2008 UNE J Labor & Employment Law Section June 2008 Newsletter A PUBLICATION OF THE BOSTON BAR ASSOCIATION LABOR & EMPLOYMENT LAW SECTION JUNE 2008 1 Section Co-Chairs’ Corner From the Editors: As we wrap up our year, the editors are Inside this Issue delighted to announce a new feature, Judicial Update created by Nina Kimball and Beth Page 3 Hennessy of Kimball Brousseau LLP – the Labor & Employment Section’s Legislation Update fi rst ever Crossword Puzzle. We welcome Page 9 feedback and entries into our new puzzle category. Looking ahead, please Save Agency Update the Date for the Section’s kick off event, Page 10 the Open House, which will take place on Wednesday, September 17, at 5:00 Brown Bag Lunch Update at the BBA. Finally, the new Steering Page 11 Committee List is included at the end of the Newsletter. Labor & Employment Crossword Puzzle Page 12 Have a great summer, and see you all in the Fall. Section Leadership Page 14 -- Newsletter editors Nina Kimball and Chris Powell Crossword Puzzle Answer Key Page 16 Special BBA Events BBA Orchestra Concert Wednesday, July 16, 2008 - 7:30pm - 9:00pm Faneuil Hall MarketPlace Great Hall (2nd fl oor) - Boston, MA For more information please contact Dorothy Linsner at (508) 656-1900 x273, or [email protected] Save the Date: Annual Meeting Thursday, September 11, 2008 - 11:00am - 2:00pm Seaport Hotel - Boston, MA 2 JUNE 2008 Judicial Update Christopher Powell and Robin Horton Ropes & Gray LLP Supreme Court Decisions: complaint. The fact that the ADEA includes an express provision prohibiting such retaliation against private CBOCS West, Inc. v. Humphries, No. 06-1431 (May sector employees (§ 623(d)), but no similar provision 27, 2008). for federal employees, is not dispositive because the The Supreme Court affi rmed the Seventh Circuit’s provisions were not enacted simultaneously and the ruling that 42 U.S.C. § 1981 encompasses claims federal sector provision was modeled after the federal of retaliation. Humphries, a black former assistant sector discrimination ban of the Civil Rights Act of 1964 restaurant manager, alleged that his employer (42 U.S.C. § 2000e), not after the ADEA’s private sector dismissed him because of racial discrimination and provision. Further, the Court held that it is reasonable because he complained that another assistant manager to interpret Congress’s prohibition of age discrimination had dismissed another black employee based on racial similarly to its prohibition of sex discrimination in Title discrimination. The Seventh Circuit upheld the District IX (20 U.S.C. § 1681(a)), enacted two years earlier. In Court’s rejection of Humphries’s additional Title VII, 42 relevant comparison, Title VII of the Civil Rights Act U.S.C. § 2000e discrimination claim and remanded for federal sector provision incorporates private sector trial the § 1981 retaliation claim. Defendant employer provisions but omits a provision prohibiting retaliation CBOCS sought certiorari on the question of whether in the private sector. §1981 encompassed a claim of retaliation. Enquist v. Oregon Department of Agriculture, No. 07- The Supreme Court held that considerations of stare 474 (June 9, 2008). decisis strongly supported adherence to the many In a 6-3 decision, the Supreme Court affi rmed the precedents where the Court interpreted §§1981 9th Circuit’s decision that a public-sector employee and 1982 similarly and held that § 1981 covered cannot bring a “class of one” equal protection claim to retaliation against Humphries that resulted from his challenge her layoff as unconstitutional on the basis complaint about racial discrimination against another that it was arbitrary and capricious. The plaintiff, an employee, even though the statutory language does employee of the Oregon Department of Agriculture, not expressly cover retaliation that results from helping brought a claim under the Equal Protection Clause of another individual facing discrimination. The Court the Fourteenth Amendment claiming that her layoff found that § 1981 and § 1982 are “sister statutes,” was a violation of equal protection, not because she that the Civil Rights Act of 1991 defi ned § 1981 with was a member of a protected class (such as race, knowledge of the Supreme Court’s holding that § sex or national origin), but on the grounds that it was 1982 covers retaliation for protesting discrimination made for “arbitrary, vindictive, and malicious reasons.” against another person, and that § 1981 expressly Recognizing that there is a crucial constitutional covers post-contract-formation conduct, which has difference when the government acts as employer been interpreted by other courts to cover claims of rather than as a regulator, and that the government as retaliation. employer has far broader powers than the government as sovereign, the Court held that the class-of-one Gomez-Perez v. Potter, No. 06-1321 (May 27, 2008). theory of equal protection did not apply in the public Overruling the First Circuit decision, the Supreme employment context. The Court also noted that public Court found that the federal sector provision of the sector employees have other protections against Age Discrimination in Employment Act, 29 U.S.C. arbitrary employment actions. § 633a(a), prohibits retaliation against a federal employee who is a victim of retaliation as a result of Federal Express Corp. v. Holowecki, 128 S. Ct. 1147 fi ling a complaint of age discrimination, upholding a (Feb. 27, 2008). U.S. Postal Service employee’s claim that she faced In a 7-2 decision, raising the question of what retaliation from a supervisor for fi ling her administrative constitutes a “charge” as the ADEA uses that term age discrimination complaint. for the purposes of fi ling a charge with the EEOC, the Supreme Court agreed with the EEOC’s position in The Court found that the statutory language of the the case, ruling that “[i]n addition to the information federal sector provision includes retaliation based required by the regulations, i.e., an allegation and the on the fi ling of an administrative age discrimination name of the charged party, if a fi ling is to be deemed a JUNE 2008 3 Judicial Update Christopher Powell and Robin Horton charge it must be reasonably construed as a request At bench trial, the District Court (D. Mass.) found for the agency to take remedial action to protect the that DeCaire established that the defendant did employee’s rights or otherwise settle a dispute between discriminate against her and treat her adversely the employer and the employee.” The Court rejected after she complained of discrimination. However, the the employer’s position that to constitute a charge, the court held that the discrimination was based on a EEOC must also have acted on the charging party’s perception of disloyalty, not gender bias or retaliation. request, as the Court refused to adopt such a condition The court found that the defendant had produced precedent to the fi ling of a lawsuit. suffi cient defenses to rebut the presumption of gender discrimination and held for the defendant on both the Nina Kimball contributed to the Supreme Court write gender discrimination and retaliation claims. up. The First Circuit vacated the District Court’s decision 1st Circuit Decisions: and remanded the case. The court noted that the District Court had raised a mixed motive analysis Torrech-Hernandez v. GE, 519 F.3d 41 (1st Cir. Mar. sua sponte and held that if the employer in a gender 7, 2008). discrimination suit has mixed motives, it only restricts The First Circuit affi rmed the District Court’s award of the plaintiff’s remedies. The court further found that summary judgment to the employer on an employee’s there was suffi cient evidence to support a gender ADEA claim. Plaintiff plant manager Hernandez alleged discrimination claim and that the District Court’s that his employer violated the Age Discrimination in conclusion that there was no retaliation was based on Employment Act, 29 U.S.C. § 621 et seq., by fi ring or, errors of law: it was not necessary that the employer alternatively, constructively discharging him from his be motivated by gender bias in engaging in retaliation, position because of his age in an effort to replace older only that the employer was acting in response to the workers. The District Court (D.P.R.) granted defendant plaintiff’s fi ling of an EEO complaint. employer GE’s motion for summary judgment on the ADEA claim. (Hernandez also made state law claims Five Star Transp., Inc. v. NLRB, 522 F.3d 46 (1st Cir. which were dismissed without prejudice.) Mar. 31, 2008). The First Circuit affi rmed the National Labor Relations The First Circuit affi rmed the grant of summary Board’s decision that unionized bus drivers who judgment to GE on the grounds that Hernandez had wrote letters intended to dissuade a district to avoid clearly and voluntarily resigned, that no jury could awarding a contract to another bus company engaged reasonably fi nd that he was discharged, and that there in conducted protected by the National Labor Relations was no evidence that GE intended to replace older Act. workers. The court noted that Hernandez submitted an affi davit which contradicted his testimony and that Encouraged by their union’s vice-president, school his statements were conclusory and self-serving. bus drivers working for a private bus company under contract with the Belchertown School District wrote DeCaire v. Mukasey, No. 07-1539 (1st Cir. Mar. 11, fi fteen letters to the district with the goal of dissuading 2008). it from awarding a successor contract to another bus The First Circuit vacated and remanded an award of company, Five Star Transportation, Inc., because of its summary judgment against a Deputy U.S. Marshall safety reputation and what they saw as an unreasonably in suit for gender discrimination and retaliation.