Penn State World Campus Business Law Paper

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CHAPTER 10

Please respond to all 3 of these question sets.

Question Set 1

Molly Brooks is employed as a clerk in a New York circuit court, which is not unionized. In addition to filing, Molly handles incoming phone calls and emails and assists walk-ins at the counter. Last week, her supervisor noticed that Molly was behind on the filing and called her in for a disciplinary meeting. Molly asked to have the meeting postponed so that she could bring a representative, but her request was denied. At the meeting, Molly admitted that she was behind but complained of being overworked and underappreciated. It was impossible, she said, to stay on top of the filing because she was also obliged to answer phone calls, respond to email inquiries, and help the attorneys, law clerks, messengers, litigants, and various members of the public who sought her assistance at the walk-in counter. She pointed out that the long lines and delays in the clerk’s office had recently been the subject of a local news story that had been highly critical of the court. The supervisor rejected Molly’s explanation and ended the meeting by giving Molly a formal reprimand and warning.

When she got home, Molly went right to Facebook and posted about the unfairness of her discipline in circumstances where she was just doing her best to serve members of the public needing essential services from the court. She also shared her post with a friend who publishes a daily legal blog. By 8:00 p.m. that evening, that blog featured a story about how Molly had been punished for spending too much time helping members of the public at the county courthouse.

When she reported for work the next morning, Molly was called back into her supervisor’s office and fired for her social media activity and the resulting story that put the court in a bad light.

In light of the Lesson 7 course reading, analyze the fact pattern using the IRAC (issue, rule, analysis, conclusion) formula:

• Identify the narrow legal issue(s) identified in the fact pattern.
• Identify the rule or test used to analyze such issues, providing a case, statute, or other basis for the rule or test. If you cite a case, please provide a complete case citation.
• Explain how that rule/test analyzes these issues.
• Identify and explain the basis for the conclusion that you anticipate a court would reach based on the law and the facts presented here.

If you need additional information to respond to the questions, describe that information and explain how it would bear on your analysis.

Question Set 2

Now assume that instead of working for a New York county circuit court, Molly is employed by a federal agency that processes administrative legal complaints; her workplace is unionized; and she’s represented by the American Federation of Federal Government Employees (AFFGE), which is a party to a collective bargaining agreement with that agency. Otherwise, assume the facts are the same as those already described.

Analyze the revised fact pattern using the IRAC formula:

Identify the narrow legal issue(s) identified in the fact pattern.Identify the rule or test used to analyze such issues, providing a case, statute, or other basis for the rule or test. If you cite a case, please provide a complete case citation.Explain how that rule/test analyzes these issues.Identify and explain the basis for the conclusion that you anticipate a court would reach based on the law and the facts presented here.

In addition, explain whether Molly could challenge her discharge and, if so, describe the options she might have in that regard.

If you need additional information to respond to the questions, describe that information and explain how it would bear on your analysis.

Question Set 3

Assume Molly still works at a federal agency and all the facts above still apply. But now add this scenario: Molly has discovered that a male coworker who was similarly situated got suspended instead of being fired.

• Describe the additional claim(s) that Molly might have in light of this additional information and the law upon which that claim(s) would be based.
• Describe the process that Molly could follow to assert the claim(s).
• Is it likely that she could file a lawsuit in court? If so, on what basis? If not, why not?

If you need additional information to respond to the questions, describe that information and explain how it would bear on your analysis.

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US Supreme Court Review:
Lane v. Franks
 Paul M. Secunda (https://law.marquette.edu/facultyblog/author/paulsecunda/)  July 10, 2014  First Amendment (https://law.marquette.edu/facultyblog/category/firstamendment/) / Labor & Employment Law
(https://law.marquette.edu/facultyblog/category/labor-employment-law/) /
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Court (https://law.marquette.edu/facultyblog/category/federal-law-legalsystem/us-supreme-court/)  0 Comments (https://law.marquette.edu/facultyblog/2014/07/us-supremecourt-review-lane-v-franks/#respond)
(http://law.marquette.edu/facultyblog/wpcontent/uploads/2014/06/ussc-ot-2013logo-tn.jpg)(This is another post in our
series, Looking Back at the U.S. Supreme
Court’s 2013 Term
(http://law.marquette.edu/facultyblog/?
s=%22US+Supreme+Court+Review%22).)
This past year has been another active one for labor and employment law
cases at the United States Supreme Court. Decisions have ranged from
public employee free speech to the collection of dues by public-sector
unions to the fiduciary duties owed under employee benefits law when a
plan fiduciary invests in company stock. This blog post focuses on the
public employee free speech case, Lane v. Franks, No. 13-483 (June 19,
2014)
(http://www2.bloomberglaw.com/public/desktop/document/Lane_v_Fran
ks_No_13483_US_June_19_2014_Court_Opinion), while two subsequent
posts will discuss the labor law cases of Harris v. Quinn and NLRB v. Noel
Canning, and finally the ERISA case of Fifth Third Bancorp v.
Dudenhoeffer.
First, it is necessary to start with a disclosure. I co-authored, and was
Counsel of Record, on an amicus brief filed on behalf of over sixty law
professors in support of the plaintiff in the case, Edward Lane. We
argued that Mr. Lane should have had protections under the free speech
provisions of the First Amendment after he was fired allegedly for
testifying under subpoena in both grand jury and criminal trial
proceedings against a former employee under his supervision. We did
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not brief the second issue in the case of whether the individual
defendant, Mr. Frank, should be entitled to qualified immunity with
regard to any First Amendment violations of Mr. Lane’s rights.
More specifically, and as the Supreme Court concisely related the facts:
Director of Community Intensive Training for Youth (CITY), a
program for underprivileged youth operated by Central
Alabama Community College (CACC), petitioner Edward
Lane conducted an audit of the program’s expenses and
discovered that Suzanne Schmitz, an Alabama State
Representative on CITY’s payroll, had not been reporting for
work.
Consequently, Lane was subpoenaed to testify in the criminal
prosecution of Schmitz, at both the grand jury and criminal trial stage.
Schmitz ended up being sentenced to prison. Shortly after given the
testimony, Lane was fired by the president of CACC, Franks. Lane claimed
that his firing was in violation of his free speech rights under the First
Amendment.
First Amendment free speech claims by public employees are subject to a
complicated legal test. Under Garcetti v. Ceballos (U.S. 2006), the
employee first must prove he or she was acting as a citizen, and not as an
employee pursuant to his or her official duties. Employees speaking out
pursuant to their official duties have been found to have no First
Amendment protection under Garcetti because they have been hired by
the government to engage in that speech and the public employer has
substantial discretion in running an efficient government service. Only if
the employee is found to be speaking as citizen does the employee get
the opportunity to show that he or she was speaking on a matter of
public concern under Connick v. Myers (U.S. 1983), and that the
employee’s rights to free speech outweigh the employer’s right to run an
efficient government service under Pickering v. Bd. of Education (U.S.
1968).
Here, the issue was whether Lane was acting pursuant to his official
duties when he discovered that Schmitz was being paid without reporting
to work and, therefore, had no free speech protection under Garcetti.
Not surprisingly, the Supreme Court overruled the Eleventh Circuit’s
decision, and found that testimony required by subpoena is
quintessential citizen speech and subject to the First Amendment. Said
the Court (per Justice Sotomayor):
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Sworn testimony in judicial proceedings is a quintessential
example of citizen speech for the simple reason that
anyone who testifies in court bears an obligation, to the
court and society at large, to tell the truth. That obligation is
distinct and independent from any separate obligations a
testifying public employee might have to his employer.
The Court clarified that Garcetti did not apply to speech learned as a
result of public employment, but only speech that was required as part of
the public employee’s official duties. Clearly, Lane’s official duties did not
include providing sworn testimony under subpoena.
Although Lane was successful in showing that he could potentially make a
First Amendment free speech claim under the various tests enunciated
by the Court previously in Garcetti, Connick, and Pickering, Franks, the
community college president, was found to enjoy qualified immunity
from First Amendment liability. This was largely because the free speech
rights of public employees in these circumstances were not clearly
established in the Eleventh Circuit because that court had a history of
providing an overly-generous interpretation of the Garcetti holding.
Nevertheless, the case was remanded on Lane’s claims against Franks in
his official capacity as the President of Community College to see if that
claim could lead to the relief that Lane sought, including reinstatement
and backpay for the First Amendment retaliation he suffered at the hands
of the college.
In all, Lane v. Franks clarifies the contours of the Garcetti holding by
narrowing it to speech that is actually part of the public employee’s job.
As a concurrence written by Justice Thomas points out, the case may well
have come out differently if the employee, like a police officer, had a job
description which did require him to testify under subpoena. But that is
another case for a future date.
The other important point is that the holding of Garcetti, which I have
roundly criticized for being overly formalistic in its distinction between
public employees speaking as citizens or employees, but never both, was
not under reconsideration. My personal hope is that someday the Court
will reexamine the Garcetti precedent and recognize the errors it made in
unnecessarily narrowing the First Amendment free speech rights of
public employees.
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U.S. Equal Employment Opportunity Commission
Overview Of Federal Sector
EEO Complaint Process
If you are a federal employee or job applicant, the law protects you from
discrimination because of your race, color, religion, sex (including gender identity,
sexual orientation, and pregnancy), national origin, age (40 or older), disability or
genetic information. The law also protects you from retaliation if you oppose
employment discrimination, file a complaint of discrimination, or participate in the
EEO complaint process (even if the complaint is not yours.)
There are also federal laws and regulations and Executive Orders(which are not
enforced by EEOC) that prohibit discrimination on bases such as sexual orientation,
marital status, parental status, or political affiliation.
If you are a federal employee or job applicant and you believe that a federal agency
has discriminated against you, you have a right to file a complaint. Each agency is
required to post information about how to contact the agency’s EEO Office. You can
contact an EEO Counselor by calling the office responsible for the agency’s EEO
complaints program.
EEO Counselor
The first step is to contact an EEO Counselor at the agency where you work or where
you applied for a job. Generally, you must contact the EEO Counselor within 45 days
from the day the discrimination occurred.
In most cases the EEO Counselor will give you the choice of participating either in
EEO counseling or in an alternative dispute resolution (ADR)
(https://www.eeoc.gov/federal-sector/alternative-dispute-resolution) program,
such as a mediation program.
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If you do not settle the dispute during counseling or through ADR, you can file a
formal discrimination complaint against the agency with the agency’s EEO Office.
You must file within 15 days from the day you receive notice from your EEO
Counselor about how to file.
Filing A Formal Complaint
Once you have filed a formal complaint, the agency will review the complaint and
decide whether or not the case should be dismissed for a procedural reason (for
example, your claim was filed too late).
If the agency doesn’t dismiss the complaint, it will conduct an investigation. The
agency has 180 days from the day you filed your complaint to finish the
investigation.
When the investigation is finished, the agency will issue a notice giving you two
choices: either request a hearing before an EEOC Administrative Judge or ask the
agency to issue a decision as to whether the discrimination occurred.
Agency Issues A Decision (Final
Action)
If you ask the agency to issue a decision and no discrimination is found, or if you
disagree with some part of the decision, you can appeal the decision to EEOC or
challenge it in federal district court.
Requesting A Hearing
If you want to ask for a hearing, you must make your request in writing or via the
EEOC Public Portal located at https://publicportal.eeoc.gov/
(https://publicportal.eeoc.gov/portal/Login.aspx?ReturnUrl=%2fportal%2f)
where you can also upload hearing requests, and manage your personal and
representative information within 30 days from the day you receive the notice from
the agency about your hearing rights. If you request a hearing, an EEOC
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Administrative Judge will conduct the hearing, make a decision, and order relief if
discrimination is found.
Once the agency receives the Administrative Judge’s decision, the agency will issue
what is called a final order which will tell you whether the agency agrees with the
Administrative Judge and if it will grant any relief the judge ordered. The agency will
have 40 days to issue the final order. It will also contain information about your right
to appeal to EEOC, your right to file a civil action in federal district court, and the
deadline for filing both an appeal and a civil action.
Filing An Appeal Of The Agency’s
Final Order
You have the right to appeal an agency’s final order (including a final order
dismissing your complaint) to EEOC Office of Federal Operations. You must file your
appeal no later than 30 days after you receive the final order. You may file your
appeal using the EEOC’s Public Portal located at https://publicportal.eeoc.gov/
(https://publicportal.eeoc.gov/portal/Login.aspx?ReturnUrl=%2fportal%2f)
where you can also upload selected documents, and manage your personal and
representative information.
EEOC appellate attorneys will review the entire file, including the agency’s
investigation, the decision of the Administrative Judge, the transcript of what was
said at the hearing (if there was a hearing), and any appeal statements.
If the agency disagrees with any part of the Administrative Judge’s decision, it must
appeal to EEOC.
Request For Reconsideration Of The
Appeal Decision
If you do not agree with the EEOC’s decision on your appeal, you can ask for a
reconsideration of that decision. A request for reconsideration is only granted if you
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law applied to the facts. You must ask for reconsideration no later than 30 days after
you receive our decision on your appeal.
Once EEOC has issued a decision on the appeal, the agency also has the right to ask
EEOC to reconsider that decision.
Once we have made a decision on your request for reconsideration, the decision is
final.
Filing A Lawsuit
You must go through the administrative complaint process before you can file a
lawsuit. There are several different points during the process; however, when you
will have the opportunity to quit the process and file a lawsuit in court, including:
After 180 days have passed from the day you filed your complaint, if the agency
has not issued a decision and no appeal has been filed
Within 90 days from the day you receive the agency’s decision on your
complaint, so long as no appeal has been filed
After the 180 days from the day you filed your appeal if the EEOC has not issued
a decision, or
Within 90 days from the day you receive the EEOC’s decision on your appeal.
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LII > U.S. Code > Title 5 > PART III > Subpart F > CHAPTER 71 > SUBCHAPTER III
> § 7121
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5 U.S. Code § 7121 – Grievance procedures
U.S. Code
Notes
(a)
(1) Except as provided in paragraph (2) of this subsection, any collective
bargaining agreement shall provide procedures for the settlement of
grievances, including questions of arbitrability. Except as provided in
subsections (d), (e), and (g) of this section, the procedures shall be the
exclusive administrative procedures for resolving grievances which fall within
its coverage.
(2) Any collective bargaining agreement may exclude any matter from the
application of the grievance procedures which are provided for in the
agreement.
(b)
(1) Any negotiated grievance procedure referred to in subsection (a) of this
section shall—
(A) be fair and simple,
(B) provide for expeditious processing, and
(C) include procedures that—
(i) assure an exclusive representative the right, in its own behalf or on
behalf of any employee in the unit represented by the exclusive
representative, to present and process grievances;
(ii) assure such an employee the right to present a grievance on the
employee’s own behalf, and assure the exclusive representative the
right to be present during the grievance proceeding; and
(iii) provide that any grievance not satisfactorily settled under the
negotiated grievance procedure shall be subject to binding arbitration
which may be invoked by either the exclusive representative or the
agency.
(2)
(A) The provisions of a negotiated grievance procedure providing for
binding arbitration in accordance with paragraph (1)(C)(iii) shall, if or to the
extent that an alleged prohibited personnel practice is involved, allow the
arbitrator to order—
(i) a stay of any personnel action in a manner similar to the manner
described in section 1221(c) with respect to the Merit Systems
Protection Board; and
(ii) the taking, by an agency, of any disciplinary action identified under
section 1215(a)(3) that is otherwise within the authority of such agency
to take.
(B) Any employee who is the subject of any disciplinary action ordered
under subparagraph (A)(ii) may appeal such action to the same extent and
in the same manner as if the agency had taken the disciplinary action
absent arbitration.
(c) The preceding subsections of this section shall not apply with respect to any
grievance concerning—
(1) any claimed violation of subchapter III of chapter 73 of this title (relating to
prohibited political activities);
(2) retirement, life insurance, or health insurance;
(3) a suspension or removal under section 7532 of this title;
(4) any examination, certification, or appointment; or
(5) the classification of any position which does not result in the reduction in
grade or pay of an employee.
(d) An aggrieved employee affected by a prohibited personnel practice under
section 2302(b)(1) of this title which also falls under the coverage of the negotiated
grievance procedure may raise the matter under a statutory procedure or the
negotiated procedure, but not both. An employee shall be deemed to have
exercised his option under this subsection to raise the matter under either a
statutory procedure or the negotiated procedure at such time as the employee
timely initiates an action under the applicable statutory procedure or timely files a
grievance in writing, in accordance with the provisions of the parties’ negotiated
procedure, whichever event occurs first. Selection of the negotiated procedure in
no manner prejudices the right of an aggrieved employee to request the Merit
Systems Protection Board to review the final decision pursuant to section 7702 of
this title in the case of any personnel action that could have been appealed to the
Board, or, where applicable, to request the Equal Employment Opportunity
Commission to review a final decision in any other matter involving a complaint of
discrimination of the type prohibited by any law administered by the Equal
Employment Opportunity Commission.
(e)
(1) Matters covered under sections 4303 and 7512 of this title which also fall
within the coverage of the negotiated grievance procedure may, in the
discretion of the aggrieved employee, be raised either under the appellate
procedures of section 7701 of this title or under the negotiated grievance
procedure, but not both. Similar matters which arise under other personnel
systems applicable to employees covered by this chapter may, in the
discretion of the aggrieved employee, be raised either under the appellate
procedures, if any, applicable to those matters, or under the negotiated
grievance procedure, but not both. An employee shall be deemed to have
exercised his option under this subsection to raise a matter either under the
applicable appellate procedures or under the negotiated grievance procedure
at such time as the employee timely files a notice of appeal under the
applicable appellate procedures or timely files a grievance in writing in
accordance with the provisions of the parties’ negotiated grievance procedure,
whichever event occurs first.
(2) In matters covered under sections 4303 and 7512 of this title which have
been raised under the negotiated grievance procedure in accordance with this
section, an arbitrator shall be governed by section 7701(c)(1) of this title, as
applicable.
(f) In matters covered under sections 4303 and 7512 of this title which have been
raised under the negotiated grievance procedure in accordance with this section,
section 7703 of this title pertaining to judicial review shall apply to the award of an
arbitrator in the same manner and under the same conditions as if the matter had
been decided by the Board. In matters similar to those covered under sections
4303 and 7512 of this title which arise under other personnel systems and which
an aggrieved employee has raised under the negotiated grievance procedure,
judicial review of an arbitrator’s award may be obtained in the same manner and
on the same basis as could be obtained of a final decision in such matters raised
under applicable appellate procedures.
(g)
(1) This subsection applies with respect to a prohibited personnel practice
other than a prohibited personnel practice to which subsection (d) applies.
(2) An aggrieved employee affected by a prohibited personnel practice
described in paragraph (1) may elect not more than one of the remedies
described in paragraph (3) with respect thereto. For purposes of the preceding
sentence, a determination as to whether a particular remedy has been elected
shall be made as set forth under paragraph (4).
(3) The remedies described in this paragraph are as follows:
(A) An appeal to the Merit Systems Protection Board under section 7701.
(B) A negotiated grievance procedure under this section.
(C) Procedures for seeking corrective action under subchapters II and III of
chapter 12.
(4) For the purpose of this subsection, a person shall be considered to have
elected—
(A) the remedy described in paragraph (3)(A) if such person has timely filed
a notice of appeal under the applicable appellate procedures;
(B) the remedy described in paragraph (3)(B) if such person has timely filed
a grievance in writing, in accordance with the provisions of the parties’
negotiated procedure; or
(C) the remedy described in paragraph (3)(C) if such person has sought
corrective action from the Office of Special Counsel by making an
allegation under section 1214(a)(1).
(h) Settlements and awards under this chapter shall be subject to the limitations
in section 5596(b)(4) of this title.
(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1211; amended Pub. L.
103–424, § 9, Oct. 29, 1994, 108 Stat. 4365; Pub. L. 105–261, div. A, title XI, § 1104(b),
Oct. 17, 1998, 112 Stat. 2142.)
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