EMPLOYMENT LAW UPDATES by C. Clayton Gill December 11, 2013 UNITED STATES SUPREME COURT

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1 EMPLOYMENT LAW UPDATES by C. Clayton Gill December 11, 2013 UNITED STATES SUPREME COURT 1. Vance v. Ball State University, 133 S. Ct (June 24, 2013). FACTS: A black female employee filed a racial hostile work environment claim against her employer based upon actions by another white employee who, at times, directed her work. The claimant alleged that the other employee gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her. The claimant further alleged that the other employee blocked claimant on an elevator, and stood there smiling at her. Claimant s problems with the other employee persisted despite the employer s attempt to address the problem. The trial court and lower appellate court determined: (1) the other employee was not claimant s supervisor and, thus, the employer could only be held liable if it was negligent in failing to prevent any unlawful harassment; and (2) the previously mentioned facts failed to prove a racial hostile work environment claim. ISSUE: Was the alleged harasser the claimant s supervisor such that the employer should be strictly liable for any unlawful harassment by the alleged harasser? HOLDING: No. An employee is a supervisor for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. In this case, the alleged harasser only had input in Claimant s day to day assignments, but not the critical decisions on whether to hire, fire, promote, reassign, or change Claimant s employment benefits. SIGNIFICANCE: Under Title VII, if the harassing employee is the victim s co-worker, the employer is liable only if it was negligent in controlling working conditions (e.g., the employer is on notice of unwelcome and severe and pervasive behavior by a co-employee and does nothing to halt such behavior). But, if the harasser is the victim s supervisor and the harassment culminates in a tangible employment action by the supervisor (i.e., a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits ), the employer is strictly liable. Further, even if no tangible employment action is taken, the employer is still strictly liable for any hostile work environment created by a supervisor unless the employer can prove, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Client:

2 The Supreme Court rejected the EEOC s definition of supervisor as anyone having the power to direct the work of another employee. The Court further noted that the Ellerth/Faragher framework is one under which supervisory status can usually be readily determined, generally by written documents and will generally be capable of resolution at summary judgment. The Supreme Court noted that with respect to co-worker harassment, the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent. [T]his approach will not leave employees unprotected against harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways. In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent. The Supreme Court provided further guidance on what is required to prove a negligence claim of harassment by a co-worker. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. 2. University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct (June 24, 2013). FACTS: Claimant was a medical doctor of Middle Eastern descent that was employed as a member of the University s faculty in the internal medicine department and as a staff physician at a University-affiliated hospital. Claimant alleged that he was harassed by his superior because of his religion and ethnic heritage. Claimant complained about the alleged harassment to the Chair of the University s internal medicine department. In 2006, Claimant arranged to continue as a staff physician at the hospital after resigning his position as a faculty member of the University. After doing so, Claimant sent a letter to the University stating he was resigning from his faculty position because of the harassment by his superior. The Chair of the internal medicine department believed that Claimant s resignation letter was inappropriate because of the derogatory comments about the superior, and the Chair made statements that the superior should be publicly exonerated from any allegations of harassment. Upon learning of the hospital s intent to employ Claimant even though he was no longer affiliated with the University, the Chair of the internal medicine department told the hospital that its offer of employment was inconsistent with its affiliation agreement with the University that required that all staff physicians also be members of the University s hospital. The hospital then withdrew its offer of employment to Claimant and Claimant Client:

3 subsequently sued the University for status-based discrimination (race and religion), as well as retaliation. In Claimant s status-based discrimination claim, Claimant alleged that he was constructively discharged because of the hostile work environment created by his superior. Claimant further alleged that the University got the hospital to rescind its offer of employment to Claimant in retaliation for his claims of harassment by his superior. Both the discrimination and retaliation claims were submitted to a jury that returned a verdict in favor of Claimant. The jury awarded Claimant $400,000 in back pay and $3,000,000 in compensatory damages. The trial court subsequently reduced the compensatory damage award to $300,000. The University then appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit determined that there was insufficient evidence to support a constructive discharge claim and reversed that portion of the jury s verdict. However, the Fifth Circuit determined that there was sufficient evidence to support a finding of retaliation. In doing so, the Fifth Circuit held that claimant need only show that retaliation was a motivating factor for the adverse employment and not that retaliation was the but-for cause of the adverse employment action. ISSUE: Did the trial court and Fifth Circuit err in applying the motivating factor standard rather than the but-for causation standard to Claimant s retaliation claim? HOLDING: Yes. Title VII retaliation claims require proof that the unlawful retaliation would not have occurred but for the alleged wrongful actions. SIGNIFICANCE: The Supreme Court rejected the motivating factor standard and instead adopted the harder to prove but-for causation standard. The rule of law for Title VII claims is now settled. The motivating factor causation standard applies to status-based discrimination claims and the but-for causation standard applies to Title VII retaliation claims. Thus, to prove a Title VII status-based discrimination claim, a claimant must prove that the intent to discriminate was one of the employer s motives, even if the employer also had other, lawful motives that were causative in the employer s decision. Once the employee proves discrimination was a motivating factor, the employee is entitled to declaratory relief, attorney s fees and costs, and some form of injunctive relief, regardless of whether the employer can prove that a discriminatory motive was not the but-for cause of the adverse employment action. With respect to status-based discrimination claims, the employer s proof that a discriminatory motive was not the but-for cause of the adverse employment action only saves the employer from having to pay compensatory damages and a reinstatement order, but does not save the employer from declaratory relief, attorney s fees and costs, and some forms of injunctive relief. To prove a Title VII retaliation claim, the claimant must prove that the adverse employment action would not have occurred but for the employer s retaliatory motive Client:

4 The Supreme Court intended to take away the halo effect that was previously given to employees who engaged in a protected activity. In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination, then, when the unrelated employment action comes, the employee could allege that it is retaliation.... Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. Yet there would be a significant risk of that consequence if respondent s position were adopted here. 3. United States v. Windsor, 133 S. Ct (June 26, 2013). The provisions contained in the Defense of Marriage Act ( DOMA ) that exclude samesex relationships from the definition of marriage and spouse for federal law purposes are unconstitutional. Thus, for purposes of federal law (e.g., ERISA and the Internal Revenue Code), same-sex marriages must be treated the same as opposite-sex marriages. The probable result of this ruling is that a same-sex couple that is married in a state that recognizes same-sex marriages must be considered a spouse for employee benefit purposes, regardless of whether they now live in a state that does not recognize same-sex marriages. 4. Genesis HealthCare Corp. v. Symczyk, 133 S. Ct (April 16, 2013). The United States Supreme Court affirmed the use of Rule 68 offers of judgment to defeat class certification in wage claims under the Fair Labor Standards Act (FLSA). By this defense tactic, the employer offers to pay all of the named defendant s claimed unpaid wages, costs and attorney fees to prevent the named employee from certifying a class of other similarly situated employees. FEDERAL NINTH CIRCUIT COURT OF APPEALS 1. Smith v. Clark County School District, F.3d (9th Cir., Aug. 21, 2013). FACTS: Claimant worked for the Clark County School District from 1992 to Claimant first taught elementary school. Then, in 2001, Claimant had a back injury that limited her mobility. In 2004 she took a job with the school district as a literary specialist and received positive job reviews from 2004 to In March 2008, Claimant was told that she would be reassigned to teach kindergarten. Claimant objected, claiming that her back injury prevented her from teaching. In the spring of 2008 Claimant aggravated her back injury and on April 21, 2008, filed a request for FMLA leave submitted with a Client:

5 doctor s note that she was presently incapacitated and could not work at all until released by a doctor. In July of 2008, Claimant sought an extension of her FMLA leave and submitted a statement from her doctor that she was presently incapacitated, would be out of work indefinitely, and could do no work of any kind until released by a doctor. In late August, Claimant applied for disability retirement benefits with the state of Nevada on the basis that she could not perform the duties of her current job as a kindergarten teacher, supported by a doctor certification that she was unable to work due to injury or mental or physical illness. The Nevada Retirement Board approved Claimant s application for total and permanent disability in October During the summer and fall of 2008, Claimant requested that the School District accommodate her disability by keeping her in her literary specialist position or some other non-teaching position. The School District countered by offering accommodations for the kindergarten teaching position, which Claimant refused. Claimant filed suit, claiming the School District violated the ADA by not providing a reasonable accommodation. The School District moved to dismiss Claimant s suit on the basis that Claimant was not a qualified individual under the ADA because she represented on her disability benefits application that she was permanently disabled. The trial court granted summary judgment to the School District, finding that Claimant could not adequately explain the discrepancy in her claim for disability benefits, wherein she stated that she was totally disabled, with her ADA claim, where she claimed that she could perform the essential functions of her job with a reasonable accommodation. ISSUE: Did Claimant s statements in her claims for disability and FMLA benefits and the supporting doctor certifications negate her ability to prove that she is a qualified individual under the ADA? HOLDING: No. Claimant s application for disability benefits merely stated that she was incapable of working, but said nothing of her ability to perform the essential functions of her job with a reasonable accommodation. Further, while Claimant s doctor notes indicated that she was unable to work in any capacity at the time the notes were written, there was a question of fact as to whether Claimant was able to work on dates subsequent to the issuance of those notes. SIGNIFICANCE: If a disability benefits application inherently conflicts with an ADA claim, the court must give a negative presumption against the ADA claim. The employee can overcome the negative presumption by offering a sufficient explanation for the inconsistency. This case suggests that it will be difficult to prevail at the summary judgment stage regarding any inconsistencies between a disability benefits application and an ADA claim. [The United States Supreme Court s] sufficient-explanation standard is not an exceedingly demanding one. It gives ADA plaintiffs wide latitude to overcome apparent conflicts between their disability applications and their ADA claims. But plaintiff s cannot ignore the inconsistencies between their claims either. To defeat summary judgment, a plaintiff must give an explanation that is sufficient for a reasonable juror to Client:

6 conclude that, assuming the truth of, or the plaintiff s good faith belief in, the earlier statement, the plaintiff could nonetheless perform the essential functions of her job, with or without reasonable accommodation. 2. Demers v. Austin, F.3d (9th Cir., Sept. 4, 2013). FACTS: A tenured Washington State University (WSU) professor claimed that WSU retaliated against him for exercising his First Amendment rights by publishing a plan for the reorganization of the Edward R. Murrow School of Communications at WSU. In 2006, the United States Supreme Court changed the law regarding the First Amendment s application to speech by public employees. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Prior to Garcetti, the Supreme Court addressed the First Amendment s application to speech by public employees pursuant to the two prong test set forth in Pickering v. Board of Education and Connick v. Meyers: (1) was the employee s speech addressed to matters of public concern; and (2) does the employee s interest in commenting upon matters of public concern outweigh the interest of the government, as an employer, in promoting the public efficiency of the public services it performs through its employees. The trial court granted summary judgment to WSU. It held that the plan of reorganization was written and distributed in the performance of the professor s duties as a faculty member of WSU, and was therefore not protected under the First Amendment. ISSUE: Does Garcetti apply to speech and academic writings by a publicly employed teacher? HOLDING: No. The First Amendment s application to speech and academic writings by a publicly employed teacher are still governed by the two prong Pickering v. Board of Education/Connick v. Meyers test. SIGNIFICANCE: WSU escaped monetary liability because of a qualified immunity defense. Namely, government agents are entitled to qualified immunity, even if they violate a public employee s First Amendment rights, if the agents reasonably believed that their conduct was lawful in light of clearly established law and the information they possessed. The Ninth Circuit granted the government agents qualified immunity because the issue of whether Garcetti applied to speech and academic writings by a publicly employed teacher was not resolved until this case was decided. Now that this case establishes that the First Amendment applies to speech and academic writings by publicly employed teachers in the state of Idaho and other states within the Ninth Circuit, qualified immunity will not apply to any future adverse actions taken against a publicly employed teacher because of his or her speech or academic writings that touch on matters of public concern Client:

7 3. Hagen v. City of Eugene, F.3d (9th Cir., Dec. 3, 2013). FACTS: Claimant was a member of the City of Eugene s police department s K-9 unit. Claimant made numerous complaints to his superiors in the police department about safety concerns relating to accidental firearm discharges during training exercises. Claimant s superiors became annoyed by Claimant s constant complaints and several attempts were made to transfer Claimant to another unit. The first transfer request was denied because Claimant s prior performance reviews were all positive. Claimant s supervisor then listed a number of prior incidents where Claimant s performance was problematic. Upon a more detailed review of the K-9 department and the safety concerns raised by Claimant and others, the City of Eugene ultimately decided to restructure the K- 9 department, including reassigning Claimant to a different department. Claimant then filed suit alleging that he was retaliated against for exercising his First Amendment right to free speech. The trial court determined that Claimant s speech was of a matter of public concern and then submitted the question to the jury as to whether Claimant was speaking as part of his public duties as a police officer or as a private citizen. The jury determined that Claimant was speaking as a private citizen and that the City of Eugene retaliated against Claimant for exercising his First Amendment rights, awarding Claimant $50,000 in compensatory damages and $200,000 in punitive damages. ISSUE: Did the trial court err by submitting the question to the jury as to whether Claimant was speaking as part of his public duties as a police officer or as a private citizen regarding his firearms safety concerns? HOLDING: Yes. The Ninth Circuit ruled as a matter of law that when a public employee reports departmental-safety concerns to his or her supervisors pursuant to a duty to do so, that employee does not speak as a private citizen and is not entitled to First Amendment protection. SIGNIFICANCE: For a public employee to prevail on a claim that he or she was retaliated against for exercising their first amendment rights, the public employee must prove: (1) that the claimant spoke on a matter of public concern; (2) that the claimant spoke as a private citizen and not as part of their duties as a public employee; (3) that the claimant s protected speech was a substantial or motivating factor in the adverse employment action; (4) that the government did not have adequate justification for treating the employee differently from other members of the general public; and (5) that the government would not have taken the adverse employment action absent the protected speech. This case establishes whether a public employee s speech is made as a private citizen or as part of the scope of his or her employment duties is a mixed question of fact and law. The scope of the employee s duties is a question of fact. But the significance of the undisputed facts is a question of law that must be answered by the court and not the jury. In this case, the Court concluded that there was no question of fact regarding the Client:

8 issue of whether Claimant was speaking as part of his duties as a police officer versus as a private citizen. Namely, Claimant only reported his safety concerns internally up his chain of command within the police department and not to the general public. Further, the police department s policy manual requires City of Eugene police officers to report safety concerns to their superior officers. Based upon this evidence, the Court concluded that there was only one reasonable inference to be drawn, namely that Claimant was acting within the course and scope of his duties as a police officer when he reported his safety concerns and, thus, the First Amendment did not apply to his speech. If Claimant had reported his safety concerns to the general public, e.g., to the media, or if the City of Eugene s police department did not have a policy manual that required Claimant to report his safety concerns as part of his job, then the jury should have been asked whether it was part of Claimant s job duties to report safety concerns. And then if the jury answered that question no, then the Court would need to address the other four factors listed above to determine if the public employee s First Amendment free speech rights were violated. Thus, this case emphasizes the importance of job descriptions and written policies for public entities seeking to limit their exposure to First Amendment free speech claims. 4. State of Arizona v. ASARCO LLC, F.3d (9th Cir., Oct. 24, 2013). FACTS: Claimant, a female employee, was employed as a mine worker for ASARCO near Tucson, Arizona. She was told by her first supervisor that he was romantically interested in her and he asked her out almost every day. Claimant asserted that she complained to ASARCO s HR Department, but was told there was nothing they could do and that she would need to handle it herself. ASARCO claimed that they told the supervisor to stop making advances and threatened to terminate him if he did not stop, but did not put any of this in writing. Claimant ultimately applied for a transfer, which was granted. Claimant s new position required her to report to a male employee for daily job assignments. This male employee warned Claimant at the outset that, your ass is mine, and told her that he would be spending more time with her than his lady. Claimant also complained that this male employee often gave her conflicting orders, snapped his fingers at her, and told her to watch herself, often threatening to terminate her. ASARCO did not have a functioning ladies restroom, which required Claimant to use a porta-potty with pornographic graffiti directed at her. Claimant ultimately quit her job at ASARCO and subsequently filed a lawsuit alleging sexual harassment under Title VII, retaliation, and constructive discharge. The jury found ASARCO liable on the sexual harassment claims, but not on the constructive discharge or retaliation claims. The jury awarded no compensatory damages, $1 in nominal damages, and $868,750 in punitive damages. The trial court reduced the punitive damage award to $300,000 to keep the award under Title VII s damages cap Client:

9 ISSUE: Does the award of $300,000 in punitive damages, in light of a nominal damage award of $1, violate the United States Constitution? HOLDING: Yes. The facts of this case were egregious, warranting a substantial punitive damage award. However, a ratio of 125,000 to one is the highest award on record. Thus, the Ninth Circuit reduced the punitive damage award to $125,000. SIGNIFICANCE: ASARCO dodged a bullet. The Ninth Circuit did everything it could to help the Claimant, while trying to prevent any further reduction by the United States Supreme Court. This case emphasizes the importance of documenting complaints received by employees, the need to investigate those complaints, the need to document the findings of the investigation, and documenting the remedial measures to be taken as a result of the investigation, with the overall goal of implementing reasonable measures to halt any further discriminatory conduct when warranted. When determining if an award of punitive damages is constitutionally excessive, the court needs to evaluate three factors: (1) the degree of reprehensibility of the defendant s conduct; (2) the ratio of the actual harm inflicted on the plaintiff; and (3) civil or criminal penalties that could be imposed for comparable misconduct. As for the first prong, evidence of physical harm as opposed to economic harm warrants a higher ratio of punitive damages. Further, the Court noted that intentional discrimination is a serious affront to personal liberty and should be considered high on the reprehensibility scale. As for the third factor, the Court held that Title VII s damages cap is a legislative judgment similar to the imposition of a civil fine, thus justifying an award of punitive damages in amount of the cap when warranted by the other two factors. The Ninth Circuit concluded its opinion with the following statement: Our task in reducing the award is not easy. No bright line ratio has been set by the Supreme Court for cases which are particularly egregious. Since nothing compels a particular dollar figure, we conclude that the highest punitive award supportable under due process is $125,000, in accord with the highest ratio we could locate among discrimination cases. IDAHO SUPREME COURT 1. Frogley v. Meridian Joint School District No. 2, Idaho (Nov. 27, 2013). FACTS: Claimant was hired as Assistant Principal at Mountain View High School in July of Within weeks Claimant was subjected to continuous teasing by the Principal about whether he was having sex with other females and whether he was bi-sexual or homosexual. On November 5, 2008, Claimant met with the Principal. The Principal claims that the purpose of the meeting was to discuss Claimant s poor job performance. Claimant claims that he met with the Principal on November 5, 2008, to make an emphatic demand that the sexual comments stop. The Principal supported his allegations with a written letter documenting Claimant s performance issues during the week of October 23, Following the November 5, 2008, meeting, the Principal further investigated Claimant s job performance. On November 7, 2008, the Principal asked the school counselor to Client:

10 provide him with a list of meetings that Claimant failed to attend between October 28, 2008, and November 4, The Principal also noted other performance deficiencies such as the failure to complete certain teacher evaluations. On November 11, 2008, the Principal gave Claimant his first written reprimand regarding performance issues. On November 12, 2008, Claimant was presented with a performance evaluation noting various performance deficiencies. Then when Claimant showed up 11 minutes late for a meeting with the Principal that same day, Claimant was sent a second letter of reprimand and a Level II Improvement plan for being late to the meeting. From November 12, 2008, through February 2009, the Principal continued to write up Claimant for performance deficiencies. In February of 2008, Claimant was reassigned to the Meridian School District office. On May 12, 2009, the Meridian School District recommended that Claimant not be offered a new administrative contract for the school year. Claimant subsequently filed suit for unlawful retaliation under Title VII and the IHRA and negligent infliction of emotional distress. The trial granted summary judgment to the School District on the basis that the school district articulated legitimate business reasons for Claimant s termination and Claimant failed to prove that those stated reasons were pretext. ISSUE: Did the District court err by dismissing Claimant s claims for retaliation and negligent infliction of emotional distress? HOLDING: Yes. The timing of Claimant s sexual harassment complaint coupled with the timing of the performance write-ups creates a genuine issue of material fact as to whether the School District s stated reasons for termination, poor performance and attendance issues, were pretext. SIGNIFICANCE: This case highlights the importance of the timing of the adverse employment action in relation to when the employee engaged in a protective activity. Here, the employer started to write up Claimant within days of Claimant complaining of unwelcome harassment. The Court was critical of the paper trail created by the School District, as it appeared to be fabricated. Some of the examples the Court pointed to were the write-ups for failure to perform teacher evaluations when the evidence showed that those evaluations were not due until the end of the school year. Further, Claimant completed more teacher evaluations than the Principal who wrote him up. The Principal also asked several school employees to write up Claimant s performance issues for periods prior to November 5, 2013, which is the date that Claimant asked the Principal to stop the alleged harassing behavior. This emphasizes the importance of contemporaneous write-ups and the reason why employers should never try to paper the file after the fact Client:

11 2. Black v. Idaho State Police, Idaho (Nov. 27, 2013). FACTS: Claimant was the former Executive Director of the Idaho Peace Officer Standards and Training Council (POST), which is a division of the Idaho State Police (ISP). Claimant asserts that the ISP terminated his employment in violation of the Idaho Whistleblower Act. POST is empowered to establish standards for the training, education, employment, and certification of peace officers in Idaho. As Executive Director for POST Claimant reported to Colonel Carboneau and later Colonel Russell of the ISP for administrative matters. In 2008, POST began to have budget difficulties requiring ISP to transfer additional funds to POST to meets its monthly payroll obligations. As a result, the ISP asked POST to provide an accounting. Claimant refused to provide a full accounting, claiming that the laws and regulations creating POST did not require POST to comply with the ISP directive. In addition to the budget difficulties, ISP became aware of various personnel management issues at POST and received a report that Claimant was not carrying out directives given to him by the ISP. ISP then requested a Personnel Management Audit Report in 2009, which ultimately found several concerns about the personnel management of POST. Claimant was instructed by the ISP to provide a response to the concerns raised by the Personnel Management Audit Report. Claimant provided a partial response a month after the deadline imposed by the ISP. Also in 2009, Claimant refused to approve ISP s directive to transfer a POST employee back to the ISP and refused to provide any further response to the concerns raised by the Personnel Management Audit Report. In September of 2009, the ISP provided Claimant with a Notice of Contemplated Action, proposing to terminate his employment for failing to comply with the directives from the ISP. The POST board concluded that ISP had authority to give Claimant the directives it did and agreed with ISP s decision to terminate Claimant. Thus, on November 5, 2009, Claimant was terminated. Claimant claimed that the laws and regulations that established POST did not give the ISP the authority to issue the directives that were given to him and that the ISP terminated his employment in violation of the Idaho Whistleblower statute because the ISP was trying to force him to do something that he was not legally obligated to do. Claimant appealed his termination to the Idaho Personnel Commission, where a hearing officer entered a preliminary order granting summary judgment to ISP, which was affirmed by the Personnel Commission. Claimant then filed suit in the district court, which also granted summary judgment in favor of the ISP. ISSUE: Did Claimant s termination violate the Idaho Whistleblower Act? Client:

12 HOLDING: No. The Whistleblower Act is intended to protect those employees who are asked to engage in illegal activity or who are retaliated against because they reported or participated in an investigation of illegal or illicit governmental activity. The Whistleblower statue was not intended to protect subordinate government employees from rebuking the directives of their supervisors simply because the subordinate believes the directives are not consistent with the laws and regulations governing that agency. SIGNIFICANCE: The Idaho Supreme Court noted that this was a classic case of insubordination. [I]mplicit in the Whistleblower Act is the requirement that the employer engage in some sort of predicate act which could include ordering an employee to do something illegal, or engaging in illicit activities itself that triggers the applicability of the Act in the first place. This predicate act is entirely lacking here. The Whistleblower Act was not triggered because Col. Russell was simply asking Black to do his job. Even if Col. Russell did not have the authority to give the directives he did, as Black alleges, it is unclear how the laws cited by Black would have been violated. In sum, any belief Black may have had that Col. Russell or ISP had committed a violation or suspected violation of any statute or rule at issue here was not objectively reasonable. Disputing proper administrative authority does not constitute protected activity. In this case, it amounted to classic insubordination. Unfortunately for Black, the Whistleblower Act is not intended to protect those who engage in bureaucratic turf squabbles. 3. Hatheway v. Board of Regents of the University of Idaho, Idaho (Sept. 6, 2013). FACTS: Claimant was employed as an administrative assistant for the University of Idaho. She began her employment with the U of I in In 2005, Claimant participated in the hire of a financial technician for the English Department in which she was working. Claimant became upset that the financial technician was hired at a wage that exceeded Claimant s wage. As a result, Claimant made a complaint to Dr. Olsson, the Chair of the English Department, and Claimant s supervisor. Shortly after lodging such complaint, Dr. Olsson gave Claimant a positive job performance evaluation. In May of 2006, U of I President Timothy White gave his State of University address and suggested that U of I faculty had an obligation to retire to make room for the next generation of college professors. Claimant alleges this was the start of a pattern of age discrimination at the U of I. In March of 2007, Claimant received a performance evaluation that rated her as needing improvement in six categories. Claimant also received a Professional Development Plan designed to improve her performance in the coming year. The negative performance ratings were largely related to Claimant continuing to voice her complaints and dislikes of the financial technician that was paid more than her and of Dr. Olsson. Prior to March of 2007, the financial technician had complained to U of I s Human Resources Client:

13 department about her unpleasant encounters with Claimant and went so far as to tender her resignation in January of 2007 because of what she believed to be intolerable behavior by Claimant. In April of 2007, Claimant filed a University Problem Solving Request because of what she claims was an unwarranted and unsupported annual review by Dr. Olsson. In response, Dr. Olsson sent a letter to Claimant summarizing the reasons for her negative performance ratings and explaining why he would not be raising Claimant s salary to match the financial technician s salary. In August of 2007, Claimant filed a charge of age discrimination and retaliation with the Idaho Human Rights Commission. Claimant alleged that after filing her charge with the IHRC she continued to be isolated in her employment, was left out of critical communications, and had numerous essential job duties taken away from her. Because of the claims against Dr. Olsson, the Associate Dean of U of I gave Claimant her next performance evaluation, which contained two needs improvement ratings. On August 28, 2008, Claimant tendered her resignation from U of I, claiming that she suffered severe emotional stress and anxiety over her working conditions. Claimant subsequently filed suit against U of I claiming age discrimination, hostile work environment, retaliation, and negligent infliction of emotional distress. U of I moved for summary judgment on all counts and the district court granted the motion, determining that Claimant failed to establish a prima facie case because she could not establish that age discrimination was the but-for cause of the alleged adverse employment actions. ISSUE: Did the district court err in requiring Claimant to prove, as part of her prima facie case, that age discrimination was the but-for cause of her adverse employment actions? HOLDING: Yes. But the Idaho Supreme Court affirmed the dismissal of Claimant s claims against the U of I on other grounds, namely, Claimant failed to prove that the U of I s legitimate reasons for her poor performance ratings were pretext. SIGNIFICANCE: This is the classic case of a Court wanting to help an employer rid itself of a doggy downer and cut the cancer from the workplace. As for its legal significance, this case holds that the McDonnell Douglas burden shifting analysis still applies to age discrimination claims based on indirect evidence of age discrimination. Thus, an employee can establish a prima facie case of age discrimination by proving that: (1) she was an employee of at least 40 years of age; (2) she was performing her job in a satisfactory manner; (3) her employer took an adverse employment action against her; and (4) her position was filled by a younger person of equal or lesser qualifications. As for the third element, the employee does not need to show that the employer took the adverse employment action because of the employee s age. Rather, the employee need only show that an adverse employment action was taken, and then the employer must come forward with a legitimate business reason for the Client:

14 adverse employment action. If the employer does articulate a legitimate business reason, the burden of proof remains on the employee to prove that age discrimination was the but-for cause of the adverse employment action and that the employer s proffered legitimate reason is pretext. Significant statements by the Idaho Supreme Court: 1. Getting the cold shoulder from a supervisor and other employees and receiving poor performance ratings do not constitute grounds for constructive discharge absent some evidence of discriminatory intent. 2. Generally, formal criticism or poor performance evaluations alone are not adverse employment actions. However, a negative performance evaluation is an adverse employment action if it precludes the employee from receiving an automatic pay raise. Because the University does not dispute that Hatheway s negative employment evaluation precluded her from receiving an automatic pay raise, it constitutes an adverse employment action and she has succeeded in establishing a prima facie case for discrimination. 3. A plaintiff can establish pretext by showing either that a discriminatory reason more likely motivated the employer or that the employer s proffered explanation is unworthy of credence. Generally, a plaintiff demonstrates pretext by showing that the employer s stated reason for the adverse employment action either (1) has no basis in fact, (2) was not the actual reason, or (3) is insufficient to explain the employer s action. 4. To survive summary judgment, Hatheway must provide sufficient evidence from which a jury could reasonably find that, but for her age, she would not have received a negative performance evaluation.... Past positive performance reviews are not sufficient evidence alone to rebut the reasons given for Hatheway s negative 2006 performance review. 5. The remaining adverse employment actions she claims, isolation and removal of employment duties, are not adverse for the purpose of her retaliation claim Client: