2002-15

NINTH UNITED STATES CIRCUIT COURT OF APPEALS

A. Voluntary Resignation Due to Religious Beliefs Did Not Constitute Constructive Discharge

Lawson v. State of Washington et al, 2002 DJDAR 7791 (9^th Cir. Jul 12, 2002) (opinion by Tallman, joined by Reavley, T.M., dissent by Fletcher, B.).

Plaintiff Gregory Lawson was a new cadet in the Washington State Patrol Academy. Part of his police academy training required him to assemble for flag formations up to twice a day. He participated in such activity for two days, but then became troubled by the conflict between these actions and his faith. As a Jehovah's Witness, Lawson could swear allegiance only to his faith and to God. Despite having certified his willingness to take an oath to support the constitutions of the United States and of the state of Washington, he notified a Trooper Advisor Counselor after his second day of training that he had decided to resign because of the conflict between his religious beliefs and the job requirements. He asked the TAC whether any accommodations such as standing respectfully or performing cleaning duties elsewhere during the flag formations could be performed, but the TAC said he did not know of anything that could be done. Due to his belief that he had no alternative, Lawson resigned. When he met with the acting commander of the Washington State Patrol Academy to inform him that his religious beliefs prevented him from saluting the flag and taking the oath, the acting commander did not discuss possible accommodations, but handed him a pre-prepared resignation letter. In an exit questionnaire, Lawson stated that he left the academy because of his religious beliefs and because time away was hard on his family. He also tried without success to discuss potential accommodations with the commander of the WSP Human Resources division. Thereafter, he filed administrative claims, followed by a lawsuit under Title VII and state law claims.

An employer's obligation to accommodate an employee's religion under Title VII was established by the Supreme Court in TWA v. Hardison, 432 US 63 1977. After establishing a prima facie case by demonstrating a bona fide religious belief, informing the employer of the conflict between his beliefs and job requirements, and a threat or actual discharge or other adverse job action, the burden shifts to the employer to demonstrate that it initiated good faith efforts to accommodate the employee's religious practices or that it could not reasonably accommodate the employee without undue hardship. The District Court held, however, that Lawson failed to demonstrate a prima facie case because he voluntarily resigned.

The Ninth Circuit affirmed. It held that a constructive discharge occurs only "when a person quits his job under circumstances in which a reasonable person would feel that the conditions of employment have become intolerable." Summary judgment is appropriate against a constructive discharge claim where the decision to resign was unreasonable as a matter of law. In this case, the evidence showed that one of the reasons Lawson wanted to resign was the fact he was away from his family, that Lawson first mentioned resignation to his counselor, and that no one had even suggested the imposition of discipline. The court also noted that cadets drop out of the program for a variety of reasons. "We see no reason why, as part of the screening and training process, the Academy staff must try to talk every recruit out of resigning once an individual announces that he wants to leave."

The Ninth Circuit also held that because there was no Title VII violation, there were no facts to support Lawson's claim under 42 USC Û1983.

In dissent, Judge Fletcher opined that a reasonable trier of fact could find that a reasonable person in Lawson's position would have felt compelled to resign. She found that when the TAC told Lawson he would not be excused from saluting or swearing allegiance Lawson "reasonably expected that discipline or termination for insubordination would follow if he failed to comply." Due to the potential damage to his future career in law enforcement and the potential "humiliating public spectacle" that would result from his termination for insubordination, Judge Fletcher concluded Lawson "understandably...saw no alternative but to resign." Judge Fletcher also found fault with the WSP's failure to attempt to make any accommodation for Lawson's religious beliefs.

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B. Though Touching on Public Concern, Public Employee's Letter is Not the Basis for Retaliation Claim.

Pool v. Vanrheen, 2002 DJDAR 7861 (9^th Cir. Jul 25, 2002) (opinion by Rhoades, joined by Nelson, D.W. and Leavey).

Vera Pool began working as a corrections officer in the Multnomah County Sheriff's office in 1970. She ran for Sheriff in 1994 and 1995, the latter time dropping out and supporting the ultimate winner, Noelle. Noelle appointed Pool Commander of the Corrections Support Division. In 1997, Pool was the subject of an internal affairs investigation due to her actions in early-releasing an inmate. Ultimately, she was reprimanded by Noelle.

Thereafter, Noelle appointed Pool "Acting Sheriff" while Noelle was out-of-town, just a few weeks after her reprimand. Pool attended a meeting where she had a friend read a letter in which Pool criticized the Sheriff's Office as a "good ole boy network" and complained of her reprimand. When Noelle returned to the ensuing maelstrom, he demoted Pool for her comments that in the Sheriff's Office, "like a septic tank, the really big chunks always rise to the top" and for other performance-related reasons. Pool sued, alleging violation of her right to free speech under 42 USC Û1983 and retaliation under Oregon law. The district court granted summary judgment, and Pool appealed.

Under established Supreme Court authority, a public employee claiming a violation of speech rights must show her speech addressed a matter of public concern and was a substantial factor in the challenged employment action. Then, the entity must show a legitimate administrative interest that outweighs the employee's interest in freedom of speech. The district court and the Ninth Circuit found Pool's speech to have addressed a matter of concern. Although she addressed her own employment grievance as well, the obvious purpose of her speech was to express concern about discrimination in the Sheriff's Office and to discuss the release of the prisoner. Additionally, while the speech was the "last of many contributing factors" in her demotion, it was still a "substantial or motivating factor."

Nevertheless, the Sheriff's Office's legitimate administrative interests outweighed Pool's free speech rights. She was a Commander in the Office and was serving as Acting Sheriff when she engaged in the controversial speech. She signed the letter "Commander, Multnomah County Sheriff's Office," lending the authority of the Office to her statements, and she held a confidential, policy-making, or public contact role. These factors magnified the government's interest in avoiding disruption. Moreover, courts are to give greater deference to a quasi-military organization such as a sheriff's office, in making such judgments. Given Pool's duty to act as a liaison between the Sheriff and the community, her "septic tank" comments were counterproductive to the office's mission. Rather, they detrimentally affected the functioning of the office.

The Ninth Circuit also affirmed the district court's award of summary judgment on Pool's state law retaliation claim which law is based on and modeled after Title VII. The letter that led to her demotion did not allege unlawful discrimination, and was therefore not protected activity. She also failed to show she would have been treated differently in the absence of any alleged discriminatory motive.

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OTHER UNITED STATES CIRCUIT COURTS OF APPEALS

NLRB v. Kentucky Tenn. Clay Co., 137 D.L.R. A-8 (4^th Cir., No. 01-2202, 7/12/02). (Opinion by Traxler, jointed by Williams and Gregory)

Rejecting the National Labor Relations Board's certification of a union's election victory amid threats of violence, the Fourth Circuit ruled that threats issued by a pro-union employee invalidated the election and dissolved the Board's order that the company bargain with the union.

Under the NLRA, representation elections are to be held in "laboratory conditions," in which employees are free from coercion or threats when voting on whether to be represented by a union. Odell Glover and Myron Renew worked at their employer's South Carolina clay facility. Boilermakers Union officials left the campaign largely in their hands, using them to distribute union literature at the workplace while a union official stayed in a motel room nearby.

Glover and Renew threatened several employees with job loss and otherwise if they did not support the union. The union won the election, 23-21. The company challenged the results, but a hearing officer overruled its objections to the pre-election conduct and certified the union as the employee's bargaining representative. The company refused to bargain with the union, prompting it to file an unfair labor practice charge with the NLRB. The company admitted it refused to bargain, continuing to contest the validity of the election and the union's representative status. The Board found for the union, ordered the company to bargain, and proceeded to the Fourth Circuit for enforcement of its order.

The Fourth Circuit refused, finding the threats issued by the pro-union employees destroyed the employees' ability to make a "fair and free choice" in the election. Actions by "third parties" (which typically include individual employees) are usually not attributed to a union or employer and are less likely to be seen as coercive. In this case, however, the union had delegated so much organizing authority to the two employees that they were deemed agents of the union. The union should have been aware that by authorizing and directing Glover and Renew to engage in such activity as obtaining authorization cards and disseminating pro-union information, it created apparent authority in them to speak for the union. The employees they threatened reasonably believed Glover and Renew could adversely affect their jobs if they did not support the union. Thus, the Fourth Circuit held the Board abused its discretion in certifying the election results and denied enforcement to the Board's order.

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B. NLRB Election Certification Overturned Due to Threats

Associated Rubber Co. v. NLRB, 132 D.L.R. E-1 (11^th Cir., No. 01-12884, 7/5/02) (Opinion by Edmondson, joined by Carnes and Siler).

During a representation election campaign, Leroy Brown, a mixer-operator at a rubber plant offered union literature to Tim Spears, a mill operator. When Spears refused the literature twice, Brown told him he would pay for it. A week later, Brown was operating a mixer dropping 450 pound batches of rubber at 250 Fahrenheit to a lower level where Spears was running them through rollers to form sheets. In retaliation for Spears' rejection of the union literature, Brown dropped the scalding rubber to Spears extra fast, repeatedly ignoring Spears' signals to slow down over a two and a half hour period. The incident and the prior threat were widely reported at the plant, and the United Steelworkers Union won the election three days later, 53-50.

The company objected to the election, but a hearing officer recommended overruling the objection and the Board adopted his findings and certified the election. While serious, the Board found the conduct "not serious enough," not retaliatory, and not sufficient to alter the election. The company refused to bargain, leading to a ULP charge and a bargaining order.

When a union engages in pre-election misconduct, the Board will overturn an election if the conduct "interfered with the employees' exercise of free choice to such an extent that it materially affected the results of the election." Where the misconduct is engaged in by an employee who is not an agent for the union, the company must show "the misconduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible." The Eleventh Circuit assumed the Board correctly found Brown was not an agent of the union, but found the election results should not have been certified.

To determine whether the "ideal atmosphere" for an election has been destroyed, courts examine whether (1) the evidence establishes fear in the minds of the voters, (2) whether fear affected their votes, and (3) whether the results might have been different if not for the fear. Important factors include the seriousness of the conduct or threat, whether it was reasonably taken seriously, how close to the election it occurred, and how narrow the election was. Proof of actual votes being changed is not required where other factors are present.

Given the severity of the conduct, the proximity of the conduct to election day, and the undisputedly retaliatory, pro-union motive for the conduct, the Eleventh Circuit held the conduct sufficient to overturn the election, and denied enforcement to the Board's order.

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C. Court Finds NLRB's Explanation of Ruling Inadequate

International Union of Operating Engineers Local 147 v. NLRB, 135 D.L.R. A-1 (D.C. Cir., No. 01-1301, 7/9/02) (opinion by Ginsburg, D.H., joined by Randolph, A.R., and Tatel, D.S.)

Following the certification of IUOE Local 147 to represent engineers at Tidewater Construction and months of unsuccessful bargaining, employees struck for two months then made an unconditional offer to return to work. The company locked them out and hired replacement workers. The company refused to hire six applicants on the lockout list (from which new hires should be selected), falsely informing them there was no work for them, and neglecting to inform them they were on a lockout list.

The union filed a ULP charge, alleging the company illegally refused to consider them due to union animus. While an administrative law judge dismissed the complaint and the NLRB affirmed, the D.C. Circuit held the company's actions evidenced anti-union animus. The court noted the employer included employees on the lockout list who were not strikers and were not eligible to vote in the prior election, but whom the company thought were pro-union. It also noted the company relied on an old voter eligibility list which it knew contained only union members, and it faulted the Board for not raising this issue.

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D. Tenth Circuit Rules Fee Deductions From Probationary Employees Inappropriate

NLRB v. Oklahoma Fixture Co., 135 D.L.R. AA-1 (10^th Cir., No. 01-9516, 7/9/02) (opinion by Kelly, P.J., joined by Winder, D.)

Employees at Oklahoma Fixture's Tulsa facility were represented by Carpenters and Joiners of America Local 943. The CBA's union security clause required union membership in good standing as a condition of employment and that employees join the union on their 91^st day of employment.

The union also established a "permit fee" to be paid by probationary employees in their second and third months of employment. This fee, equivalent to union dues, was deducted from wages by the company and remitted to the union in the same manner as dues. In 1997, the company unilaterally stopped deducting and remitting "permit fees." The Union filed a ULP charge, claiming the company violated Sections 8(a)(1) and (5) of the NLRA by changing the terms and conditions of employment without bargaining.

An administrative law judge found a violation by the employer, and the NLRB affirmed. The employer appealed to the Tenth Circuit, claiming that any payment by the employer to the Union, other than "in payment of membership dues in a labor organization," violated Section 302 of the Act. The Board maintained that payment of permit fees fell within the "dues" exception.

The Tenth Circuit vacated the Board's order. It held that union membership can be a condition of employment only when whittled down to its financial core, and that under the CBA, membership did not begin until the 91^st day. It rejected the Board's arguments that permit fees should be treated like membership dues or initiation fees, because the CBA clearly excluded probationary employees from the definition of "union members." Because permit fees were not properly seen as dues, the withholding of them and remittance to the union would be a crime under Section 302.

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E. Calling Statistical Evidence "Unreliable," Seventh Circuit Rejects Teacher's Bias Claim

Bennett v. Roberts, 135 D.L.R. A-4 (7^th Cir., No. 01-1939, 7/2/02) (opinion by Ripple, K.F., joined by Bauer, W.J. and Posner, R.A.)

A black school teacher who was rejected by a district for 19 positions sued the district for race discrimination, claiming both disparate treatment and that the district's use of an all-white screening committee had a disparate impact on black applicants. The district court rejected her claims and awarded summary judgment finding her statistical arguments flawed.

On appeal, the Seventh Circuit affirmed. The plaintiff's expert statistical witness purported to show bias by comparing the district's workforce with that of the general teacher pool in Illinois, by comparing the district's hires with the teachers employed in the Chicago Primary Metropolitan Statistical Area during particular years, and by comparing the district's applicant flow data to the teachers employed in the Chicago PMSA. Among the flaws found by the court were the expert's failure to consider the interest Chicago teachers would have in commuting to the far western suburban district and his failure to substantiate his belief that the district naturally would seek applicants from the entire State of Illinois. The court also rejected the disparate impact claim, finding the plaintiff's evidence as to a single employment practice - all-white screening committees, was insufficient. She offered no evidence that this practice affected anyone other than herself.

The court rejected the plaintiff's claims based on 42 U.S.C. ÛÛ 1981 and 1983 and the Fourteenth Amendment, and rejected all claims against the board members in their individual capacities.

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F. Fifth Circuit Uses Seven-Day Presumption on Receipt for EEOC Right-to-Sue Letter

Taylor v. Books A Million Inc., D.L.R. (5^th Cir., No. 01-31134, 7/15/02) (opinion by Stewart, C.E., joined by Jolly, E.G. and DeMoss, H.R.)

The Fifth Circuit has adopted a seven-day presumption of receipt of an EEOC right to sue letter where actual receipt is unknown or disputed. Chris Taylor sued his former employer, Books A Million, for discriminating against him in failing to promote him, disciplining him and constructively discharging him. He filed his lawsuit on January 5, 2001, 98 days after the EEOC issued a right to sue letter on September 29, 2000. Surveying other circuit decisions applying a three-day presumption and a five-day presumption, the court ruled that even under the "maximum" seven days that other courts have applied, the filing was untimely. The district court erred in starting the 90-day period on the date of mailing, but properly dismissed the lawsuit as untimely.

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G. Two Female Job-Seekers Entitled to Back Pay From Joe's Stone Crabs, Eleventh Circuit Says

EEOC v. Joe's Stone Crabs Inc., D.L.R. (11^th Cir., No. 01-12917, 7/12/02) (per curium, judges Tjoflat, G., Cox, E. and Bright, M on panel)

In the latest episode of a long-running federal epic, the Eleventh Circuit has ruled that two of four women deterred from applying as servers at Joe's Stone Crab by its all-male server policy were entitled to back pay. The EEOC first charged the restaurant with discrimination in 1991. A federal court in 1997 found the policy discriminated against women as 108 consecutive jobs went to men and few women applied. In 1998 the court ordered injunctive relief regarding hiring policies, as well as $154,000 in damages to four women deterred from seeking positions. After appeal and remand, the court in 2001 reinstated its back pay order. The Court found no express policy of excluding women, but did find this was "a prevailing attitude."

Joe's appealed, claiming that because none of the four actually applied for positions, they could not recover. The Eleventh Circuit rejected this argument, holding that a non-applicant may establish a prima facie case by showing she refrained from applying due to a justifiable belief that it was futile. The court did reverse the back pay award as to two of the four women, finding the EEOC failed to demonstrate their "real and present interests" in applying at the operative date, 1990. One applied in late 1991, the other intended to apply in 1989 but did not participate in the restaurant's pre-applicant screening process.

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