Cautionary Tale – Employee’s Profanity Laced Facebook Post is Protected Activity in a Recent Federal Court Decision

Beth Rae ODonnellOn April 21, 2017, the Second Circuit Court of appeals in NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2nd Cir. 2017), upheld the National Labor Relations Board’s conclusion that a terminated employee’s profanity based comments about his supervisor on Facebook were not so egregious as to exceed protection under the National Labor Relations Act (NLRA or Act).

Pier Sixty operates a catering company in New York City.  In 2011, many of its service employees began seeking union representation.  Both sides agreed that a tense union organizing campaign occurred which included threats from management that employees could be penalized or discharged for union activities.

Two days before the election, on October 25, 2011, Bob McSweeney, a supervisor, gave Hernan Perez, a server, directions in a harsh tone and told him to stop “chitchatting.”  About 45 minutes later, during an authorized break from work, Perez posted with his iPhone on his Facebook page:  “Bob is such a NASTY MOTHER FXXXER don’t know how to talk to people!!! Fxxk his mother and his entire Fxxxing family!!!  What a LOSER!!! VOTE YES for the UNION!!!”

“Bob” in the message was Perez’s supervisor.  Ten of Perez’s coworkers were his friends on Facebook.  Pier Sixty’s employees voted to unionize on October 27, 2011.  Perez took the Facebook post down on October 28, 2011.  Management of Pier Sixty learned of the Facebook post and fired Perez on November 9, 2011.  Perez filed a charge with the NLRB alleging he had been fired for “protected, concerted activities.” The Union organizer for the employees filed a second charge alleging unfair labor practices and that an employer is prohibited from discharging employees for participating in protected, union-related activity.

An Administrative Law Judge issued a decision in favor of Perez and following an appeal by Pier Sixty, the NLRB affirmed.  Pier Sixty filed a Petition for review with the Second Circuit.

The Second Circuit upheld the Board’s decision under a deferential standard of review applied for appeals of Board decisions in unfair labor practice cases.  The Court held that even though Perez’s message contained vulgar attacks on his supervisor and his supervisor’s family, the “subject matter” of the message included workplace concerns – management’s allegedly disrespectful treatment of employees and the upcoming union election.  The Court noted that Pier Sixty had demonstrated hostility toward union activities and had threatened to rescind benefits or fire employees who voted for union representation.  Further, the Court found it persuasive that supervisors and employees alike frequently used profanity in the workplace for which no one was ever disciplined.  Finally, although the Court noted that the post was vulgar and inappropriate, the comment was not the equivalent to a “public outburst” in the presence of customers and could reasonably be distinguished for other cases of “opprobrious conduct.”

Although the Court ruled against the employer, the Court did note that it was analyzing the specific facts presented, and stated an employee engaged in protected activity could act in a way that would result in the loss of protection under the NLRA.  The Court gave deference to the findings of the Board but also stated that the case sits at the “outer-bounds” of protected, union-related comments.

This illustrates that employers must carefully examine all the facts and circumstances surrounding an employee’s social media activities when deciding whether a posting is related to workplace issues, and if it does, whether a posting is so egregious so as to lose NLRA protection.  The case also stands for the proposition that discipline was not evenly applied and this certainly worked against the employer. Finally, while it is key that social media policies not inhibit concerted activity, employers still have not lost the right to reasonably discipline employees who engage in abusive conduct that harms morale, particularly if it constitutes outrageous activity or discloses company trade secrets.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.

Supreme Court Opinion Released: Fry, IDEA, FAPE and Administrative Remedies

chris-mcintire-photoA school district refuses to allow the service dog of a student with disabilities into the classroom because the student was assigned a one-on-one instructional aide by the school district, rendering the service dog superfluous. The parents remove their child from the school district and ultimately sue the school district and the school’s principal for violations of Title II of the American’s With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504). The parents did not sue the defendants under the Individuals with Disabilities Education Act (IDEA), nor did they allege in their lawsuit their child was denied a Free Appropriate Public Education (FAPE) under the IDEA. The question remains: Do the parents have to satisfy the administrative requirements of IDEA, even though they are not alleging an IDEA violation?

In this case, the Supreme Court said yes. On February 22, 2017, the Supreme Court published its ruling in Fry et vir, as Next Friends of Minor E.F. v. Napoleon Community Schools et al Fry 580 U.S. __ (2017), in which the court sought to clear up confusion about how the IDEA, ADA, and Section 504 interact. Five justices signed off on the majority opinion, with Justices Alito and Thomas writing a separate concurrence.

The court’s opinion dealt with the confusion that occurs when a violation of a disability right is alleged in the educational setting.  In addition to the IDEA, in 1986 Congress passed the Handicapped Children’s Protection Act, 20 U.S.C. §1415(l), establishing a “carefully defined exhaustion provision” indicating that a person seeking relief under the ADA, Section 504 or similar laws available under the IDEA must first exhaust IDEA’s administrative remedies. The issue in Fry was when does §1415(l) actually come into play. Fry helps clear up when the IDEA administrative remedies must be satisfied.

First, where the gravamen of the lawsuit does not involve a denial of a FAPE under the IDEA, there is no requirement to satisfy the IDEA’s administrative requirements. If the lawsuit alleges the student was denied a FAPE, then IDEA’s administrative requirements apply, even if the lawsuit is brought under the ADA or Section 504 – and does not cite an IDEA violation.

The court noted that there is some overlap between the statutes.  It is important to look at the central issue of the case, and the nature of relief being sought. The court offers a suggested diagnostic test in the form of two hypothetical questions to determine whether the IDEA and FAPE are at play. First, could the plaintiff have brought the same claim against another public facility that was not a school? Second, could an adult at the school have brought essentially the same claim? If the answer is yes to these questions, it is unlikely the complaint involves a claim under the IDEA.

In addition, the court notes that prior actions by the plaintiff should be considered. If the IDEA administrative remedies were pursued earlier in the process, those efforts may be, in the court’s words, “strong evidence that the substance of the plaintiff’s claim concerns a denial of FAPE, even if the complaint never explicitly uses that term.” Fry at Page 3 ¶1(b).

The partial concurrence by Justices Alito and Thomas gives an insight into how plaintiffs may attempt to counter the holding in Fry. Justices Alito and Thomas disagree with the majority’s suggested diagnostic test. The hypothetical questions are based on a claim that there may be some overlap between the IDEA, ADA, and Section 504. Justices Alito and Thomas do not see any overlap, therefore there is no need for the diagnostic test, and, accordingly, plaintiffs may seek to challenge any associated analysis. Secondly, Justices Alito and Thomas note parents may begin the investigation process thinking they should pursue an IDEA cause of action, only to learn they are going down the wrong path towards relief or decide they want a different form of relief, something the IDEA does not provide.

Justices Alito and Thomas’ concern about using pre-litigation efforts to establish whether a case’s core issues involve a FAPE violation under the IDEA is reasonable. There does, however, appear to be interconnections between the IDEA, ADA, and Section 504 from the way the term “disability” is defined to the way the laws interact. For example, Section 504 addresses the concept of FAPE, which the IDEA and the 1986 Handicapped Children’s Protection Act build upon.

No solution is perfect, but the Fry decision does give defense attorneys a stronger hand when faced with education-related lawsuits that try to avoid the administrative requirements outlined under the IDEA.

Christopher A. McIntire is an attorney in our Riverside, CA office where he focuses his practice on public entity defense, employment law, premise liability and mass tort defense. He may be reached at (951) 276-4420 or cmcintire@cmda-law.com.

Grant Obtains Dismissals on behalf of Judge and Prosecutor

Greg Grant 2013colorGreg Grant, an attorney in our Traverse City office, recently obtained dismissals on behalf of a Northern Michigan judge and prosecutor in two separate civil rights cases. In both cases, the courts awarded his clients all of their attorney fees and costs. Mr. Grant aggressively defends judges, attorneys, and municipalities as a regular part of his practice.

Greg Grant focuses his practice on municipal law, employment and labor law, insurance defense, and litigation.  He has extensive litigation experience in the areas of employment and labor law, police liability, first amendment law, due process, Open Meetings Act and Freedom of Information Act, and has earned dismissals in each of these areas.  Additionally, he frequently provides educational and training seminars on municipal topics to clients. 

He may be reached at (231) 922-1888 or ggrant@cmda-law.com.

Sixth Circuit Reinforces the Importance of Protecting the Identities of Confidential Informants

Matt CrossIn Nelson v. City of Madison Heights, et al., while conducting a narcotics investigation at a motel police walked by the room of Shelly Hilliard (“Hilliard”) and spotted a bag of marijuana through the window. After obtaining her consent to enter the room, police found the bag of marijuana. In order to avoid arrest, Hilliard offered to call her drug dealer and order drugs from him. Hilliard signed a confidential informant form in which the sheriff’s department promised to use all reasonable means to protect her identity.

Police intercepted the drug dealer on his way to the motel. While questioning the passenger in the drug dealer’s vehicle, police revealed Hilliard as the source of their information. The passenger conveyed this information to the drug dealer. The police warned Hilliard the drug dealer knew she had set them up and he appeared angry about it. Soon thereafter, the drug dealer and an accomplice abducted and murdered Hilliard.

Hilliard’s mother (“Nelson”) filed a section 1983 claim against the police departments for which Hilliard served as a confidential informant. The defendant officer that revealed Hilliard’s identity moved for summary judgment based on qualified immunity and the district court denied the motion.

On appeal, the Sixth Circuit noted that government officials performing discretionary functions are afforded qualified immunity as long as their conduct does not violate clearly established constitutional rights. Hilliard’s interest in preserving her life is one such right.

Although the state has no duty to protect citizens from private acts of violence, it cannot cause or increase the risk of harm to citizens through its own affirmative acts without due process. Nelson claimed defendants were responsible for her daughter’s death under the “state created danger” theory. In order to establish liability under this theory, Nelson had to show:

(1)    An affirmative act by defendants that created or increased the risk Hilliard would be exposed to an act of violence by a third party;
(2)    Defendants’ action placed Hilliard in a special danger, as distinguished from a risk that affects the public at large; and
(3)    Defendants knew or should have known its actions specifically endangered Hilliard.

The defendant officer argued that he did not create or increase Hilliard’s risk of violence because she volunteered to be a confidential informant, citing Summar v. Bennett, 157 F.3d 1054, 1056 (6th Cir. 1998). In Summar, the informant was made aware that he would eventually have to testify and reveal his identity. An officer provided the prosecutor with the confidential informant’s name so it could be included in a pleading. The defendant became aware of the pleading and had the informant murdered.

The Sixth Circuit found the facts in Nelson distinguishable from Summar because the officer in Nelson never told Hilliard she would have to testify and reveal her identity. Further, the officer directly disclosed Hilliard’s identity to the person from whom he was supposed to protect Hilliard.

The defendant officer also argued Nelson could not prove he was deliberately indifferent to the risk of disclosing Hilliard’s identity because his decision to do so was a “split second decision that did not involve reflection.” However, the Court held that this was a question of fact for the jury and viewing the evidence in the light most favorable to Nelson a reasonable jury could find the officer acted with deliberate indifference and violated Hilliard’s constitutional rights under the state created danger theory.

TAKEAWAY:

Confidential informants are an invaluable investigative tool and it is important for law enforcement personnel to be aware of the risks involved in using confidential informants. Law enforcement personnel should do all in their power to ensure the safety of confidential informants. The Court in Nelson highlighted the importance of making sure informants are fully informed of the extent to which they are expected to cooperate. In Nelson, the Court made much of the fact that the officer did not tell Hilliard she would need to testify and reveal her identity. As a result, the officer’s decision to reveal her identity increased her risk of harm. Tell informants they may be required to testify and reveal their identity even if their testimony is not ultimately necessary. Failure to do so may result in civil liability for the injury or death of an informant.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on business law, insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.

Grant Obtains a No Cause of Action Verdict in Federal Court

Greg Grant 2013colorGreg Grant of the Traverse City office recently obtained a no cause of action verdict in an excessive force trial in federal court.  Mr. Grant represented four corrections officers whom the plaintiff alleged used excessive force against him while he was inmate in a Michigan county jail.  Specifically, the plaintiff claimed that he was maced twice and tasered twice while locked in his cell.

The evidence at trial demonstrated that the plaintiff failed to follow verbal commands and was assaultive toward one of the officers.  The key to winning at trial was proving that the officers acted in accordance with jail policies and practices to preserve internal order and discipline, and to maintain institutional security.

Greg Grant, an attorney in our Traverse City office, focuses his practice on municipal law, employment and labor law, maritime law, insurance defense, and litigation.  He may be reached at (231) 922-1888 or ggrant@cmda-law.com.

Cross Obtains Favorable Arbitration Award for Concert Promoter

 After a prolonged dispute, Matt Cross obtained an arbitration award for a valued client, a Detroit-based concert promoter.  The promoter paid the producer of the show a $40,000 deposit in five installments to perform its show in Detroit last year.  The producer pulled out last minute and refused to return the promoter’s deposit, citing the promoter’s failure to timely pay two of the five scheduled payments.  Mr. Cross convinced the arbitrator that the producer waived any breach on the part of the promoter and the arbitrator returned an award in favor of the promoter for the full deposit amount plus attorney’s fees and costs. 

Matt Cross is an attorney in our Traverse City office where he focuses his practice on business law, insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.

The Sixth Circuit Court of Appeals Expands an Employer’s Defenses to a Claim of Discrimination

Gerry Davis 2016In the case of Richardson v Wal-Mart Stores, Inc., the United States Court of Appeals for the Sixth Circuit, which includes the state of Michigan, interpreted, clarified and enlarged the defendant employer’s defense to a claim of age discrimination under the Elliott-Larsen Civil Rights Act.

The Court of Appeals confirmed that the 62-year old plaintiff, Richardson, failed to offer either direct or indirect evidence that her job was terminated based on her age.  It has been her allegation that Walmart illegally terminated her job because of her age.  A former supervisor acknowledged her age, but the court recognized that the plaintiff could not establish her claim, because that supervisor was transferred to another store four months before Richardson was terminated, and that supervisor was not involved in the discharge decision.  Richardson further claimed the store manager who terminated her “exhibited a pervasive pattern of discriminatory conduct toward her,” and that this constituted direct evidence of discrimination.  While the store manager’s actions may have shown he probably did not like Richardson, none of the facts demonstrate discrimination based on age.  The Court of Appeals also recognized that Richardson failed to establish her claim based on circumstantial  evidence of discrimination because, even though she offered prima facie evidence enough to go to a jury for a fact adjudication, the defendant Walmart offered a legitimate non-discriminatory reason for her termination, alleging she engaged in unsafe work practices in violation of Walmart’s safety policies and her conduct brought her to the fourth and final steps of the company’s progressive disciplinary policy.

In accordance with law, the plaintiff argued that Walmart’s stated reasons were pretextual, that is, offered as a pretext for their real reason, which was discrimination.

Under case law and the theory of judicial precedence, where a court must follow the decisions of earlier courts regarding the same issue, a plaintiff must state enough facts to create legitimate questions of fact that support a basis of discrimination (prima facie evidence), and then it is for the trial court or a jury to decide if those assertions made by plaintiff are true.  When the plaintiff has offered evidence of discrimination, the burden of proof then shifts to the defendant to state a legitimate non-discriminatory reason justifying their actions.  If the defendant does that, the burden then shifts one more time, back to the plaintiff to prove that the defendant’s stated non-discriminatory reasons were a pretext (false reason) for the real reason, which was discrimination.

In the Richardson case, the court noted that other employees, even those younger than Richardson were disciplined and fired for similar reasons.  The Court of Appeals further stated that, even if the plaintiff could successfully dispute the disciplinary actions, “Walmart still would be entitled to summary judgment under the honest-belief rule, which prohibits a finding of pretext “if the employer can establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.”  Therefore, Walmart did not have to be correct in its judgment, as long as it honestly believed the facts upon which it relied for termination were true, or the facts existed as they honestly believed them to be.

The honest-belief rule also provides that an employer is entitled to summary judgment on pretext, even if conclusion is later shown to be “mistaken, foolish, trivial or baseless.”

This is a published case, meaning it is intended to constitute legal precedent for future cases decided under similar fact scenarios.

Gerald C. Davis is a partner in our Livonia office where he concentrates his practice on corporate and business law, leveraged buy-outs, company reorganization and refinancing, analyzing investments for joint ventures, intellectual property, and drafting loan agreements. He may be reached at (734) 261-2400 or gdavis@cmda-law.com.

Physical Disabilities in a Virtual World

chris-mcintire-photoBusinesses and public entities who routinely utilize their website to conduct business should be aware that there has been a steady increase in the number of lawsuits filed by disabled customers who cannot access websites.  The complaints have ranged from websites that could not be navigated without a mouse, websites disabling or otherwise making it difficult for accessibility software on the site visitor’s own computer to make full use of the site, and websites that do not include options to assist a visitor who is disabled.

In 2010, Hilton Worldwide was the subject of a Department of Justice (DOJ) suit for multiple violations of the Americans with Disabilities Act (ADA).  One violation involved the reservation website, which did not allow visitors to book ADA accessible rooms online.  Hilton explained that their website design software limited the number of room options in their dropdown menu; therefore they did not include the ADA accessible options in the menu.  Ultimately, Hilton was forced to accept a wide ranging consent decree from the DOJ that included, for the first time, specific instructions regarding website accessibility.  As part of the DOJ consent decree, Hilton was ordered to comply with the Web Content Accessibility Guidelines (WCAG), which included making all options available for visitors who wanted to book a room.

In addition to Hilton Worldwide, AOL, Charles Schwab, Netflix, Target, eBay, Ticketmaster and Travelocity have all either been sued or worked with advocacy groups to avoid litigation.  In the Target class action suit, Target paid $6,000,000 and installed online screen reading software on their website.  This is the first time a federal court decreed that an online store must provide accessible website service to disabled persons (National Federation of the Blind v. Target Corporation, 452 F.Supp.2d 946. N.D. Cal. 2006).

Public entities also need to make sure their websites are not in violation of the ADA. Can a disabled visitor do everything online that any other visitor can do?  If you stream or post video/audio of public meetings is there an option to get close captioning?  Is there a way for a disabled visitor to get help if they are having problems, either in real time or within 24 hours?

The Department of Justice is working on cyber ADA guidance, which they hope to roll out in 2018.  Until then, businesses and public entities who routinely utilize their website to conduct business should follow the steps below to avoid a potential lawsuits filed by a disabled customer who cannot access their websites.

1.)  Make sure your IT department is in compliance with the Web Content Accessibility Guidelines, which can be located online.

2.)  Provide website visitors with options.  Can visitors navigate the website with just a keyboard?  Can forms be filled out without a mouse?  Do you use “Alt-text” to describe photos, allowing text-to-voice software to describe photos they cannot see, and making sure any downloadable PDF files can be accessed by the visitor using assistive technology?  Can visitors increase text size, either using a feature on their own browser or by clicking on a page link to enable a larger font?

3.)  Keep it simple.  Website developers may want to create a cutting-edge site, however all those bells and whistles can disrupt a visitor’s accessibility, especially if the visitor has assistive technology on their computer.

We may never get it perfect.  We just have to strive to “get it right.”  There will always be new technology, and as clients adapt to new technology, attorneys at CMDA are available to provide guidance to ensure businesses and public entities who routinely utilize their website to conduct business avoid lawsuits filed by disabled customers who cannot access websites.

Christopher A. McIntire, an attorney in our Riverside, California office focuses his practice on public entity, schools, employment, ADA compliance, mass tort and premises liability defense. He may be reached at (951) 276-4405 or cmcintire@cmda-law.com.

Michigan COA: Seller of Boat was not Owner during Accident

Jennifer RichardsThe sale of a boat is a commonplace transaction in Michigan, especially during the summer months. According to the United States Coast Guard 2014 Recreational Boating Statistics, Michigan had 789,458 registered watercraft, one of the highest numbers of registrations in the country.

As we near the end of the 2016 boating season, the Michigan Court of Appeals in Williams v. Kennedy et. al, issued Aug. 2, 2016 (Docket No. 325267), recently held that the seller of a boat does not qualify as the owner of the boat during the period after the seller delivers the certificate of title, but before the transfer of title is registered with the Secretary of State. This is significant due to Michigan’s imposition of liability on the “owner” of a watercraft for injuries caused by negligent operation of the watercraft under MCL 324.80157.

This case, not handled by CMDA, arose out of a boating accident in 2013 that caused severe injuries to a minor. Michael Metcalf sold his boat to Mark Kennedy on August 26, 2013. In exchange for the sale price of the boat, Metcalf signed and delivered a “Watercraft Certificate of Title” containing a “Title Assignment by Seller.” Kennedy left the transaction with the boat and the Certificate of Title. Kennedy was then supposed to apply to transfer the legal title with the Secretary of State as is required by statute. Kennedy attempted to do so on August 28th and August 30th, but was unable due to long lines. Before the transfer paperwork was submitted to the Secretary of State, on September 1, 2013, Kennedy piloted boat and injured a minor after striking her with the boat. Kennedy was later able to complete the transaction at the Secretary of State on September 5, 2013.

The injured minor’s mother filed a negligence action naming both the seller and the buyer of the boat. She alleged that Metcalf, the seller, was liable as an owner for the alleged negligent operation of the boat under MCL 324.80157 which imposes liability on the owner of a watercraft for its negligent operation. Because the transaction had not been completed with the Secretary of State, the Court was faced with the question of “whether the seller of a boat qualifies as an ‘owner’ during the period after a seller delivers the certificate of title to a purchase but before the transfer of title had been registered with the Secretary of State.”

The Court ultimately held that Metcalf did not qualify as an owner before the transfer of title of the watercraft was registered with the Secretary of State. The Court construed the Natural Resources and Environmental Protection Act which sets forth the requirements for applying for a certificate of title for watercraft with the Secretary of State. The Court noted that this application must be filed within 15 days after the date of the purchase, and Kennedy fulfilled this requirement. The Court also noted that the Act provides that “[i]f satisfied that the applicant is the owner of the watercraft and that the application is in the proper form, the secretary of state shall issue a certificate of title.”  The Court reasoned that this suggested that ownership precedes the legal transfer of title with the Secretary of State.

Lastly, the Court construed the definition of “owner” under the Act. It noted that an owner is “a person who claims or is entitled to lawful possession of a vessel by virtue of that person’s legal title or equitable interest in the vessel.” The Court concluded that Metcalf could only qualify as an “owner” if he was entitled to lawful possession as a result of his legal title at the time of the accident. But, the Court determined that Metcalf was not entitled to lawful possession of the boat because he had already expressly transferred his possessory interest in the boat to Kennedy when he sold him the boat. Accordingly, Metcalf was not the owner of the boat at the time of the accident.

Based upon this decision, a seller of a watercraft is not an owner during the period after a seller delivers the certificate of title to a purchaser, but before the transfer of title has been registered with the Secretary of State. Although this decision seems to protect the seller of a watercraft from liability during the transfer of title, a seller of a watercraft can avoid liability for negligent operation under MCL 324.80157 by making sure that the application of a certificate of title for a watercraft is made with the Secretary of State.

Jennifer Richards is an attorney in our Livonia office where she concentrates her practice on appeals, law enforcement defense and litigation, municipal law and insurance defense.  She may be reached at (734) 261-2400 or jrichards@cmda-law.com.

Sixth Circuit Holds Dismissal of Firefighter’s Retaliation Complaint

Photo.RaeODonnell.FriedlandOn June 22, 2016, the Sixth District Court of Appeals unanimously issued a decision and order affirming the United States District Court’s dismissal of a firefighter’s two count retaliation complaint against a local municipality, four former and current Trustees, and the Fire Chief.

Plaintiff, who is of Asian descent, submitted an application for the vacant Fire Chief position to the township Board of Trustees. During an open board meeting on September 25, 2012, and in a 5-1 vote, the Board disqualified plaintiff’s application as insufficient. Besides missing an entire third page where some of the plaintiff’s credentials would have been listed to complete his application, in response to a written question on the application regarding why he should be selected as chief, plaintiff responded by stating: “To put an end to the corrupt practices brought on by the Board.” In response to a question regarding his goals for the next five/ten years, plaintiff responded: “To witness justice prevail.” The court ruled that these statements on his written application were just plain insulting to the Board.

By way of background, two years previously, in March of 2010, plaintiff filed an EEOC complaint against the township alleging that he was removed as the township’s IT Administrator because he is Asian. The township defended this matter on the ground that plaintiff was not the IT Administrator, although he had assisted with some networking responsibilities in the past. The plaintiff did not pursue a lawsuit against the township in 2010. Following the plaintiff’s 2012 disqualification for the Chief position, he sued claiming the disqualification was in retaliation for his 2010 EEOC complaint in violation of Title VII of the Civil Rights Act of 1964 and Michigan’s Elliott-Larson Civil Rights Act (ELCRA). Plaintiff also claimed that he was harassed by the new Fire Chief in 2013 and 2014 in retaliation for the 2010 EEOC complaint. Plaintiff claimed $1.02 million in damages for lost future wages which he believed he was entitled to because he should have been hired for the vacant position.

The Appellate Court noted for the “failure to interview” portion of the retaliation claim, there was no direct evidence of discrimination and that even circumstantially, a former trustees’ subjective opinion, with nothing more, that the plaintiff was not interviewed due to his EEOC claim was insufficient as a matter of law to support a cause of action. The court also agreed that the current Fire Chief’s actions of counseling the plaintiff regarding his low participation rates were not materially adverse employment actions, nor were the warnings causally connected to the plaintiff’s prior EEOC claim. Another significant factor for both the trial court and appellate court was the fact that the timing between the 2010 EEOC charge and the September 25, 2012 decision by the Board not to interview the plaintiff was simply too remote to establish a claim of retaliation under Title VII order ELCRA. Central to both the trial and appellate court decisions was the United States Supreme Court decision of Univ. of Tex. SW. Med Ctr. V. Nassar, 133 S.Ct. 2517 (2013). To establish a prima facie case of retaliation under Nassar, a plaintiff would have to make an offer of proof that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions on the part of the employer”—meaning defendants could not have denied plaintiff an interview or counseled him for low participation “but for” their retaliatory intent. Both courts found that plaintiff could not prove this threshold requirement.

This case was handled by CMDA attorneys Elizabeth Rae-O’Donnell and Linda Davis Friedland.  Karen Daley assisted with preparing the motion.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.

Linda Davis Friedland is an attorney in our Livonia office where she concentrates her practice on commercial litigation, employment and labor law, corporate and business law, estate planning, elder law, probate, trusts, guardianships and conservatorships. She may be reached at (734) 261-2400 or lfriedland@cmda-law.com.