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WA Supreme Court Clarifies Standard For Asserting Discrimination Claims; Reinstates Age And Gender Discrimination Lawsuit

Posted Wednesday, October 25, 2017 by McKean J. Evans

The Washington Supreme Court’s recent En Banc ruling in Mikkelsen v. Public Utility District No. 1 of Kittitas County clarifies what an employee must allege in order to sue for illegal discrimination under Washington law. In that case, Kim Mikkelsen sued the Kittitas County Public Utility District No. 1 (“District”), alleging the District fired her due to her manager’s bias against women and older employees. Mikkelsen alleged her termination violated Washington’s Law Against Discrimination.

Mikkelsen worked for the District for several decades without incident until the Board hired a new general manager, Charles Ward, in 2010. Mikkelsen claimed Ward excluded Mikkelsen from emails with Mikkelsen’s male co-workers, was belligerent with her, talked over her in meetings and undermined her authority in front of other employees.
After Mikkelsen complained to the District and emailed the District a survey she proposed sending to other employees asking if they felt Ward engaged in gender discrimination, Ward fired Mikkelsen. Mikkelsen had not previously been reprimanded or disciplined during her employment at the District. The District replaced Mikkelsen with a 51 year old woman and subsequently fired Ward.

The Supreme Court clarified that Mikkelsen could allege age and gender discrimination claims even though the District replaced her with a 51 year old woman. The court observed nearly every federal court to address the question under analogous federal law reached the same result. The fact that a female or over-40 plaintiff claiming discrimination was replaced by another woman over age 40 might be relevant evidence that no discrimination occurred, but, the court ruled, it does not foreclose proving the plaintiff was fired for a discriminatory reason.

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Federal Appeals Court Affirms $6.6 Million Jury Verdict In Favor Of Police Officers On Race Discrimination Claims

Posted Wednesday, October 18, 2017 by McKean J. Evans

The Ninth Circuit Court of Appeals recently affirmed a $6.6 million jury verdict in favor of the plaintiffs, three police officers of Latino descent, against the City of Westminster’s police department. In Flores v. City of Westminster, the court declined to overturn the jury’s decision that the City violated the federal Civil Rights Act and the California Fair Employment and Housing Act.

The plaintiffs alleged the City discriminated against them by denying them promotions that were awarded to less-experienced officers and tolerating other officers’ racial slurs. When the officers complained, the City retaliated against the officers by finding pretexts to reprimand them. Prior to their complaints, the officers had good discipline records and commendations.

Before the Ninth Circuit, the City argued the court should throw out the jury’s verdict in favor of the officers. The court rejected the City’s arguments.

First, the City claimed the jury erred in ruling in the officers’ favor. The City claimed none if its conduct supported the jury’s conclusion the City discriminated against the officers. The court disagreed, finding the evidence presented at trial permitted a rational jury to conclude the City discriminated against the officers. Among other things, the evidence showed the City reprimanded the officers after they complained about discrimination, that the reprimands were for violations of policies the City applied inconsistently, that the City took these actions with knowledge the officers had complained, and that the timing of the City’s reprimands relative to the officers’ complaints supported the inference the City retaliated against the officers.

Second, the City claimed the jury improperly awarded the officers a “double recovery” by awarding the officers damages under both state and federal antidiscrimination laws. The court rejected this argument. The court ruled that the evidence permitted the jury’s conclusion that the officers were entitled to recover under both statutes.

Third, the City argued that the at-issue federal civil rights law, Section 1981, did not apply because it prohibits only discrimination with respect to contracts and the officers’ employment was not pursuant to contract. The court acknowledged that the applicable state law provided that public employment is governed by statute, not contract. But the court noted that Congress expanded Section 1981 in 1991 specifically to broaden its reach. In light of the 1991 amendments and the statute’s purpose, the court found that reading California law to deprive the officers of their rights under Section 1981 would be inconsistent with federal law.

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Federal Judge Declines To Block Washington’s “Cyberstalking” Law, But Doubts Its Constitutionality

Posted Wednesday, October 11, 2017 by McKean J. Evans

On Tuesday, October 10, 2017, a Tacoma federal judge issued a ruling declining to block Washington’s anti-cyberstalking law, but expressed concerns the law may be unconstitutional. The plaintiff in the lawsuit alleges the law is unconstitutional because, among other things, it prohibits online speech designed to embarrass other people that is otherwise protected by the First Amendment. The plaintiff was threatened with prosecution under the law after he made online statements and sent repeated texts that criticized, but did not threaten, a local activist in a disagreement about whether a memorial to World War II internment camps should also address modern indefinite detention in the war on terror.

Washington’s cyberstalking law prohibits electronic communications made with the intent to “harass, intimidate, torment or embarrass” other persons using indecent or obscene language, are made anonymously, or threaten to inflict injury. The law closely resembles Washington’s telephone-harassment law, which has been upheld by courts. But by applying to all electronic communications, Washington’s cyberstalking law is significantly broader in scope.

In expressing concerns about the law’s constitutionality, the judge criticized the defendant, Kitsap County Prosecutor’s Office, for its “reluctance to address the constitutionality of the statute.” The judge ruled the law’s constitutionality was better addressed by a Washington state court as part of the plaintiff’s appeal of a protection order the activist obtained against him over the same conduct.

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Impending U.S. Supreme Court Decision Could Dramatically Effect Employer-Employment Relationship

Posted Wednesday, October 4, 2017 by McKean J. Evans

On October 2, 2017, the U.S. Supreme Court heard argument in three consolidated cases that could significantly alter employment law nationwide. The three cases, Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil USA, Inc., require the Supreme Court to decide whether employers can force employees to give up their right to sue their employer in court and instead agree to resolve legal disputes in private arbitration. Private arbitration differs from the court system in several important ways. Among other things, individuals’ right to obtain information from the other party is significantly limited, there is virtually no right to an appeal, and individuals cannot proceed as a group in a class or collective action.

Arbitration agreements have gained notoriety in recent years. While the Federal Arbitration Act permitted arbitration agreements since 1925, arbitration was traditionally only used between business entities with relatively equal bargaining power, not between large companies and individuals or small business. That changed with the Supreme Court’s 2011 ruling AT&T Mobility v. Concepcion, which broadly upheld business’ rights to include arbitration agreements in boilerplate “take-it-or-leave-it” contracts offered to individual consumers or small business who lacked the bargaining power to to negotiate. After the Concepcion decision, arbitration agreements became increasingly common in everyday consumer contracts. A 2015 New York Times investigation found consumers were required to agree to forego the court system in favor of private arbitration in industries as varied as credit cards, online dating, telecommunications, health care and education. A report to Congress by the federal Consumer Financial Protection Bureau found that “[t]ens of millions of consumers” were subject to arbitration clauses through their use of financial products or services.

In the three cases currently before the Supreme Court, Epic Systems, Ernst & Young and Murphy Oil each required their employees to sign arbitration agreements as a condition of employment. Each arbitration agreement required the employee to resolve any disputes individually rather than collectively, for instance, through a class action. The workers argued their arbitration agreements violated the federal National Labor Relations Act (“NLRA”), which protects employees’ right to act collectively to challenge their employer.

The Justices’ questions at oral argument underscored the importance of the Court’s decision in the three cases. Justice Stephen Breyer noted that the NLRA right to collective employment action was a key part of employment reforms undertaken in the 1940’s, and that a ruling allowing employers to require employees to arbitrate disputes individually risked “undermining and changing radically” the labor laws that are the “entire heart of the New Deal.” Justice Ginsburg opined that arbitration seemed inconsistent with the NLRA’s purpose of putting employees on equal footing with their employer. On the other hand, Chief Justice John Roberts observed that a decision striking down the arbitration agreements in these cases would invalidate similar employment agreements covering 25 million people, a step some justices seemed reluctant to take.

Now that the case has been argued, a decision is likely sometime in the coming months.

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Employee Terminated For Falsely Reporting Aircraft Safety Inspections Is Ineligible For Unemployment

Posted Thursday, September 28, 2017 by McKean J. Evans

In its September 25, 2017 published decision in Cuesta v. State, No. 75405-0-I, the Court of Appeals ruled an employee who was terminated for falsely marking aircraft components as inspected was ineligible for unemployment benefits.

Jose Cuesta was discharged from Boeing after failing to physically inspect parts he had approved and verified as inspected. Cuesta’s duties included physically inspecting fabricated airplane parts after they were manufactured to ensure the components’ integrity and performance before they were installed on commercial aircraft. The job was vital to the safety of passengers traveling on aircraft manufactured by Boeing.

Cuesta’s supervisor observed Cuesta failed to adequately inspect parts, including marking airplane wing holes as inspected when the wing holes had not yet been drilled. When confronted, Cuesta explained that he was very busy because the plant was short-staffed and he was distracted by threatening notes from his coworkers because he did not support the Seattle Seahawks. As a result of this discovery, Boeing disassembled the partially assembled aircraft to inspect its component parts Cuesta had previously marked as inspected in order to avoid what the court termed “the potentially catastrophic consequences of faulty inspections.”

Boeing’s workplace rules prohibited “falsifying of acceptance or approval of work, such as stamping work complete with the knowledge work wasn’t completed or done.” Cuesta was aware that he was never “to approve or sign off on work without performing the inspection.” Accordingly, Boeing discharged Cuesta.

Cuesta then applied for unemployment benefits. His application was ultimately denied on the basis that Cuesta’s discharge disqualified him from benefits. On appeal to the Court of Appeals, Cuesta argued that he was not discharged for misconduct.

Washington’s Employment Security Act provides compensation to individuals who are unemployed “through no fault of their own.” RCW 50.01.010. Individuals are disqualified from employment benefits if they are discharged for work-related misconduct. However, simply because an employee was discharged for cause does not necessarily mean that the employee’s actions constitute misconduct sufficient to disqualify them for unemployment benefits.

In Cuesta’s case, the court emphasized that Cuesta’s duties in inspecting aircraft components were critical to the safety of passengers traveling on Boeing aircraft. The court disagreed with Cuesta that his actions were merely “inefficiency, unsatisfactory conduct, or failure to perform well,” such as typographical errors or failing to properly record legal documents, which do not constitute misconduct sufficient to deprive a worker of unemployment benefits. Rather, the court noted Cuesta had eight years’ experience as an inspector and lacked any reason to fail to perform his duties satisfactorily. The court concluded:Cuesta was aware of the gravity of his job, knew that his inspection was to ensure the safety of the flying public, and was aware that he must never approve or sign off on work without performing the inspection…Even if Cuesta had been confused by the assignment, there is no evidence that he requested assistance from his manager, who was in the area, in order to ensure that he was properly performing this essential function. Cuesta’s conduct was intentional and in substantial disregard of Boeing’s interest in keeping passengers on its aircraft safe.

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