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Employers Lose Important Procedural Employment Discrimination Case

Posted in Case Notes Commentary IMLA Briefs Monday Morning Review on June 3, 2019 By Lann McIntyre

Before an employee alleging employment discrimination under Title VII (on the basis of race, color, religion, sex, or national origin) may bring a lawsuit in federal court he or she must file charges with the Equal Employment Opportunity Commission (EEOC).

In Fort Bend County, Texas v. Davis the Supreme Court held unanimously that Title VII’s charge-filing requirement is a “mandatory procedural prescription” that a court must consider if timely raised (but may be forfeited if not timely asserted). The State and Local Legal Center (SLLC) filed an amicus brief arguing that the charge-filing requirement is jurisdictional, meaning it can be raised at any stage of the litigation. If the charge-filing requirement was jurisdictional and an employee failed to comply with it, a court would no longer have authority to hear the case.

In her charge form to the EEOC, Lois Davis alleged that supervisors at Fort Bend County had sexually harassed her and retaliated against her. While her charge was pending, she was fired for refusing to come to work on a Sunday because of a commitment at church. While she updated her EEOC intake questionnaire to include religious discrimination she didn’t update the charge form.

The EEOC investigated and gave Davis permission to sue. She brought a religious discrimination claim and a claim for retaliation for reporting sexual harassment. Years into the litigation Fort Bend County argued the court lacked jurisdiction to hear the religious discrimination claim because Davis never included it in the charge form.

The Court, in an opinion written by Justice Ginsburg, held that Title VII’s charge-filing requirement is a mandatory but waivable claim-processing rule (which was waived in this case because Fort Bend waited so long to point out Davis didn’t comply with the charge-filing requirement). Continue reading →

Justice Kavanaugh’s Surprising Oral Argument Questions in Partisan Gerrymandering Cases

Posted in Case Notes Commentary on March 26, 2019 By Lann McIntyre

The Supreme Court heard oral argument—yet again—in two cases arguing it should adopt a standard for when partisan gerrymandering is unconstitutional. Before argument court watchers were focused on Chief Justice Roberts, but during argument Justice Kavanaugh stole the show.

In 1986 in Davis v. Bandemer six Supreme Court Justices agreed that some amount of partisan gerrymandering is unconstitutional. But the Court has never laid out a test for making the determination.

Most recently, last term, with Justice Kennedy still on the bench, the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. The two cases before the Court today came from North Carolina and Maryland favoring Republicans and Democrats, respectively. By almost any measure the gerrymanders were unapologetic and extreme.

Now that the Court has five solidly conservative members many have speculated that these Justices will rule that partisan gerrymandering claims raise non-justiciable political questions, effectively ending litigation over this question.

In oral argument last term Chief Justice Roberts, now the Court’s likely swing Justice, used the term “sociological gobbledygook” when expressing his skepticism about the Court being able to agree to a satisfactory test. Today, as is typical, the Chief asked questions of both side. For example, he questioned the merits of a test that assumes how people will vote based on past voting noting how often predictions of how people will vote are wrong. On the other hand, he acknowledged that the Maryland gerrymander “seems to be retaliation” and noted that the Supreme Court has an “established analysis” to deal with First Amendment retaliation claims. Continue reading →

Supreme Court Hears Oral Argument in Maryland Partisan Gerrymandering Case

Posted in Case Notes Commentary Roundup on March 28, 2018 By Lann McIntyre

The challengers to the redistricting of Maryland’s Sixth Congressional District just might win—if the Supreme Court actually decides their case.

In Benisek v. Lamone in 2011 the Maryland legislature needed to move about 10,000 voters out of the Sixth Congressional District to comply with “one-person one-vote.” It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders in the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting.

Following the redistricting, Democrat John Delaney defeated the incumbent Republican by almost 21 percent. But two years later in 2014 Delaney almost lost his seat even though his challenger didn’t live in the district and raised less money. Two years after that, Republican Larry Hogan won the Sixth District, beating his rival by 14 percent.

A number of Sixth District Republicans sued alleging the state legislature “targeted them for vote dilution because of their past support for Republican candidates for public office, violating the First Amendment retaliation doctrine.”

In 2016, a three-judge court articulated a standard for when partisan gerrymandering violates the First Amendment. But two of the judges weren’t convinced that the challengers were able to demonstrate that but-for the partisan gerrymander, Republicans would have won and continued winning in the Sixth District. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on December 14, 2014 By Kira Klatchko

Catching up on recent published decisions involving local governments:

First Circuit

S. Kingstown Sch. Cmte v. Joanna S., No. 14-1177 (Dec. 9, 2014): The court ruled in Individuals with Disabilities in Education Act (“IDEA”) case that settlement agreement relieved school committee of obligation to perform or fund evaluations, and remanded to determine whether Joanna S. is entitled to attorney’s fees.

Second Circuit

Hardison v. Bd. of Ed. of the Oneonta City Sch. Dist., No. 13-1594 (Dec. 3, 2014): The court ruled, in IDEA case, that district court should have shown greater deference to state review officer’s determination to deny reimbursement.

Fourth Circuit

E.L. v. Chapel Hill-Carrboro Bd. of Ed., No. 13-2330 (Dec. 3, 2014): The court found that student did not exhaust her administrative remedies and that school board did not violate the IDEA; student received therapy mandated by her IEP.
AGI Assoc., LLC v. City of Hickory, No. 13-2097 (Dec. 11, 2014): The court found that under North Carolina law, governmental immunity from equitable claims is waived when a county or municipality acts in a proprietary, not governmental, capacity.

Fifth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on November 24, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Watchtower Bible and Tract Soc. of New York v. Mun. of San Juan, No. 13-1605 (Nov. 20, 2014): The court upheld injunction against municipalities that had issued permits for gated communties in Puerto Rico that did not provide access to public streets for First-Amendment activities.

Third Circuit

Dougherty v. Sch. Dist. of Philadelphia, No. 13-3868 (Nov. 21, 2014): The court affirmed denial of motion for summary judgment on qualified immunity grounds in case presenting First-Amendment retaliation claim.

Sixth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on November 10, 2014 By Kira Klatchko

Here are the last two weeks’ published decisions involving local governments:

Second Circuit

Golodner v. Berliner, No. 12-1173 (Oct. 27, 2014): In 1983 action alleging that City and City officials retaliated against Golodner for exercising his First-Amendment rights, the court affirmed that defendants were not entitled to summary judgment on the basis of qualified immunity.
Berman v. City of New York, No. 13-598 (Oct. 29, 2014): The court certified two questions to the New York Court of Appeals in suit challenging City law that regulates debt-collection agencies.
Harris v. O’Hare, No. 12-4350 (Oct. 30, 2014): In suit claiming that officers violated the Fourth Amendment when they entered yard and shot and killed family dog, the court found that there was insufficient evidence of exigent circumstances to permit warrantless search.
Floyd v. City of New York, No. 13-3088 (Oct. 31, 2014): The court ruled that public-sector unions may not intervene into litigation concerning City’s “stop-and-frisk” policy where the parties to the ligitation have agreed to settlement.

Sixth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on August 27, 2014 By Kira Klatchko

Apologies that this edition is delayed. I was tied up with a significant filing for the past week. The courts were busy too. Here are the last two weeks’ published decisions involving local governments:

First Circuit

Penn v. Escorsio, No. 13-2309 (Aug. 22, 2014): The court affirmed the district court’s denial of qualified immunity at the summary judgment stage to corrections officers alleged to be deliberately indifferent to risk that detainee could commit suicide. The court found that the issues presented on appeal were purely factual, and the court had no jurisdiction to decide them on interlocutory appeal.

Second Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on July 28, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

[Update: I added the Ninth Circuit’s Daubert decision. (7/31)]
Second Circuit

Carter v. Inc. Vill. of Ocean Beach, No. 13-815 (July 21, 2014): Affirming award of attorney’s fees to County defendants in case brought by former police officers alleging wrongful termination and defamation.

Cox v. Onondaga Sheriff’s Dept., No. 12-1526 (July 23, 2014): Affirming dismissal of complaint alleging Title VII retaliation for racial-harassment claims.

Reyes v. New York City Dept. of Ed., No. 13-158 (July 25, 2014): Finding that under IDEA, proposed IEP and school placement failed to provide student with free appropriate public education.

Fourth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on June 30, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Snyder v. Gaudet, No. 12-1422 (June 25, 2014) (In 42 U.S.C. 1983 action alleging violation of equal protection because city applied zoning restriction differently to Snyder than to prior owner, granting qualified immunity to defendants because right was not clearly established): Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on June 23, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Thayer v. City of Worcester, No. 13-2355 (June 19, 2014) (affirming denial of preliminary injunction against enforcement of city ordinances prohibiting coercive or risky behavior by panhandlers).

Second Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on June 16, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Third Circuit

Rosano v. Township of Teaneck, No. 13-1263 (June 10, 2014) (in action by current and former police officers against Township alleging violation of Fair Labor Standards Act because it did not pay proper overtime and provide compensation for attending daily roll calls and putting on and taking off uniforms, affirming grant of summary judgment for Township).

Seventh Circuit

Garofalo v. Village of Hazel Crest, No. 12-668 (June 12, 2014) (in action by former police sergeants, both white, alleging that the Village discriminated against them based on race by promoting a black officer to police chief, affirming summary judgment for Village).

Continue reading →

Is Terminating an Employee for His Job-Performance-Related Testimony a Constitutional Violation?

Posted in IMLA Briefs on April 14, 2014 By Kira Klatchko

That question arises in Lane v. Franks, No. 13-483, a Supreme Court case in which IMLA and the International Public Management Association have now filed a brief.

The Eleventh Circuit ruled that the termination did not trigger First-Amendment scrutiny:

No one disputes that Lane was acting pursuant to his official duties as CITY’S Director when he investigated Schmitz’s work activities, spoke with Schmitz and other CACC officials about Schmitz’s employment, and ultimately terminated Schmitz’s employment. That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on March 3, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Sixth Circuit

Rorrer v. City of Stow, No. 13-3272 (Feb. 26, 2014) (reversing grant of summary judgment to City and against plaintiff, a terminated firefighter with a non-work-related injury, on ADA claim; affirming grant of summary judgment for City on First Amendment and ADA retaliation claims).

Seventh Circuit

Bryant v. City of Chicago, No. 13-1142 (Feb. 28, 2014) (in appeal of dismissal of civil-rights suit as untimely, finding that district court abused its discretion by disregarding plaintiff’s timely discovery request and that court should have equitably tolled the statute of limitations).
Hayden v. Greensburg Comm. Sch. Dist., No. 13-1757 (Feb. 24, 2014) (ruling that policy requiring boys, but not girls, playing basketball to keep their hair cut short constitutes sex discrimination Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on February 5, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments*:

First Circuit

Pierce v. Cotuit Fire Department, No. 1301428 (Jan. 28, 2014) (affirming summary judgment against former employee who had claimed, among other things, that he was terminated in retaliation for First-Amendment activity).

Fourth Circuit

Montgomery County v. Federal National Mortgate Association, No. 13-1691 (Jan. 27, 2014) (affirming district court’s decision that general-tax exemptions applicable to Fannie Mae and Freddie Mac cover real-property transfer taxes, and that Congress had authority under the Commerce Clause to adopt the exemption). The Seventh Circuit addressed a related question in December.

Fifth Circuit Continue reading →

Ninth Circuit: Officer Removed After Raising Safety Issues Does Not Have First Amendment Claim.

Posted in Case Notes on December 5, 2013 By Kira Klatchko

If a public employee reports departmental-safety concerns to his supervisor, and the employee is removed from duty for raising those concerns, does the employee have a viable First Amendment retaliation claim?

In Hagen v. City of Eugene, No. 12-35492 (Dec. 3, 2013), the Ninth Circuit ruled that a public employee did not have a viable First Amendment claim under the particular circumstances there. The court ruled that, viewing all the evidence in the light most favorable to the employee, he was speaking as a public employee, not a private citizen.

The case involved a City police officer, Brian Hagen, who noticed that members of his SWAT team were often firing their weapons accidentally and negigently. Hagen tried to make his concerns about the team “as public as possible” by sending e-mails and raising the issue in meetings. Eventually, Hagen was removed from the K-9 team.

Hagen claimed that the City and senior officers had retaliated against him for exercising his First Amendment rights. Continue reading →