedies is a jurisdictional prerequisite to resort to the courts. Exhaustion of judicial remedies, on the other hand, is necessary to avoid giving binding effect to the administrative agency's decision, because that decision has achieved finality due to the aggrieved party's failure to pursue the exclusive judicial remedy for reviewing administrative actions." (Emphasis in original. Internal citations and quotations omitted.) Essentially this is an application of the doctrine of res judicata in the administrative arena. Accordingly, the Court applied the traditional factors in determining whether collateral estoppel applies: (1) whether the issue was necessarily decided in the previous proceeding; (2) whether the previous proceeding resulted in a final judgment on the merits; and (3) whether the party against whom estoppel is asserted is the same party or is in privity with the party at the prior proceeding. Risam asserted that the Commission's ruling that she had not established a FEHA violation referred only to her ADA claim regarding failure to accommodate. The Commission had not considered the issue of whether or not her demotion was in retaliation for complaining of discriminatory practices. Further, she argued that the Commission's finding that her supervisor's actions in giving her unfair performance reviews "show signs of some retaliation on his part" actually support her subsequent FEHA claim. The Court rejected these arguments. First, the Commission's finding of "signs of some retaliation" on the part of the supervisor did not establish that such retaliation was because of previous complaints she had made regarding conduct prohibited under FEHA. Second, in concluding that Risam had "failed to present evidence sufficient to prove any violation of the ADA or FEHA by the Department," (emphasis added) the Commission made an implicit factual finding that evidence of a prohibited retaliatory motive was not presented.

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B. Forcing Employee To Choose Between Job And Marriage Held Permissible Where Serious Conflict Of Interest Exists.

In Ortiz v. Los Angeles Police Relief Association, June 17, 2002 DLR A-2 (Cal.App., 2^nd Dist., Div. 1, May 31, 2002)⁽⁵⁾, the Court held that an employee's right to privacy under the California Constitution was not violated when she was terminated for refusing to give up plans to marry a convicted felon, when the employee had access to confidential information regarding police officers. Cipriana Ortiz, the plaintiff, was employed by the Los Angeles Police Relief Association ("LAPRA"), an organization which administered employee benefits for current and former LAPD officers, including approximately 200 undercover officers. As an administrator of retirement and promotion benefits, she had daily access to confidential files which included officer's home addresses, telephone numbers, and medical histories, as well as and information about their spouses and children. Because of their access to such information, LAPRA employees were advised to "avoid even the appearance of impropriety," such as drinking and driving, attending parties where illegal drugs were being used, or fraternizing with gang members or known criminals. In February of 1998, Ortiz became romantically involved with Michael Estrada, a convicted felon who was serving a 15 year sentence for burglary. In early 1999, Ortiz and Estrada became engaged and decided that they would marry sometime in June 2000. Ortiz approached Ramona Voge, the executive director of LAPRA, regarding taking a day off for the wedding. During this conversation, she mentioned for the first time to anyone at LAPRA that her fiancé was in prison. Voge immediately expressed a concern that Ortiz' relationship with the inmate could jeopardize the personal safety of police officers and their families, and that this would be the case even if Ortiz did not intend to disclose any confidential information, because the situation would create a risk that she might be coerced into disclosing information.

In February 2000, the LAPRA board of directors decided that Ortiz would have to resign if she intended to maintain her relationship with Estrada. Ortiz refused to resign or to break off her relationship with Estrada and, in March 2000, she was terminated. In terminating Ortiz, Voge reiterated that "the reason for the board's decision was based on the unacceptable - and potentially deadly - conflict of interest" between Ortiz' job duties and her intimate relationship with a convicted felon. Ortiz subsequently sued LAPRA under a number of theories, including violation of her right of privacy under the California Constitution, discrimination on the basis of marital status in violation of FEHA, and wrongful termination in violation of public policy. The trial court granted summary judgment in favor of LAPRA, and Ortiz appealed.

The appellate court first reviewed the elements of a privacy claim under the California constitution, as set out in Hill v. National Collegiate Athletic Association, 7 Cal.4th 1, 15-20 (1994). In order to establish a constitutional privacy violation, a plaintiff must prove: (1) there must be a legally protected privacy interest at stake; (2) plaintiff had a reasonable expectation of privacy under the circumstances; and (3) the conduct of the defendant must constitute a serious invasion of privacy. The Court held that Ortiz had established each of these prima facie elements. First, the Court reviewed a long line of both federal and California cases establishing a fundamental right to marry. Second, Ortiz had a reasonable expectation of privacy regarding her marriage in that she had told no one at LAPRA, except Voge, about her wedding plans and had disclosed them to Voge solely for the purpose of getting time off for the wedding. Third, the seriousness of the alleged invasion of privacy could not be questioned - "LAPRA vetoed her choice of spouses. If she wanted to keep her job of 11 years, she had to give up her plans to marry Estrada and bring an abrupt halt to their two-year relationship."

Nevertheless, under Hill, "a defendant may prevail in a state constitutional privacy case by . . . pleading and proving, as an affirmative defense, that the invasion privacy is justified because it substantially [serves] one or more countervailing interests. The plaintiff in turn may rebut a defendant's assertion of countervailing interests by showing there are feasible and effective alternatives to defendant's conduct which have a lesser impact on privacy interests." Again, the Court turned to federal constitutional decisions for guidance as to permissible incursions on the fundamental right to marry. These included a number of cases upholding employers' anti-nepotism policies. For instance in Parsons v. County of Del Norte, 728 F.2d 1234 (9^th Cir. 1984), the Court upheld an anti-nepotism policy, holding that "only when a government regulation directly and substantially interferes with the fundamental incidence of marriage is . . . strict scrutiny applicable. . . . Where fundamental rights are not substantially burdened, the regulation will be upheld unless there is no rationale basis for its enactment. . . . The County asserts justification for the rule in that it avoids conflicts of interest and favoritism in employee hiring, supervision, and allocation of duties. The structure of the rule bears a rationale relationship to this end and therefore passes constitutional muster." Based on this and other authorities, the Ortiz Court concluded that LAPRA's conflict of interest rule, which is rationally related to its legitimate interest in preventing the disclosure of confidential officer information to criminals, likewise passes constitutional muster.

In an unpublished portion of the decision, the Court went on to affirm the trial court's summary judgment as to marital status discrimination under FEHA, finding that LAPRA clearly did not have a generalized objection to Ortiz getting married. It only objected to her marrying a particular type of person, i.e., an incarcerated, convicted felon.

A. Eleventh Circuit Affirms That Fair Labor Standards Act Cases Brought In State Court Are Removable.

In Breuer v. Jim's Concrete of Brevard, 115 DLR E-5 (11^th Cir. June 5, 2002), the plaintiff brought suit in a Florida state court for unpaid wages under the FLSA. Defendant removed to federal court and the plaintiff brought a motion for remand which the district court denied. Plaintiff appealed, arguing that the FLSA's jurisdictional provision (28 USC ? 216(b)) which states that an action to recover under the statute "may be maintained" in any federal or state court of competent jurisdiction means that once an action is started in state court it must be "maintained" there and cannot be removed. In rejecting this theory, the Eleventh Circuit adopted the reasoning of the First Circuit in Cosme Nieves v. Deshler, 786 F.2d 445 (1986), wherein the Court held that Section 216(b) of the FLSA did not amount to the "explicit statutory directive from Congress" necessary to create an exception to the removal statute. The Breuer Court conceded that the Eighth Circuit had come to a different conclusion in Johnson v. Butler Brother, 162 F.2d 87(1947), but noted that one year after that decision Congress amended the general removal statute (28 USC ? 1441(a)) to require that exceptions to the removability of federal claims must be "expressly provided by Act of Congress."

The Court went on to note that, while the great majority of district courts which have considered this issue have permitted removal, there is still a considerable split in authority, citing in a footnote to 12 district court decisions denying removal of FLSA actions. The Court opined that "[b]ecause of the longstanding difference among the district courts and the apparent conflict between the Eighth Circuit in Johnson v. Butler Brothers and the First Circuit in Cosme Nieves, and now with this Circuit, it would appear to be important for either Congress or the United States Supreme Court to resolve this issue and bring uniformity to the federal courts in this regard. Litigants should not be treated with such disparity in our federal system."

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B. Mere "Pro Forma" Consideration Of Applicant For Promotion Raises Inference Of Pretext.

In Danville v. Regional Lab Corp., 116 DLR A-1 (Tenth Circuit June 12, 2002), the Tenth Circuit reversed summary judgment in favor of an employer in an age discrimination case involving a 64-year-old applicant for promotion. The plaintiff, Inga Danville, was one of five applicants designated as "highly qualified" for the position of Manager of Transfusion Services. While the four other highly-qualified applicants were offered interviews, Danville was not. Members of the selection committee testified at deposition that in rejecting Danville for the position, committee members expressed concerns about her management abilities and that she was abrasive and difficult to work with. However, when a supporter on the committee asked why Danville was not being interviewed, other members said that a decision had been made not to even interview Danville for the position, to which another member responded, "she might not be around very long anyway."

The Court held that these facts raised an inference of pretext sufficient to defeat the employer's motion for summary judgment. The selection committee's discussion concerning Danville's management abilities and abrasive manner appeared to come only after a decision had been made not to interview her. Moreover, the Court rejected the employer's argument that the comment that Danville "might not be around very long anyway" was a stray, ambiguous remark insufficient to show pretext. Although the comment may have been isolated and ambiguous, a nexus existed between the comment and the hiring process. "The remark referred directly to the plaintiff and was made during the committee meeting at which interview candidates were selected," the Court said. "There was evidence from which a jury could conclude that the remark was intended to explain why plaintiff was not being interviewed."

1. Opinion by Reinhardt; joined by Magill and Fisher.

2. Opinion by O'Scannlain, King concurring, separate concurrence by Paez.

3. Opinion by Hawkins; Kozinski concurring; dissent by Berzon.

4. Opinion by Vogel; Epstein and Hastings concurring.

5. Opinion by Mallano; Spencer and Ortega concurring.

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