Selected Links to featured Employment Law News items from WK Workday

Selected Links to featured Employment Law News items from WK Workday

Posted September 6, 2018

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Top labor and employment developments for August 2018

Chart of nonunit positions showed information requested by union—and withheld by employer—was relevant

FCRA class action revived because lost opportunity to respond to background check was concrete injury

Requiring applicant BNSF perceived had a back impairment to pay for MRI, revoking job offer when he refused, showed disability bias

Former police dispatcher who received bad references after she sued can proceed with 1st A retaliation claim

Dispute over retiree healthcare benefits not subject to arbitration as retirees are not ‘employees’ under CBA

Email to board of directors, letter from attorney don’t ‘remotely’ support FLSA reprisal case

The shifting burdens of going forward in cases alleging unlawful discrimination

The shifting burdens of going forward in cases alleging unlawful discrimination

Haughton v Town of Cromwell, Cromwell Police Department, USCA, Second Circuit, Docket 17-2412-cv [2018]

Robert Haughton, a Town of Cromwell, Connecticut, police officer, alleged that the Town refused to assign to the position of Detective because of racial or ethnic discrimination in violation of Title VII of the Civil Rights Act.

While it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin," the Circuit Court explained that an aggrieved employee is required to demonstrate a prima facie case of disparate treatment, at which point the burden shifts to the employer to demonstrate that the employment decision was made for 'legitimate, nondiscriminatory' reasons."

Further, said the court, if the employer meets this burden, the plaintiff must then “offer evidence sufficient to support a reasonable inference that . . . the defendant intentionally discriminated against the plaintiff.”

In this instance the court assumed, without deciding, that Haughton met his prima facie burden. However, the Circuit Court held that the Town met its burden in demonstrating a legitimate, non-discriminatory reason for its assignment decision and Haughton failed to demonstrate that reasons offered by the Town in support of its decision "was merely pretext."

Haughton failed to identify admissible evidence that would permit a jury to find that the Town acted with discriminatory intent when it chose to promote another officer instead of Haughton to Detective and employers are entitled to set their own legitimate, nondiscriminatory requirements for open positions.

The decision is posted on the Internet at:

https://www.courtlistener.com/opinion/4529422/haughton-v-town-of-cromwell/

Duty of fair representation

Duty of fair representation

Staten v Patrolmen’s Benevolent Ass’n.,  et al, USCA, Second Circuit, Docket 17-3764

In this action Claude A. Staten, pro se, sued his union, the Patrolmens’ Benevolent Association [PBA] for breach of contract, violation of the duty of fair representation, and discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The district court dismissed Staten’s complaint for failure to state a claim. The Circuit Court, sustaining the lower court's ruling, said the district court had correctly dismissed Staten’s breach of contract claim.

The Circuit Court explained that:

1. A union member may sue his union for breach of a collective bargaining agreement, citing United Steelworkers of Am., AFL-CIO-CLC v. Rawson , 495 U.S. 362;

2. The union member “must be able to point to language in the collective-bargaining agreement specifically indicating an intent to create obligations enforceable against the union by the individual employees; and

3. Staten failed to cite any language from the CBA that obligated the PBA to provide legal representation to him in his discrimination lawsuits against the police department.

The Circuit Court noted that Staten alleged that the PBA’s website listed "the legal benefits the PBA offered active-duty police officers" for his or her legal representation. However, as the district court observed, however, those benefits "do not include representation in affirmative discrimination suits against the police department."

Further, the district court had dismissed Staten’s duty of fair representation claim as untimely, noting that there is a six-month statute of limitations for duty of fair representation claims and the PBA had denied Staten's request for representation eleven months before he filed his initial complaint in federal district court.

Although Staten argued that the PBA’s actions "were part of a continuous violation and that his lawsuit was therefore timely," the Circuit Court pointed out that "the continuous violation doctrine, which permits a plaintiff to raise challenges to otherwise time-barred events because they are a part of a pattern of illegal activity, does not apply to duty of fair representation claims," citing Buttry v. Gen. Signal Corp., 68 F.3d 1488.

Another element noted in the decision was that Staten’s Title VII claims ran afoul of a failure to exhaust administrative remedies as "[b]efore a plaintiff can file a federal court complaint under Title VII, he [or she] must exhaust his [or her] administrative remedies by filing a charge with the EEOC and receiving a right-to-sue letter.  Apparently Staten failed to obtain a right-to-sue letter before filing his original and amended complaints.

The decision is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/6d5f1df6-ca6c-4372-9e16-1954ef0e5b03/6/doc/17-3764_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6d5f1df6-ca6c-4372-9e16-1954ef0e5b03/6/hilite/