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2007 ANNUAL LAW UPDATE
EMPLOYMENT LAW
 

Prepared by: Kent L. Brown

 

Burlington Northern & Santa Fe Railway v. White, 126 S.Ct. 2405 (2006).
White, a forklift driver, complained of sexual harassment and his supervisor was disciplined. White moved to “track laborer” position and was suspended for insubordination. Through a grievance procedure, White was reinstated after 37 days and received full back pay. White sues for retaliation and wins. The new test used by the Supreme Court is that an employee must show that the employer’s conduct “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination” including objective and subjective components.

Cooper v. Albacore Holdings, Inc. and Gordon Quick, 204 S.W.3d 238 (Mo.App. E.D. 2006).
Cooper sues company and CEO for sexual harassment after dinner party where CEO spilled wine on her blouse, tried to help clean up and tells Cooper it would be okay if she took her shirt off. Cooper quit without complaining. Summary judgment for Albacore affirmed because Cooper quit without complaining. Summary judgment for CEO reversed because MHRA language provides for individual supervisor liability.

McBryde v. Ritenour School District, 207 S.W.3d 162 (Mo.App. E.D. 2006).
McBryde, teacher and assistant basketball coach, sues for nonrenewal of coaching contract based on race discrimination under the MHRA and prevails at trial. Ritenour appeals trial court’s refusal to submit jury instructions. Court affirms “contributing factor” instruction and rejects “motivating factor” instruction. Court affirms refusal of business judgment instruction and refusal of same decision instruction.

Brady v. Curators of University of Missouri, 213 S.W.3d 101 (Mo.App. E.D. 2007).
Baseball coach sues for age discrimination and retaliation. Brady prevails and is awarded punitive damages. University appeals award of punitive damages against a public entity. Punitive damages affirmed.

EEOC v. Dial Corp., 469 F.3d 735 (8th Cir. 2006).
Plaintiff works in meat canning operation requiring lifting 35 pounds 30 to 60 inches with 1.25 lifts per minute. Dial devises a test requiring lifting 35 pounds 30 to 60 inches with 6 lifts per minute. 46% of the females failed the test as opposed to 15% prior to the test. EEOC sues and prevails alleging test has disparate impact on women. Dial appeals and loses because the test is not sufficiently job related and is more difficult than the actual job.

Hayes v. Show Me Believers, 192 S.W.3d 706 (Mo. banc 2006).
Hayes was injured at a prior employer, hired and then fired by a new employer. He sued the new employer claiming they fired him because of workers’ compensation claim filed against prior employer. Trial court dismissed. Supreme Court reinstated because it is illegal to discriminate based on claim against another employer.

Clark v. Johanns, 460 F.3d 1064 (8th Cir. 2006).
Supervisor sexually harassed female worker. Male coworker protested. Summary judgment affirmed because Title VII retaliation claim requires plaintiff to personally engage in the protected activity.

Jennings v. University of North Carolina, 482 F.3d 686 (4th Cir. (N.C.) 2007).
Fourth Circuit Court of Appeals took into account male university soccer coach’s reputation as most successful women’s soccer coach in U.S. college history and the age disparity between the coach and his players in finding that persistent sex oriented discussions in team and private sessions and inquiries about team member’s sex lives could constitute sexual harassment in violation of Title IX.

Edwards v. Gerstein, 2006 WL 3770819 (Mo.App. W.D. 2006).
Transferred to Missouri Supreme Court to determine State Board of Chiropractics Examiners quasi judicial immunity from suit for instituting proceedings and compares and contrasts quasi judicial immunity and official immunity (discretionary actions).

Ayers v. Sylvia Thompson Residence Center, Division of Employment Security, 211 S.W.3d 195 (Mo.App. W.D. 2007).
Employer’s policy that failure to show up or call in will be deemed job abandonment and voluntary termination was enforceable and sufficient to bar unemployment Compensation claim. Employee told supervisor he would not be at work because of a suspended license but did not call on the next two days.

Daoukas v. City of St. Louis, 2007 WL 655770 (Mo.App. E.D. 2007).
City of St. Louis contracted electrical work at Lambert Field. City worker negligently failed to disable an electrical circuit causing injury to employees of contractor. City granted summary judgment based on sovereign immunity. Four million dollar jury verdict returned against City employee and others. Eastern District held that City was liable under respondeat superior doctrine without fault of the City. See also Davis v. Lambert-St. Louis Intern. Airport, 193 S.W.3d 760 (Mo. 2006).

Jamison v. State, Dept. of Social Services, Div. of Family Services, 218 S.W.3d 399 (Mo. 2007).
Because placement on registry denies ability to work in some contexts, due process requires that before a person is placed on registry the person must have notice of charges, an opportunity to explain and is entitled to a decision by preponderance of the evidence. Since relevant statutes provide post-placement review de novo in circuit court, other due process protections are not required.

State ex rel., Missouri State Bd. of Pharmacy v. Administrative Hearing Com’n, 220 S.W.3d (Mo.App. W.D. 2007).
In dicta the Western District Court of Appeals held that right to close personnel records under Missouri Sunshine Law did not close the records in the absence of an affirmative act closing the records. Further, order of the state licensing agency, made after submission of request for personnel record, to close personnel records of one of its employee investigators came too late to be effective under the Sunshine Law.

Philip Morris USA v. Williams, 127 S.Ct. 1057 (2007).
The United States Supreme Court held that $79.5 million punitive damage award against tobacco company violated due process because it included damages awarded because of harm to non-parties. Jurors may consider acts to non-parties when evaluating the reprehensibility of the conduct but may not include such damages when determinating a punitive award amount.

Maune ex rel. Maune v. City of Rolla, 203 S.W.3d 802 (Mo.App. S.D. 2006).
Sovereign immunity is not an affirmative defense. Plaintiff must plead and prove waiver of sovereign immunity as part of his case in chief.

Robinson v. St. Louis Bd. of Police Com’rs, 212 S.W.3d 165 (Mo.App. E.D. 2006).
Statutory damage cap (523.610 RSMo.) is determined by reference to date of verdict rather than date of injury.

State ex rel. Abdullah v. Roldan, 207 S.W.3d 642 (Mo.App. W.D. 2006).
Trial court loses jurisdiction over judgment 30 days after issuance even if judgment says the trial court retains jurisdiction.

Rush v. Senior Citizens Nursing Home Dist. of Ray County, 212 S.W.3d 155 (Mo.App. W.D. 2006).
Following physician orders in a nursing home context is a ministerial task. District employees were not entitled to official immunity on claim of failure to follow physician orders even if other duties, not at issue, were not ministerial.

Senger v. City of Aberdeen, S.D., 466 F.3d 670 (8th Cir. (S.D.) 2006).
Firefighters were entitled to overtime pay under Fair Labor Standards Act even if another employee worked in their place pursuant to policy allowing such substitution but providing for pay to non-working employee at straight time rather than overtime.

Brehe v. Missouri Dept. of Elementary & Secondary Educ., 213 S.W.3d 720 (Mo.App. W.D. 2007).
Endangering a child in the second degree is not, per se, a crime of moral turpitude for purposes of disciplining a teaching license. Since the Board failed to focus on the conduct underlying the conviction, it failed to prove that the crime was a crime of moral turpitude.

Lewis v. St. Cloud State University, 467 F.3d 1133 (8th Cir. (Minn.) 2006).
Eighth Circuit held that replacement by someone 2.5 years younger fails to establish prima facie case under ADEA. Plaintiff must demonstrate replacement by someone substantially younger.

Amaram v. Virginia State University, 476 F.Supp.2d 535 (E.D. Va. 2007).
Even claims for breach of contract based on unlawful race discrimination against state university are barred by Eleventh Amendment immunity and cannot be asserted in federal court.

FIRST AMENDMENT

Garcetti et al. v. Ceballos, 126 S.Ct. 1951 (2006).
Calendar deputy district attorney for Los Angeles County had supervisor responsibilities. District attorney reviewed a pending criminal matter at the request of a defense attorney. He then wrote a memo stating the search warrant application had serious misrepresentations and recommended the criminal case be dismissed. Plaintiff was asked to soften his memorandum. He later turned over the memorandum during discovery in the criminal case. He was told that if he testified that he believed there were intentional fabrications in the application, he would be fired. He did not testify as to his conclusions. After the motion hearing, plaintiff was passed over for promotion and transferred to a less prestigious position. Plaintiff filed suit under §1983 alleging retaliation for exercise of his First Amendment rights. The United States Supreme Court held that statements made by public employees pursuant to their official duties do not qualify for first amendment protections.

Bradley v. James, 479 F.3d 536 (8th Cir. (Ark.) 2007).
University police officer’s statements alleging chief was intoxicated and disrupted investigation were not protected by the First Amendment because officer was speaking pursuant to his official duties while cooperating with an investigation rather than speaking as a citizen on a matter of public concern.

McGee v. Public Water Supply, Dist. #2 of Jefferson County, Mo., 471 F.3d 918 (8th Cir. (Mo.) 2006).
Manager of county water supply district met with board members to inspect a septic tank installation and asserted that raw sewage was continuing to contaminate the area because the tank was improperly installed. Board members approved the tank installation. Manager threatened to bulldoze the area to prevent contamination. Two months later testing showed no contamination in the area. In a later incident, manager made allegations regarding asbestos danger and erroneously maintained that state testing was required. Board eliminated manager’s position. Summary judgment granted against manager’s claim of free speech violation because the speech at issue related to the duties of the manager rather than to a matter of public concern and manager was speaking as an employee rather than a private citizen.

Piggee v. Carl Sandburg College, 464 F.3d 667 (7th Cir. (Ill.) 2006).
Public college could prohibit part-time cosmetology instructor from asserting her religious beliefs regarding the sinfulness of homosexuality while serving as an instructor. Distribution of religious pamphlets could be prohibited because it did not adhere to the subject matter of the course.

UNEMPLOYMENT COMPENSATION - DRUG TESTING

Gaylord v. Wal-Mart Associates, Inc., — S.W.3d —, 2006 WL 1675334 (Mo.App. W.D. 2006).
Employer had burden of proving compliance with statute requiring notice for drug policy violation. Even if employer’s policy had satisfied statutory requirements, employee had right to benefits because he was fired before being asked to take drug test.

Christensen v. American Food & Vending Services, Inc., 191 S.W.3d 88 (Mo.App. E.D. 2006).
Employee was entitled to unemployment compensation even though he tested positive for drugs because company policy did not state, as required by §288.045.4 RSMo., that a “positive test result shall be deemed a misconduct and may result in suspension or termination of employment.”

WORKERS’ COMPENSATION

Garza v. Valley Crest Landscape Maintenance, Inc., 2007 WL 655458 (Mo.App. E.D. 2007).
Worker’s allegations against coworkers stated claims for negligence, but not the “purposeful, affirmatively dangerous conduct” needed to overcome the exclusivity of the workers’ compensation remedy.

Burns v. Smith, 214 S.W.3d 335 (Mo. 2007).
Supervisor welded a patch over a pressurized tank on truck and told worker to drive “until it blows.” Ample evidence showed that such conduct was an affirmative negligent act that created a hazard beyond those ordinarily faced on the job. “[T]he element of reasonableness is implicit in determining the presence or absence of an affirmatively negligent act.” Workers’ Compensation was not the exclusive remedy and the trial court correctly denied a motion to dismiss.

Brown v. Kone, Inc., 212 S.W.3d 196 (Mo.App. W.D. 2007).
Plaintiff was hurt while working for contractor, who contracted to do usual work of defendant on defendant’s premises. Therefore, plaintiff was defendant’s statutory employee and was barred from filing a civil action in circuit court for damages.

Lawson v. Ford Motor Co., 217 S.W.3d 345 (Mo.App. E.D. 2007).
2005 amendments to Workers’ Compensation law raising claimant’s burden to show “substantial factor” do not apply retroactively.

Harris v. Westin Management Co. East, 2007 WL 581689 (Mo.App. E.D. 2007).
Court of Appeals held that Workers’ Compensation was exclusive remedy for worker on his way to work who was injured by a coworker. Transferred to Missouri Supreme Court to determine whether a court has authority to determine its own jurisdiction when Workers’ Compensation is advanced as the exclusive remedy.

PRIVATE PARTIES AS STATE ACTORS

Cohane v. National Collegiate Athletic Ass’n ex rel. Brand, 215 Fed.Appx. 13 (2nd Cir. N.Y. 2007).
State university basketball coach sued NCAA for civil rights violation in forcing his resignation. Court of appeals held that the NCAA could be a state actor when conducting an investigation of a state school. Summary judgment in district court, holding that plaintiff could prove no set of facts which would establish state action, reversed.

Wickersham v. City of Columbia, 481 F.3d 591 (8th Cir. (Mo.) 2007).
City of Columbia turned over exclusive control and use of airport to not-for-profit corporation for the purpose of staging a Memorial Day weekend air show. Private corporation limited expressive activities on the premises during the air show such as soliciting and political campaigning. President of private corporation made final determination of whether conduct violated restrictions. Plaintiff was arrested for first degree trespass after he refused to stop collecting signatures at the event inside the restricted tarmac area. Plaintiff sued City and private corporation under 42 USC §1983 in federal court alleging First Amendment violation. The Eighth Circuit determined that because of the degree of participation between the private corporation and the City in enforcement of restrictions, the private corporation could be deemed a state actor for §1983 purposes. Injunction granted.

COLLECTIVE BARGAINING

Independence-Nat. Educ. Ass’n v. Independence School Dist., 2007 WL 1532737 (Mo. 2007).
Reversing 60 years of precedent, the Missouri Supreme Court declared that Missouri citizens have a state constitutional right to bargain collectively with private and public employers. Public employers are not required to reach an agreement with the employees and still have the power to reject all proposals and to prescribe wages and working conditions. Public employees still cannot strike. If public employees reach an agreement with a public employer, the agreement is legally enforceable and will be treated as a contract. Public employers may not unilaterally revoke or change such contracts.

Service Employees Intern. Union Local 2000 v. State of Missouri, 214 S.W.3d 368 (Mo.App. W.D. 2007).
Workers who prove denial of cost of living increase in retaliation for exercising their constitutional and statutory rights to assemble and organize establish that they were illegally retaliated against for union activities.

Atkins v. McPhetridge, 213 S.W.3d 116 (Mo.App. S.D. 2006).
Court has no jurisdiction to review union disciplinary fine.

HELPFUL PUBLICATIONS

Section 408.040 RSMo. was amended two years ago to add additional requirements to prejudgment interest letters. See 408.040.2(1)-(4).

Rois v. H.C. Sharp Co., 203 S.W.3d 761 (Mo.App. E.D. 2006).
Award of prejudgment interest is mandatory, not discretionary. Award of interest should be made once plaintiff shows ascertainable damages.

Section 290.145 RSMo. prohibits employers from discriminating against employees for off hours, off premises, lawful alcohol and tobacco use. Religious groups and not-for-profit organizations promoting healthcare are exempt.

Court challenge by cities to new Missouri Minimum Wage Law. Several cities around the State of Missouri have filed suit to establish that Proposition B passed last year by Missouri voters does not require payment of overtime to municipal emergency services workers on the same terms as all other workers. The Missouri Labor and Industrial Relations Commission has declared that the federal exceptions for emergency services workers available under the federal wage and hour law are not available under the new Missouri law.

Sovereign Immunity Waiver Caps are adjusted each year. The Department of Insurance does the calculation and notifies the Secretary of State’s office which publishes the new numbers in the Missouri Register in December of each year. The original $300,000 per person limitation is now nearly $350,000.

Effective Hiring from a Legal Perspective, Missouri Municipal Review, August 2006, pages 11 through 15. This article written by Jennifer S. Mirus contains a very useful survey of allowable interview questions, effective uses of job descriptions, pitfalls to avoid in the interview process and whether employers should conduct background checks.

The National Labor Relations Board issued a decision on September 29, 2006, analyzing whether charge nurses qualify as supervisors under the new federal wage and hour regulations. This decision gives insight into how the NLRB interprets and applies the new regulations.

Recommendations for Maintaining Diversity. After two highly publicized U.S. Supreme Court decisions regarding affirmative action in college admission criteria, Michigan voters amended the state constitution to ban affirmative action programs in public employment, education and contracting. The Michigan civil rights commission issued a 74 page report examining the impact of the affirmative action ban on higher education. The report contains several pages of recommendations for maintaining diversity in state government activities and functions. Those struggling to balance minority preferential selection criteria with the narrowing scope of allowable affirmative action policies may find this discussion helpful.

Missouri Library Law: Personnel Law, written by Kent L. Brown, was published recently by the Missouri State Library. The thirty-plus page booklet outlines state personnel law applicable to the different types of public libraries in the State of Missouri and surveys various other aspects of public library governance. The publication is in outline form with references to statutory authority and is intended as a ready reference for public library directors and board members.