A manager for an automobile repair business, who referred to respiratory masks as a “KKK hood,” and asked a Black employee if he were offended by the name and whether he wanted to try it on, was lawfully terminated under the terms of an employment agreement, a Florida District Court of Appeal ruled. In so ruling, the appeals court reversed a trial court’s award of damages to the employee for improper termination. Contrary to the trial court, the appeals court determined that the employee’s intent was irrelevant since he was also discharged for his conduct. Accordingly, the employer properly exercised its right to terminate the employee under its harassment policy (Master Collision Repair, Inc. dba Gerber Collision v. Waller, November 3, 2021, Roberts, C.).

“KKK hood” reference. The employer is in the automotive collision repair business. It hired the employee as a market manager responsible for the management of several locations. On March 7, 2018, he was in one of the employer’s stores to conduct fit testing for respiratory masks certain employees had to wear when performing tasks like sanding and painting. While there, the employee repeatedly referred to the respiratory mask as a “KKK hood.” He then asked a Black employee, who worked in the front office and was not part of the fit test group, if he would be offended if the mask was referred to as a “KKK hood” and if he wanted to try it on.

Senior management and human resources were made aware of complaints about the employee’s behavior. HR immediately began an investigation and the store’s general manager confirmed that the employee had asked other employees to put on the “KKK hood.” The employee himself admitted referring to the mask as a “KKK hood” and admitted that he asked the Black employee to try it on, but claimed he was joking. A few days later, the Black employee tendered a resignation letter detailing the employee’s conduct and the distress it had caused him.

After determining that the complaints against the employee were substantiated, the employer notified him that he was terminated for cause under his employment agreement.

Breach of contract claim. The employee sued the employer for breach of contract, arguing he was improperly terminated because he had not received written notice and a 30-day cure period under the terms of the employment agreement. Following a bench trial, the trial court entered judgment in favor of the employee and awarded him severance pay and health benefits for a six-month period. This appeal followed.

The appeals court concluded that the trial court erred in finding the employer improperly terminated the employee without first providing him notice and an opportunity to cure. The employment agreement plainly defined “cause” to mean willful failure and/or gross negligence in the performance of duties or the material breach of the terms and conditions of the agreement. Clearly, the employment agreement provided two separate avenues for the employer to terminate an employee for “cause” based upon a violation of the terms and conditions of the employment agreement. The second provision gave the employer leeway to terminate the employee immediately with written notice of the violation of the terms and conditions of the employment agreement without providing an opportunity to cure.

Under the agreement, the employee was responsible for performing his duties in accordance with employer policies, including the harassment policy contained in the employee handbook. Thus, the trial court erred in concluding that the employer failed to properly terminate the employee.

Employee intent. Similarly, the appeals court concluded that the trial court erred in finding that the employer did not conduct a good faith investigation or assess the ability to cure before terminating the employee. The trial court found the employer failed to investigate the employee’s intent, and without intent, his use of the term “KKK hood” might not be racial harassment. This was error. Rather, the record was clear that the employee was not terminated for words alone, but also for his conduct—he invited a Black employee to try on the “KKK” hood. At any rate, the employee’s intent was irrelevant to the employer’s determination that his conduct constituted harassment as defined under the employer’s harassment policy.

Accordingly, the judgment of the trial court was reversed.

The Biden Administration is asking the Fifth Circuit to slow down, in opposition to the temporary stay that the appeals court issued on November 6, halting OSHA’s interim rule establishing an emergency temporary standard (ETS) requiring either COVID-19 vaccination or weekly testing and mask wearing for private employers with at least 100 employees (see Businesses, five states obtain temporary stay of Biden Administration’s private employer vaccine mandate, November 8, 2021).

In a November 8 letter to the Clerk of Court for the Fifth Circuit, the Justice Department apprised the court that a dozen petitions to review the same ETS have been filed in the Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits. “The United States expects the multi-circuit lottery to take place on or about November 16, after which all petitions for review will be consolidated in one court of appeals responsible for deciding these petitions and considering or reconsidering any stay orders,” the DOJ said.

Extraordinary circumstances. As the federal government framed it in its opposition to the petitioner’s emergency stay motion, OSHA was faced with an extraordinary pandemic and a serious threat to employees at the time it issued the ETS “to address the grave dangers posed by COVID-19 in the workplace.” The ETS gives employers the option of requiring vaccination or offering their employees the option to mask and test, the Biden Administration pointed out, also noting that the ETS reflects OSHA’s “expert judgment that these measures are necessary to mitigate COVID transmission throughout America’s workplaces.”

Why is emergency relief necessary? In its opposition, the government questions why the emergency relief sought by the petitioners is necessary. Most of the harms that the petitioners allege are purportedly at least one month off, and many harms relate to a testing requirement that is not effective until January 2022.

The petitioners assert little prospect of harm until December 7, which is 28 days prior to the January 4, 2022 compliance date for the ETS, the government observed. Thus, there is no need to address the petitioners’ stay motions now. The appeals court thus should lift its administrative stay and allow the matter to proceed under the process that Congress set forth for judicial review of OSHA standards, according to the Administration.

Multidistrict litigation process. That process contemplates that litigation over the ETS will soon be consolidated in one federal court of appeals, the government noted. The Judicial Panel on Multidistrict Litigation will “random[ly] designate” one federal circuit from among those where petitions were filed within 10 days of the ETS’s issuance. All other courts will be required to transfer proceedings to that court. That process is expected to occur around November 16, which is 21 days before the December 7 date that the petitioners allege is the earliest date that any employee could be required to receive a vaccine, and 51 days before employees would be required to start testing.

Further, the federal court chosen to adjudicate the ETS-related matters will have enough time to rule on any preliminary motions, the opposition filing states. “Because ‘considerations of comity’ require ‘courts of coordinate jurisdiction and equal rank’ to ‘avoid the waste of duplication’ and ‘avoid rulings which may trench upon the authority of sister courts,’” the Fifth Circuit should decline to act in this emergency posture, the government argues.

Not likely to succeed on the merits. The government also contends that the petitioners are not likely to succeed on the merits because their arguments are foreclosed by precedent, inconsistent with the statutory text, and contrary to the considerable evidence that OSHA analyzed and discussed when issuing the Standard.

The petitioners have also allegedly failed to show that their claimed injuries outweigh the harm of staying an ETS that will “save thousands of lives and prevent hundreds of thousands of hospitalizations.” According to OSHA’s detailed analysis of the impact of the ETS, a stay would likely cost dozens or even hundreds of lives per day. On the other hand, the injuries asserted by the petitioners “are speculative and remote and do not outweigh the interest in protecting employees from a dangerous virus while this case proceeds,” the Administration argues.

In a brief order, the Fifth Circuit Court of Appeals has entered a temporary stay of OSHA’s November 5 interim final rule establishing an emergency temporary standard (ETS) requiring that private employers with at least 100 employees adopt a plan requiring that all employees be vaccinated for COVID-19, or instead undergo at least weekly testing and wear a face covering. Citing “cause to believe there are grave statutory and constitutional issues” with the Biden Administration’s vaccine mandate, the court stayed the ETS pending further action.

The order comes in response to a November 5 motion to stay the ETS that was filed by a group of businesses and the states of Louisiana, Mississippi, South Carolina, Texas, and Utah.

The court put the case on a fast tract, ordering the federal government to respond to the petitioners’ motion for a permanent injunction by 5:00 PM on November 8. The petitioners must file any reply by 5:00 PM on November 9.

ETS exceeds legal authority. The petitioners contend with the ETS, the Biden Administration is trying “to leverage the COVID-19 pandemic into a justification to reconfigure massive sectors of the American economy.” The ETS, however, runs afoul of the U.S. Constitution, the limits of the Administration’s statutory authority, and the principles of administrative law, as the petitioners see it.

OSHA’s limited authority. According to the petitioners, OSHA lacks the authority to issue the ETS because it is an occupational safety agency with limited jurisdiction that is charged with protecting workers from exposure to dangerous workplace substances like asbestos. OSHA is not a public health agency with wide-ranging authority to address communicable diseases through regulation, the petitioners said. If Congress were to delegate this kind of extraordinary authority to an administrative body, it would do so very explicitly. “But Congress, which lacks a general police power, has never mandated mass vaccination,” the motion for temporary stay argues.

Among other things, the petitioners argue that even if OSHA had authority to regulate the spread of communicable diseases, the measures it has employed with its ETS are unlawful. An ETS under the OSH Act, 29 U.S.C. Section 655(c), doubles as a “proposed rule” for a traditional standard under Section 655(b), and thus must be consistent with the substantive limitations on standards under Section 655(b). The petitioners assert that Section 655(b)(7) limits the substantive measures that OSHA may prescribe when issuing a standard, to:

However, none of these provisions confers on OSHA the power to require any form of medical treatment, much less to mandate vaccination, the petitioners argue.

Administrative law principles. Turning to “fundamental administrative law principles,” the petitioners contend that President Biden violated such principles because he wanted to increase vaccinations and ordered OSHA to create a novel “work-around” of federal law. Here, the petitioners rely in part on a statement made by White House Chief of Staff Ron Klain. OSHA has also purportedly reversed course on its previously stated positions that (1) vaccine mandates are bad policy and less effective than voluntary vaccination, and (2) the agency lacks authority to issue an ETS regulating entire classes of infectious diseases on an emergency basis.

Further, the ETS also fails because of its arbitrary and capricious treatment of several relevant decisional factors, according to the petitioners’ motion.

Balance of harms. As to the balance of harms, the ETS will inflict irreparable fiscal and other harm to the petitioners as they await the Fifth Circuit’s consideration of their petition to review the emergency standard, the petitioners argue. On the other hand, the federal government allegedly will suffer no harm from maintaining the status quo, which they purportedly admitted only months ago was the only lawful state of affairs.

The petitioners thus asked the appeals court to stay the ETS pending adjudication of their petition for review and toll all ETS compliance deadlines.

A former Charter Communications employee failed to convince the Fifth Circuit to overturn a district court ruling compelling him to arbitrate his employment discrimination lawsuit and dismissing his claims, since the employer demonstrated that he both received notice of and accepted the modification to his employment contract requiring him to arbitrate employment-related disputes. The email advising him of the new dispute resolution program “conspicuously warned” that employees would be deemed to have accepted the mandatory arbitration program unless they opted out within 30 days and also provided directions on how to do so, yet he failed to opt out and continued working for the company for over a year until he was terminated (Gezu v. Charter Communications, November 2, 2021, Wilson, C.).

Compelled to arbitrate. The employee worked for Charter from 2007 until his termination in 2019. He claimed that during his employment, he was subjected to race and national origin discrimination, which the company knew about but failed to address. After he was fired for purportedly pretextual reasons, he filed this lawsuit asserting Title VII and Sec. 1981 claims.

Charter moved to compel arbitration and to dismiss his lawsuit, contending that his claim fell under a mandatory arbitration agreement that went into effect more than a year before the employee’s termination. A federal magistrate judge subsequently issued a recommendation in favor of granting the motion, which the district subsequently adopted.

The arbitration agreement. On October 6, 2017, Charter sent an email to all active, non-union employees announcing a new employment-based legal dispute resolution program it called “Solution Channel.” In particular, the email stated: “In the unlikely event of a dispute not resolved through the normal channels, Charter has launched Solution Channel, a program that allows you and the company to efficiently resolve covered employment-related legal disputes through binding arbitration.” The email continued: “By participating in Solution Channel, you and Charter both waive the right to initiate or participate in court litigation (including class, collective and representative actions) involving a covered claim and/or the right to a jury trial involving any such claim.”

The email also advised employees that “[u]nless you opt out of participating in Solution Channel within the next 30 days, you will be enrolled” and hyperlinked the term “Solution Channel” to the company’s intranet, where additional information on the program and optout instructions were available. The full arbitration agreement was also available on the intranet.

Notice and acceptance. On appeal, the employee argued that it was error to compel him to arbitrate his claims since he never read the October 6 email and therefore did not agree to participate in the mandatory arbitration program. Because he was an at-will employee who was not initially subject to the arbitration agreement, the question was whether there was a valid modification of the terms of his employment. To show that there was, Charter needed to demonstrate that he both received notice of the change and accepted it. The Fifth Circuit concluded that the company met this burden.

Despite the employee’s urging that he never agreed to arbitrate his claims against his employer, the record showed a valid modification to his employment contract. In its October 6 email, Charter provided him with notice of its new dispute resolution program aimed at “efficiently resolv[ing] covered employment-related legal disputes through binding arbitration.” The email stated that by participating, the recipient and the employer “both waive[d] the right to initiate or participate in court litigation . . . involving a covered claim” and that recipients “would be automatically enrolled” in the program “[u]nless you opt out … within the next 30 days.” This language, along with the referenced links to additional information about the program provided in the email, was sufficient to notify the employee unequivocally of the arbitration agreement.

Email and the “mailbox rule.” This valid notice was not frustrated by the employee’s assertion that he did not read the October 16 email. As noted by the district court, the mailbox rule comes into play when, like here, “there is a material question as to whether a document was actually received.” Under the rule, a sworn statement constitutes credible evidence of mailing and creates a presumption of receipt.

Here, Charter submitted declarations from two company officials—its VP of HR technology and its senior director of records management and eDiscovery—which averred that the company sent the October 16 email and that the employee both received and opened it. The district court did not err by considering these declarations and finding that they created the presumption of receipt under the mailbox rule, the Fifth Circuit concluded, noting that several other courts had enforced the very same program’s arbitration obligations in similar situations.

Failure to opt out. The employee also failed to refute evidence that he accepted the modification to his employment contract. The October 6 email not only “conspicuously warned” employees that they would be deemed to have accepted the arbitration program unless they opted out within 30 days, but it also provided directions on how to do so. Nonetheless, the employee did not opt out and continued working for the company for over a year until he was terminated.

Accordingly, because Charter demonstrated that the employee both received and accepted the modification to his employment contract, a valid agreement to arbitrate employment-related disputes existed between the parties. And because he did not assert that his claims were not covered by the agreement, the grant of its motion to compel arbitration was affirmed.

The U.S. Supreme Court denied injunctive relief to health care workers who argued that Maine’s COVID-19 vaccine mandate violated their rights under the Constitution and Title VII because it did not include a religious exemption. Justices Gorsuch, Thomas, and Alito dissented (Does 1-3 v. Mills, October 29, 2021, Breyer, S.).

Vaccination requirement. In August, the state announced that health care workers must be vaccinated against COVID-19 by October 1 (see 10-144 CMR Ch. 264) and later announced that it would begin enforcement on October 29, 2021. The mandate allowed for medical, but not religious, exemptions. The health care workers and a provider filed suit seeking a preliminary injunction against the rule’s enforcement, arguing that their religious beliefs prohibited them from using any product connected in any way with abortion.

The district court denied their request for preliminary injunction and the First Circuit affirmed (see Preliminary injunction prohibiting Maine’s COVID-19 vaccine mandate for healthcare workers denied, October 18, 2021; Mandatory vaccination for healthcare workers was facially neutral, did not single out religious objectors, October 20, 2021).

Dissent. Justices Gorsuch, Thomas, and Alito, dissenting from the Court’s refusal to grant injunctive relief, argued that the “case presents an important constitutional question, a serious error, and an irreparable injury.” They concluded that strict scrutiny applied because (1) “Maine will respect even mere trepidation over vaccination as sufficient, but only so long as it is phrased in medical and not religious terms,” and (2) the state allows those invoking medical reasons to avoid the vaccine mandate on the premise that these individuals can take alternative measures to safeguard their patients and coworkers, but it refuses to allow those invoking religious reasons to do the same thing.

They argued that the First Circuit erred by finding the rule neutral and generally applicable by restating the state’s interests on its behalf, “and doing so at an artificially high level of generality.” Applying strict scrutiny, and assuming a compelling state interest, Maine did not show that its rule represents the least restrictive means available to achieve it. Accordingly, the three dissenting justices would have granted relief.

On October 28, 2021, the EEOC again updated its question-and-answer technical assistance on COVID-19, the ADA, the Rehabilitation Act, and other equal employment opportunity laws, this time to provide a sample form for employees to use when requesting a religious accommodation to an employer vaccine requirement.

Requesting religious accommodation. Earlier this week, on October 25, the EEOC added a new section (L) on Title VII and religious objections to COVID-19 vaccination mandates (see Updated COVID-19 Q&As discuss religious accommodations to vaccination mandates, October 26, 2021). In that section the Commission explained, among other things, that employees are required to tell their employer if they are requesting an exception to a COVID-19 vaccination mandate because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances (religious beliefs). In making such a request, employees are not required to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they do need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.

The same principles apply when employees have a religious conflict with getting a particular vaccine and would like to wait until an alternative version or specific brand of COVID-19 vaccine is available.

The EEOC also suggested the best practice is that employers provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation.

Sample form. The Commission has now added, as an example, its own workplace religious accommodation request form. The EEOC explained that, although its internal forms typically are not made public, the agency has shared it in this latest technical assistant update due to “the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic.”

The form, among other things, asks the requester to answer four inquiries:

Additionally, the form provides sections to explain the decision made in response to the request, as well as information about requesting reconsideration and pursuing administrative and collective bargaining rights, or those enforced by the Merit Systems Protection Board.

An African American truck driver failed to raise genuine issues of material fact that would require the Fifth Circuit to overturn a district court decision granting summary judgment in favor of his former employer on his Title VII race discrimination and FLSA unpaid overtime and retaliation claims. In an unpublished opinion, the Court of Appeals held that the driver provided insufficient evidence that race was a motivating factor in his dismissal, even though his supervisor had made racially insulting remarks. The FLSA overtime claim failed because there was no evidence that the employer miscalculated his compensation. Further, the employer’s piece-rate system was meant to compensate drivers for both productive and nonproductive time and the employee had agreed to it. Finally, the driver’s informal complaints did not qualify as protected activity under the FLSA (Lockhart v. Republic Services Incorporated, October 25, 2021, Wiener, J.).

Calculation of pay. The employee, who is African American, provided waste removal service to Republic’s customers in San Antonio as a roll-off driver. Drivers were paid on a piece-rate basis, also known as “can pay,” which was computed weekly by multiplying the individual driver’s personal “can rate” (determined by that driver’s experience and seniority) by each haul’s “can value” (based on the location of the can, its distance from the landfill, and the difficulty of the haul). Can values were set by Republic and communicated to the drivers on a detailed spreadsheet. At the end of the day, the driver filled out a route sheet, recording the containers he had hauled that day and the values associated with each haul.

The driver believed that he was not being properly compensated for each haul that he completed because Republic classified some hauls as container “swaps,” rather than “dump and returns,” which are compensated at a higher rate because they involve more travel. He believed that he could be more productive if he could decide whether to treat a given haul as a swap or a dump-and-return while he was still in the field.

Infractions and termination. In November 2017, he was terminated under the employer’s four-step progressive disciplinary procedure. First, he was given a verbal warning for recording an incorrect container pay on his route sheets. For the second infraction, he received a written warning for abuse of company equipment, charging him with causing more than $4,000 in damage to his company-owned vehicle by pushing the truck’s “regen button” in excess of forty times. He was suspended as a result of his third infraction for: (1) discussing his personal vehicle with an on-duty mechanic, (2) refusing to wear personal protective equipment as required, and (3) being insubordinate to the shop manager. His fourth infraction, for his entering a landfill through an exit gate in violation of company policy, resulted in termination.

Following his discharge, he sued his former employer alleging that he had been discriminated against on the basis of race, religion, and sex, and retaliated against in violation of Title VII and 42 U.S.C. § 1981. He also made claims for overtime violations and retaliation under the FLSA. The district court granted summary judgment against all of these claims, and the appellate court affirmed.

Title VII violations. Title VII makes it unlawful for an employer to fire or otherwise discriminate against an employee because of race. The court, assuming that the driver had established his prima facie case under the McDonnell Douglas framework and the employer had provided a nondiscriminatory reason for his firing, analyzed the driver’s claim based on whether he had shown the employer’s proffered reason for his termination was pretext for racial discrimination. He did not establish pretext.

First, although the driver characterized the events leading to his termination as “highly contested,” the court noted that three of the four infractions against the driver were based on the reports of third parties. Although there was dispute over whether the on-site supervisor of the landfill facility had given the driver permission to enter the landfill through the exit gate, the court held that this factual dispute alone would not permit a reasonable fact finder to conclude that the employer’s proffered explanation for the termination was pretextual.

Evidence of slurs. Second, although the court found evidence that the driver’s supervisor had made racially insulting slurs referring to him, the court noted that the driver had committed four disciplinary violations that led to his termination. Accordingly, the disturbing racial slurs were insufficient by themselves to create a genuine issue of fact disputing the veracity of the employer’s explanation for the termination and there was no evidence that race had anything to do with the termination.

FLSA overtime violations. For purposes of determining the proper compensation required by FLSA for overtime pay for piece-rate workers such as the driver, the number of hours worked for a workweek must include hours for both productive and nonproductive hours. The court noted that the employer presented evidence that its rules for compensation under its “can system” were meant to pay drivers both for their productive and nonproductive hours.

However, the court saw the underlying issue here as whether the driver and Republic had made an agreement evidencing that they had a “clear and mutual understanding” that the compensation plan was meant to cover both productive and nonproductive time. Based on the evidence presented, the court concluded that the driver had agreed to be compensated under his employer’s plan encompassing both productive and nonproductive hours worked. Accordingly, the court found that there was no evidence from which a reasonable jury could find that the driver did not agree to the employer’s piece rate compensation system, which covered both productive and nonproductive time.

FLSA retaliation. It is unlawful for an employer to terminate an employee for engaging in an activity protected by FLSA. The appeals court noted that although even an informal complaint with the employer may meet this protected activity requirement, such a complaint must “concern some violation of the law” that puts the employer on notice that the employee is making a complaint that could subject the employer to a later claim of retaliation. Here, the court concluded that although the driver raised some objections to Republic’s compensation system for calculating his pay—mostly focusing on Republic’s assignment of “can values”—the driver’s complaints never raised the suggestion that this system was unlawful. Accordingly, the driver did not engage in a protected activity under the FLSA, and the district court’s grant of summary judgment rejecting this claim was appropriate.

A male-to-female transgender police trainee who has been diagnosed with gender dysphoria will proceed to discovery with claims against some, but not all, of the defendants after a federal district court in Illinois granted, in part, their motion to dismiss. Her Section 1983 claims were premised on an alleged violation of her substantive due process right to medical privacy and the defendants’ failure to supervise sheriff’s office personnel and protect her from discrimination and harassment. Specifically, she contends that by outing her as transgender, the defendants essentially revealed her medical history, which included gender confirmation surgery and hormone treatments. Her gender discrimination claim under the Illinois Civil Rights Act also moved forward, as did her indemnification count (Arriaga v. Dart, October 23, 2021, Kendall, V.).

Under the radar. While she was undergoing treatment for gender dysphoria, the employee secured a job as a police officer for the Northeast Regional Commuter Railroad Corporation (Metra) and enrolled in the Cook County Sheriff’s Police Academy. At the time, she alleged, she was “living in stealth,” i.e., she was living as a transitioning person without disclosing that fact publicly. She sought to keep her male-to-female transgender identity and associated medical treatments private.

Her transgender status was disclosed. Nevertheless, when she entered the Academy the defendants disclosed her identity as a transgender woman to Academy administrators and staff, police chiefs in municipal departments, and her superiors and coworkers. The defendants include the Cook County Sheriff, Metra, Cook County, the Metra Police Chief, the Metra Deputy Chief, and four other individuals who hold supervisory roles at the sheriff’s office and police academy.

She also alleged that recruits who went through academy with her disseminated information about her gender identity amongst themselves and to another Metra police officer, although she was not aware of the full extent of those disclosures until later.

Alleged it revealed her history. This disclosure, the employee alleged, effectively revealed her psychiatric condition and her history of procedures. She contended that her feminine voice and appearance could only be achieved through gender confirmation surgery and hormone treatments and such procedures are only available to people who suffer from gender dysphoria. Therefore, she contends, these disclosures were equivalent to revealing her confidential medical history.

And led to inquiries, jokes, and slurs. Moreover, she alleged, the disclosures led to discrimination and harassment by fellow recruits, including taunting, jokes, and inquiries about the procedures and her protected status, both in-person and over group chats. For example, she alleged that her colleagues distributed an older photograph of her as a male prior to transition that had been found on Facebook. A fellow recruit also referred to her by a transphobic slur, she alleged. These actions caused her significant psychological distress.

Alleges no remedial action. She contends that she reported the offensive conduct to the defendants, who took no remedial action and concealed the fact that it failed to discipline any of the offending parties. She claims that these failures perpetrated the ongoing practice of private medical information dissemination and harassment and she alleged that she was mistreated based on her gender until she graduated from the academy in August 2018. She filed suit and after a previous dismissal, filed an amended complaint. The defendants again moved to dismiss and their motions were granted in part and denied in part.

Section 1983 claims. The employee’s claims under Section 1983 originate in the defendants’ disclosure of her transgender status, and her attendant medical history, in violation of her substantive due process right to medical privacy, as well for failure to supervise and protect her from violation of those rights. Metra, the Cook County sheriff, the Metra police chief, and the Metra deputy chief argued that those two counts against them should be dismissed. The employee argued that the Metra police chief and the Cook County Police Academy Director were both final policymakers under state law and were subject to liability.

Metra chief’s policymaking authority, personal involvement. Although in her previous complaint the employee’s claim against the Metra Police Chief was dismissed, this time around she cured the complaint’s deficiencies in that regard. Although the Chief alleged that final policymaking authority rested with Metra’s Executive Director under state law, that law permitted the delegation of policymaking authority and the employee cited sufficient evidence in her complaint to support the claim that such authority was delegated to the Metra Police Chief.

The employee also alleged sufficient personal involvement by the Chief by alleging that he disclosed her medical information, which was private, disclosed without her permission or without a significant motivating government interest, and was equivalent to a medical disclosure given her presentation as female. Such disclosures constituted a violation of the Fourteenth Amendment due process clause.

No prevention and indifference. The employee also detailed how he failed to instate a policy to prevent his subordinate, the Deputy Chief, from discussing her transgender identity with academy officials or to sanction him once he had done so, which she alleged exhibited a deliberate indifference to the known risks of that conduct. Both counts were sustained against Metra, the Chief, and the Deputy Chief. However, that claim as against the Cook County Police Academy director could not proceed, the court concluded, because there was not “factual detail to gird this contested claim.” Both counts were dismissed as to Cook County.

County Sheriff. Regarding the argument that the absence of a policy could not support the employee’s Monell claim against the County Sheriff, the court explained that liability could still attach under certain circumstances regarding a policy omission. “When a municipality is on notice of a pattern of unconstitutional practices,” the court noted, “it may be held liable on the theory that the ‘decision not to train certain employees about their legal duty to avoid violating citizens’ rights” is tantamount to an official policy of condoning constitutional violations.’” According to the employee she complained to the Sheriff, but he exhibited not only deliberate indifference by not responding but also bad faith by attempting to conceal that unresponsiveness. She alleged that her complaint put the municipality on notice of the violations of her due process rights.

Not a single incident. Moreover, the allegations in the employee’s complaint were not limited to a single incident, which the defendants claimed undermined her policy omission claim. Rather, the facts she alleged comprised “continual harassment sufficient to establish an empirical pattern of conduct.” She alleged she was repeatedly outed, taunted based on her transgender status, and called a transphobic slur over a sustained period of time. Thus, she did not need to rely on a single-incident theory of Monell liability, as the defendants had contended.

Was predictable. Also, while the Sheriff argued that the harassment she endured was not a “highly predictable consequence” of his failure to have preventative policies, that argument was not persuasive. “To the contrary,” the court noted, “recent data indicates that over half of transgender persons experience workplace discrimination and the frequency of such discrimination has been highly publicized in recent years,” as the employee had pointed out. Thus, it stood to reason that, regardless of the employee’s status as the first transgender recruit, it was plausible that the Sheriff should have been on notice of the prevalence of such discrimination and should have established policies to forestall it or to respond to it when reported.

Illinois civil rights claims. Regarding the employee’s claim for a violation of the Illinois Civil Rights Act by the defendants, the argument that her claim should fail because she did not offer sufficient evidence of personal animus was misplaced. Discriminatory intent, the court explained, is not a necessary element of discrimination under the ICRA, which is modeled on Title VI. Her description of a hostile work environment, if accepted as true, was sufficient to state a claim.

Because her ICRA claim and federal claims under Section 1983 survived against some of the individual defendants, her indemnification claim against Metra and Cook County also survived.

After the Third Circuit reversed a district court’s grant of summary judgment against the Title VII retaliation claim of a white employee who alleged he was fired after complaining that a colleague had called his biracial grand-niece a “monkey,” the federal district court in Pennsylvania found his claim should go to a jury. The appeals court determined that the employee had engaged in protected activity and district court found fact disputes prohibiting summary judgment on the remaining aspects of his retaliation claim (Kengerski v. County of Allegheny, October 19, 2021, Ranjan, N.).

Called her a “little monkey.” As described in the Third Circuit’s opinion, in 2015, the employee, a captain at a county jail, complained to the warden that a newly promoted superior previously had made a racist comment about his relative, whom he had stated he might be taking care of in the future. Among other things, the superior asked him if his grand-niece was black and when he responded that she was biracial, she stated that the employee “will be that guy in the store with a little monkey on his hip like” another jail employee who has a biracial child. The employee then “asked her not to speak like that about [his] situation” and left the room. He also contended that she sent racially offensive text messages to him.

Fired, sued. His complaint about the major was referred to the county’s law department and seven months after his complaint, he was fired. He contended that the real reason was that he had reported his superior, a major, and caused her to resign three months before his termination. He filed suit and the district court initially granted the employer’s motion for summary judgment, concluding that the employee’s retaliation claim failed as a matter of law because the employee, who is white, could not maintain a claim for Title VII retaliation.

Judgment for employer reversed. The employee appealed and the Third Circuit reversed. “Title VII protects all employees from retaliation when they reasonably believe that behavior at their work violates the statute and they make a good-faith complaint,” the appeals court explained, agreeing with its sister circuits that have held that associational discrimination is well grounded in the text of Title VII. It remanded the case to the district court to consider the sole remaining issues—whether there was a causal connection between his protected activity and termination and whether the employer’s given reason for the latter was legitimate or pretextual.

On remand, the district court concluded that the issues of causation and pretext were “overwhelmed by factual disputes” and require a jury to weigh the evidence and witness credibility. It also concluded that the employee presented sufficient evidence to survive summary judgment.

Causation and pretext. Regarding causation, the court considered, as the appeals court had emphasized, “the circumstances as a whole” and whether the employee showed a causal connection with evidence of intervening antagonism, inconsistent explanations, or other circumstantial evidence supporting an inference of a causal connection. “Causation is a fact-specific and contextual determination,” the court explained, as is pretext. To survive summary judgment on pretext, the employee must show evidence from which a factfinder could either disbelieve the employer’s articulated reasons for its actions or believe that a discriminatory reason was more likely than not a motivating or determinative cause of the action.

The evidence showing both could be the same, the court explained, and in this case, there were multiple factual disputes and credibility determinations to resolve in the overlapping evidence. For example, the court noted, the parties disputed whether the warden and deputy warden ignored, because of animus, the employee’s legitimate complaints and requests following his initial complaint. They also disputed whether he became a target in the workplace because of his protected activity and whether the wardens knew about this but ignored it.

Slow, but then quick to investigate him. The employee also pointed to the fact that while the wardens were slow to investigate any of his complaints, they were quick to investigate him when an accusation was made against him. It was disputed whether they investigated him differently from others by not obtaining a pre-termination report or response from him when he was accused of sexual harassment. There was competing evidence regarding whether he was held to a different standard, including whether the “zero-tolerance policies” were enforced more harshly and strictly on him.

Warden’s credibility in question. Moreover, the court noted, the jury needs to assess the credibility of various witnesses, including the warden. In this regard, the jury could conclude that the warden’s account of his decisionmaking was not credible under the circumstances and timeframe. The court emphasized that this was “not an exhaustive summary of the factual disputes material to the issues of causation and pretext” but reiterated that there were genuine disputes and sufficient evidence for the employee’s claim to survive summary judgment.

The First Circuit has affirmed a district court’s order denying a preliminary injunction to several Maine healthcare workers and a healthcare provider who filed a lawsuit seeking to enjoin the State of Maine from enforcing its emergency vaccination rule. The rule mandates that all state healthcare workers be vaccinated against COVID-19, with the exception of those who are medically exempt from vaccination. The appellants are unvaccinated Maine healthcare workers (and a healthcare provider) who object to vaccination with any of the three available COVID-19 vaccines based on their religious beliefs that prohibit them from using the products. The appeals court rejected their Constitutional Free Exercise Clause, Supremacy Clause, and Title VII arguments, finding that the emergency rule is religiously neutral, and that the state has the authority to grant exemptions based on the underlying circumstances and compelling public interest in preventing the spread of a communicable disease (Does 1-6 v. Mills, October 19, 2021, Lynch, S.).

History of mandatory vaccinations. Maine has mandated that its healthcare workers be vaccinated against certain contagious diseases since 1989, but prior to 2019, state law exempted workers from vaccination in three circumstances: when vaccination was medically inadvisable, contrary to a sincere religious belief, or contrary to a sincere philosophical belief. However, in 2019, the state responded to declining vaccination rates by amending its law to allow for only the medical exemption.

On August 12, 2021, Maine’s Department of Health and Human Services (HHS) and its Center for Disease Control (CDC) issued an emergency rule adding COVID-19 to the list of diseases against which healthcare workers must be vaccinated. Pointing to a 300 percent increase in COVID-19 cases between June 19 and July 23 and the danger of the delta variant, the agencies determined that the rule was necessary because the presence of the highly contagious delta variant in Maine constituted an imminent threat to public health, safety, and welfare.

Claimed religious basis for exemption. The healthcare workers and provider who filed the lawsuit seeking a preliminary injunction against the emergency rule’s enforcement claimed that their objection to the vaccination was based on their religious beliefs, which prohibit them from using any product connected in any way with abortion. They argued that Johnson & Johnson/Janssen used cells ultimately derived from an aborted fetus to produce its vaccine, as did Moderna and Pfizer/BioNTech in researching their vaccines.

Accordingly, their religious beliefs prohibited them from being vaccinated, and to mandate vaccination pursuant to the emergency rule would violate their Free Exercise and Supremacy Clause rights, as well as violate Title VII’s civil rights protections. The district court disagreed, and denied their petition for preliminary injunction (see Preliminary injunction prohibiting Maine’s COVID-19 vaccine mandate for healthcare workers denied , October 18, 2021) and the instant appeal ensued.

Determining neutrality. The appeals court first examined the First Amendment’s Free Exercise Clause (as incorporated against the states by the Fourteenth Amendment) and observed that it protects religious liberty against government interference. When a religiously neutral and generally applicable law incidentally burdens free exercise rights, the law will be sustained against a Constitutional challenge if it is rationally related to a legitimate governmental interest.

When a law is not neutral or generally applicable, however, it may be sustained only if it is narrowly tailored to achieve a compelling governmental interest. Furthermore, to be neutral, a law may not single out religion or religious practices, and a government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature. To be generally applicable, a law may not selectively burden religiously motivated conduct while exempting comparable secularly motivated conduct.

Both neutral and generally applicable. Applying these Free Exercise Clause standards to the Maine emergency rule, the court found the rule to be facially neutral, and that no argument had been developed to the court that the state singled out religious objections to the vaccine because of their religious nature. The state legislature removed both religious and philosophical exemptions from mandatory vaccination requirements, and thereby did not single out religion alone.

The court also found that the rule was generally applicable because it applied equally across the board, not requiring the state government to exercise discretion in evaluating individual requests for exemptions. Nor did it permit secular conduct that undermined the government’s asserted interests in a similar way.

Medical exemption validity. The court concluded that exempting from vaccination only those whose health would be endangered did not undermine Maine’s asserted interests of: (1) ensuring that healthcare workers remain healthy and able to provide the needed care to an overburdened healthcare system; (2) protecting the health of the those in the state most vulnerable to the virus, including those who are vulnerable to it because they cannot be vaccinated for medical reasons; and (3) protecting the health and safety of all Maine residents, patients, and healthcare workers alike.

Based on the foregoing, the appeals court affirmed the district court’s order denying the requested preliminary injunction against the emergency rule.