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Investigation, threat of discipline for filing false EEOC report not retaliation

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Affirming summary judgment in favor of a county sheriff’s department on the retaliation claims of several white officers who complained to the EEOC of racial harassment, the Second Circuit found that, on the facts of this case, which “may be a tad unusual,” the decision was proper. Though the officers filed an internal complaint that an African-American deputy asked them why they shaved their heads and started rumors that they were “skinheads,” they later claimed in their EEOC charge that he confronted them and accused them of being “skinheads.” While they established a prima facie case of retaliation, when taken in the context of a work environment tinged with racial tensions and in light of the employer’s duty to investigate and remedy racial harassment and their general duty not to file false reports, the court found that their claims failed as a matter of law (Cox v Onondaga County Sheriff’s Department, July 23, 2014, Winter, R). The five officers shaved their heads to show solidarity with a coworker who was undergoing chemotherapy. They filed an internal departmental complaint alleging racial harassment based on questions about their hair and rumors that they were “skinheads.” They singled out one officer, the African-American deputy, whom they alleged started the rumors. Their internal complaint did not indicate that the interactions had been accusatory or confrontational in nature. Nevertheless, they indicated that the rumors had created a “racially hostile and unsafe” workplace and put their families in danger. A captain investigated the allegations and found no evidence of harassment. (One of the officers withdrew as a complainant prior to its resolution.) First EEOC complaints. Subsequently, the remaining officers filed EEOC complaints, under oath, claiming that an African-American deputy had, in a face-to-face confrontation, accused them of being skinheads. They appeared to “all but expressly” reference the same deputy they had accused in the internal complaint. The employer filed a response with the EEOC, indicating that it found no merit in the harassment claim and noting that the entire investigation package had been submitted to its professional standards unit (PSU) for review. PSU investigation. The EEOC dismissed the complaints and the employer’s PSU continued its investigation. In addition to investigating the incidents, it also investigated the assistant chief’s allegation that the complaining officers engaged in misconduct by filing false reports and an allegation that the original investigator also made a false report regarding the investigation. Complicating the investigation was the fact that the African-American deputy had previously prevailed in a lawsuit against the department alleging a hostile work environment and retaliation. During the PSU investigation, the employees did not claim to have heard any officer say that they were skinheads, although they did assert that several officers made inquiries. Some officers testified that there were rumors that the deputy had started the rumors, but he denied having done so. He also stated during an interview that the matter was putting undue stress on him. Although the officers were told that disciplinary action was being considered against them because of the EEOC filings, they were not disciplined. Still, the PSU found a violation by two of the officers, and the captain who had initially investigated the matter was demoted. Second EEOC complaints and suit. The officers filed additional EEOC charges related to the PSU investigation and threats of false reports. The EEOC found evidence of retaliation and issued a right to sue notice. The officers filed suit, alleging a hostile work environment and retaliation. The lower court dismissed claims asserted under Sec. 1981, as well as their Title VII HWE claims. The remaining claims were later dismissed by grant of summary judgment — the court found that they failed to establish that they suffered an adverse action. The officers appealed. Threats of false report charges. It was “fairly obvious” to the appeals court that the officers made out a prima facie case of retaliation based on the threats of false report charges. However, the employer met its burden of providing a non-retaliatory reason for the threat based on the “unusual” facts of this case. Discipline-related statements about the charges were “completely reasonable in light of the record,” the court explained, because the officers had given materially inconsistent statements regarding the deputy’s behavior. Those statements ranged from describing him as asking about their shaved heads to accusing them of being skinheads. The latter accusation, based on the record, was “false, and seemingly intentionally so” and formed the basis of a misconduct complaint. Therefore, it was “in fact fair” to the officers to inform them of the possible results of the investigation. Complaints about deputy could be seen as harassment. The court was also influenced by the fact that the officers’ claims of racial harassment were made in the context of a department that had racial tensions and the fact that the claims, themselves, could reasonably be seen as racial harassment of the deputy. In fact, his testimony indicated that he felt harassed and the PSU investigation report noted that he felt “undue stress” because of it. Noting that the employer was under a duty to investigate potential racial harassment by lower-level employees, the court explained that it would be “anomalous to conclude that an employer is not allowed to investigate, with a view to discipline, false complaints of harassment that themselves might be viewed as intended as racial harassment.” Also supporting its decision was the fact that the employer had a policy regarding false reporting and that false charges could create credibility issues in other, unrelated cases. Where the officers had not presented any other evidence that the warning was intended to be retaliatory, they did not meet their ultimate burden of proof. Adverse actions? They also contended that multiple aspects of the PSU investigation amounted to adverse actions, including that: (1) the investigation was handled by the PSU, rather than internally; (2) the interview of the deputy was less confrontational; (3) the PSU was more concerned about the captain’s failings than the substance of their allegations; and (4) their request for a copy of the PSU report had been denied. These latter two alleged adverse actions the appeals court found to be frivolous. As for the questioning of the deputy, even assuming it was different, the court noted that there were “sound reasons” for the difference. His interview occurred after interviews with the officers had shown that no one had seen or heard him make the alleged remarks. As for the fact that the PSU conducted the investigation, the court noted that the written policy of the sheriff’s department authorized such an investigation at the chief’s discretion. Investigation was not retaliation. Regarding the fact that the employer conducted the PSU investigation in the first place, the court explained that under these circumstances, the investigation did not amount to an adverse employment action. It noted that such an investigation could amount to a “cognizable retaliatory action” in certain circumstances, i.e., when “carried out so as to result in a hostile work environment, constructive discharge, or other employment consequences of a negative nature, or if conducted in such an egregious manner as to ‘dissuade a reasonable worker from making or supporting a charge of discrimination;’” however, those circumstances did not apply here. “[W]ithout more,” the employer’s investigation of an employee’s EEOC complaint regarding racial harassment could not sustain a valid retaliation complaint. Indeed, although the employer was not required to do so by the relevant statutory provisions, such an investigation was clearly contemplated by the regulations. Employers must be allowed to inform themselves “of all facts relevant to an EEOC complaint” and are “sometimes asked to present their view of the facts.” Failure to do so might also be viewed as “evidence of an indifference to racial discrimination, if not acquiescence in it.” In fact, the court explained, “we can say with confidence that the law must give breathing room for such investigations to be carried out.”
By Brandi O. Brown, J.D.

Entry-level accountants were overtime-exempt learned professionals

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Entry-level accountants at a major accounting firm were learned professionals exempt from the FLSA’s overtime provisions, ruled the Second Circuit. Noting that the employees received substantial, specialized education as accountants, were designated as accountants by their employer, performed entry‐level accounting tasks, and were automatically promoted to a more senior accounting position after two years of satisfactory employment, the appeals court concluded that they qualified for the exemption. Further, they acted in a manner that reflected the knowledge and required judgment characteristic of work in that profession (Pippins v KPMG LLP, July 22, 2014, Lynch, G). The employees worked as “audit associates” at KPMG. They brought an FLSA collective action alleging that they regularly worked more than 40 hours per week but did not receive overtime compensation. KPMG countered that the employees worked as accountants, one of the learned professions specifically identified in the regulations, 29 C.F.R. Secs. 541.301(c), (e)(5), as “a field of science or learning,” so they were exempt from the FLSA’s overtime provisions. A district court concluded that because they were employed as accountants, the employees were exempt from the FLSA overtime provisions, and granted KPMG’s motion for summary judgment. The employees timely appealed. Professional exemption. To qualify for the FLSA’s “learned professional” exemption, “an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.” The defining regulations impose a three‐pronged test to determine whether a primary duty qualifies for the exemption: the work must be (1) “predominantly intellectual in character, and . . . require the consistent exercise of discretion and judgment;” (2) in a “field of science or learning,” which includes accounting; and (3) of a type where “specialized academic training is a standard prerequisite for entrance into the profession.” All three prongs must be satisfied for the learned professional exemption to apply. Here, the employees did not dispute that they worked in the field of accounting, and that the second requirement for application of the exemption was satisfied. However, they contended that the other two requirements were not satisfied, arguing that their work does not require specialized academic training or involve the consistent exercise of advanced knowledge or professional judgment. Specifically, the employees contended that they received all the training necessary to perform their function after their arrival at KMPG, rather than through a prior course of intellectual instruction, and that they did not exercise specialized knowledge or professional discretion in performing their duties because they primarily performed low‐level, routine work. Learned professional. The parties agree that audit associates’ work is primarily concerned with tasks that contribute to the production of work product characteristic of the profession of accountancy. What the parties disputed was whether their work was so “pre-determined,” and whether supervision and review of work product by more senior employees was so pervasive that they never exercised the professional judgment characteristic of accountancy. Further, the parties disputed the extent to which the training, or the work actually performed by audit associates, was based on or required the educational background possessed by those hired for the job. The court noted the regulation explicitly identified “certified public accountants” and those who perform similar jobs duties as learned professionals. Thus, if the employees actually performed work in such capacity, there was little doubt that their work was “predominantly intellectual” for purposes of the exemption. Discretion and judgment. Comparing discretion and judgment in the context of the administrative exemption as opposed to the professional exemption, the Second Circuit concluded that a worker’s application of broad discretion in the course of general corporate decision‐making is of a different character than the professional discretion based on expertise in a particular field that is characteristic of the learned professions. Learned professionals need not exercise management authority to operate as professionals; what matters is whether they exercise intellectual judgment within the domain of their particular expertise. The court further noted that while administrative employees must show “independent judgment” to qualify for the exemption, the definition of the learned profession exemption omits that requirement. More importantly, the Secretary of Labor has recognized that the discretion and judgment standard for the professional exemption is “less stringent” than the discretion and independent judgment standard of the administrative exemption. Advanced knowledge. Turning next to the substance of the professional exemption’s “advanced knowledge” requirement, the Second Circuit observed as an initial matter that it had not yet had an occasion to elaborate on the meaning of this prong of the learned professional exemption. Central to the inquiry are “the importance of the duties, the frequency with which they require the employee to exercise discretion, and the relative freedom of the employee from supervision, as well as the percentage of time the employee spends performing them.” Analogous cases suggest that employees apply discretion in the application of advanced knowledge when they interpret and analyze information central to the practice of the profession. Application of advanced knowledge takes one of two forms: substantive interpretation of data; or meaningful decision‐making capacity characteristic of a member of the profession. Workers may be found to exercise professional judgment even when their discretion in performing their core duties is constrained by formal guidelines, or when ultimate judgment is deferred to higher authorities. Thus, the appeals court concluded, the learned professional exemption applies if employees rely on advanced knowledge of their specialty to exercise discretion and judgment that is characteristic of their field of intellectual endeavor. Qualities of work. Because the accounting profession was explicitly identified in the FLSA regulations, the appeals court concluded that it was not necessary to inquire whether accountancy had a sufficiently intellectual character to qualify as a learned profession. Rather, it had only to identify what qualities are characteristic of the work of an accountant. In order to qualify as professional accountants, employees’ “primary duty” must be the deployment of “professional” skepticism” to ensure the integrity of the financial accounting process, and their individual tasks must typically involve the exercise of such skepticism. However, the occasional exercise of such judgment, which does not constitute a primary duty, will not suffice. Nor will an employee who deals with the tabulation of data demonstrate professional skepticism merely by noting and reporting irregularities or errors in the process of tabulation. The employees acknowledged that audit associates were expected to practice professional skepticism in the discharge of their duties. Here, the facts demonstrated that they practiced professional skepticism in the sense of the judgment characteristic of accountants. Contrary to the employees’ contention that they never employed advanced knowledge in their work, the agreed-upon facts indicated that judgment of the type characteristic of trained accountants was at least sometimes a part of their work. Audit associates occasionally occupied leadership roles, and a review of their typical tasks revealed that they regularly relied on advanced knowledge of accountancy and practiced the judgment and discretion characteristic of their profession.
By Ronald Miller, J.D.

Separation from — or firing — harasser not reasonable accommodation for anxiety

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The harassment-triggered anxiety of an employee was a “disability” under a post-ADAAA analysis (but not as to pre-ADAAA events), ruled a federal district court in New York. However, summary judgment was granted on his non-accommodation claim because the employer’s attempts to separate the employee from his foreman did not work, and getting rid of the foreman would not be a “reasonable” accommodation. The employee’s hostile work environment claim also failed because he did not show he was singled out for harassment based on a disability (Whalen v City of Syracuse, July 15, 2014, Kahn, L). “Horseplay.” The long-time public works employee had known the foreman of his work crew since he was 17 years old. Since the late 1990’s, the two had a series of workplace conflicts. In one, the foreman allegedly ordered the employee to do work without adequate compensation and then verbally abused him when he refused. In July 2007, the foreman allegedly assaulted the employee in front of coworkers, though the employee struck back. The employee obtained workers’ comp based on the incident and filed a grievance with his union. After investigating, the employer concluded the employee was the victim of horseplay that violated its work rules. In a January 9, 2008, letter, the employee’s doctor stated that the employee suffered from anxiety and depression that developed after “a workplace alteration” and would “continue to persist in association with continued workplace strife.” It noted that the employee required medication and psychotherapy. After another physical altercation in July 2008 that resulted in the employee being suspended for five days (reduced to three days after a union grievance was filed), the employee requested work assignments that would not bring him into contact with that foreman. The employer tried to accommodate him but it could not keep the two completely separate due to the nature their work. According to the employee, the harassment continued. He filed suit under the ADA alleging failure to accommodate and hostile work environment. No disability pre-ADAAA. Noting that the ADAAA, which substantially revised the definition of “disability,” took effect January 1, 2009, the court bifurcated its analysis and concluded that before that date, the employee was not “disabled” within the meaning of the ADA. He did not offer any proof that his anxiety and depression significantly restricted his ability to perform a broad class of jobs but only asserted that he was limited in his ability to work as a laborer for the city. That was not enough to show an actual disability under the pre-2009 definition. Nor did the employee show that he had a record of a disability that limited his ability to work in a broad class of jobs, because his six months of medical leave following his workers’ comp award was too short a duration to constitute a substantially limiting impairment, the court found. Similarly, he offered no evidence that the employer regarded him as incapable of performing a broad class of jobs. The fact that it occasionally changed his assignments when he could not operate heavy equipment due to medication was not, on its own, enough to support a “regarded as” claim. Because the employee failed to show he was disabled under the pre-2009 ADA, his reasonable accommodation claim failed to the extent it was based on pre-2009 actions. Disability and accommodations under ADAAA. After explaining how the ADAAA expanded the definition of disability, the court found that the employee’s anxiety and depression “clearly” satisfied the actual disability prong. It therefore continued its analysis and found that no rational factfinder could determine that the employer failed to make reasonable accommodations that would allow the employee to do his job. Notably, the employee did not allege that the employer totally failed to accommodate him. Indeed, the record established that it let him take medical leave when he could not operate heavy machinery due to medication. The essence of the employee’s claim, explained the court, was that being with the harassing foreman triggered his anxiety and depression, and the employer failed to accommodate this aspect of his disability. However, he did not identify a reasonable accommodation that would allow him to do the essential functions of his job. He requested that the foreman be kept away from him but, even assuming that was reasonable, that would not allow the employee to do his job. Indeed, it was undisputed that the employer tried to separate the two but failed because the harassment allegedly continued and the employee sometimes requested the crew on which the foreman worked (on one occasion, he filed a grievance when the employer refused). It appeared to the court that the only action the employer could have taken to enable to the employee to do his job would be to remove the foreman from its employ but “such drastic personnel action is presumptively unreasonable.” For these reasons, summary judgment was granted on the ADA failure to accommodate claim. Hostile work environment. Again proceeding with only the post-2009 conduct since the employee was not “disabled” under the pre-ADAAA definition, the court noted a “confusing overlap” between the failure to accommodate and the HWE claims. With the former, the exposure to the alleged harasser as a trigger for anxiety and depression was the disability to be accommodated, but with the HWE claim, the disability was the anxiety and depression and the exposure to the alleged harasser was the alleged adverse action. Thus, the harassment was irrelevant to whether the employee was a “qualified individual.” With that in mind, the court concluded that the employee appeared to be a qualified individual under the ADA for purposes of his HWE claim, given the employer’s statement that it accommodated him by allowing him to take medical leave when he couldn’t operate heavy machinery and his impairments did not otherwise prevent him from doing his job. Nonetheless, his HWE claim still failed because he provided nothing but conclusory allegations that he was singled out and subjected to a hostile work environment because of his anxiety and depression. Indeed, his allegations suggested that many other employees were also subjected to harassment by the same foreman. Summary judgment was thus granted on the HWE claim.

By Lorene D. Park, J.D.

Military women sexually assaulted by colleagues find no recourse in civilian court

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Affirming the dismissal of Constitutional claims by members of the U.S. Navy and Marine Corps against government officials based on the alleged rape and sexual assault they suffered at the hands of fellow service members, a D.C. Circuit panel concluded that they could not assert a Bivens action because the alleged misconduct was “incident to service,” and because Congress had legislated extensively on the issue but had not authorized this type of lawsuit (Klay v Panetta, July 18, 2014, Griffith). Twelve current and former members of the U.S. Navy and Marine Corps alleged that, during their service, eleven were either raped or sexually assaulted by fellow members of the armed services and another was the target of severe sexual harassment. As a result, the plaintiffs suffered from a range of serious physical and psychological injuries that were allegedly compounded by retaliation suffered when they reported what had happened to their superiors. For example, one plaintiff who served as a hospital corpsman was raped in the operating room. Although the attacker was convicted and sent to prison, the employee was no longer allowed to work in enclosed spaces with male colleagues. This was supposedly for her protection but it left her feeling ostracized by shipmates. She also began receiving negative performance reviews and was eventually told by her commander that it would be best for “morale” if she left the ship. She transferred to another duty station but the retaliation continued when her new chain of command learned about the rape and ongoing investigation. Lawsuit. The plaintiffs filed suit against nine defendants: the three most recent Secretaries of Defense, Secretaries of the Navy, and Commandants of the Marine Corps. They alleged that their injuries resulted from the acts and omissions of these defendants, who were aware of the prevalence of sexual misconduct and retaliation in the Navy and Marine Corps, had the power to eliminate it, and yet failed to do so. They also identified practices by the defendants that contributed to the hostile environment, including granting “moral waivers” that let recruits with criminal convictions serve, allowing commanders to interfere in investigations, and allowing perpetrators to receive nonjudicial punishment and be honorably discharged. In addition, the plaintiffs alleged that the Secretaries of Defense flatly ignored statutory mandates from Congress requiring the establishment of a commission to investigate the military’s treatment of sexual misconduct allegations and the creation of a centralized database of sexual assault incidents. However, the plaintiffs did not allege the misconduct ran afoul of a federal statute authorizing them to recover damages. Instead, they alleged violations of their Fifth Amendment rights to bodily integrity, due process, and equal protection; a First Amendment right to speak about their assaults without retaliation; and a Seventh Amendment right to have juries try their assailants. Dismissing their suit, the district court concluded that it lacked the power to provide the remedy sought because their suit for damages under Bivens was foreclosed by Supreme Court precedent disallowing such a remedy “for injuries that arise out of or are in the course of activity incident to [military] service.” Bivens actions. Affirming, the D.C. Circuit panel explained the history of Bivens, which recognized an implied private cause of action for damages against federal officials who violate the Fourth Amendment. The appeals court noted that there has been an unwillingness to extend Bivens liability to new categories of defendants and noted that this unwillingness derives from the High Court’s shift toward disfavoring judicially implied causes of action generally. That said, the court described the two-step analysis for determining if a Bivens remedy is available. First, courts ask if any alternative remedy exists to protect the interest and, if not, courts make a remedial determination and evaluate whether any special factors counsel hesitation before authorizing a new kind of federal litigation. Here, the appeals court assumed that there is not alternative remedy for the plaintiffs here and concluded that their would-be Bivens action nonetheless failed at the second step of the analysis. Specifically, both the military context of the claims and Congress’s extensive legislation on this specific issue counseled decisively against authorizing the Bivens remedy. “Incident to service.” Pointing to the Supreme Court’s decision in United States v Stanley, the appellate panel explained that no Bivens remedy is available for injuries that “arise out of or are in the course of activity incident to service.” Here, while the plaintiffs correctly argued that it was inconceivable that they were assaulted “to advance a military mission,” that was not the key inquiry. Instead, courts ask whether the suit requires a civilian court to second-guess military decisions and whether the suit might impair essential military discipline. The court does not focus narrowly on the conduct that proximately caused the harm but rather takes a broader view. “If adjudicating the case would require military leaders to defend their professional management choices — ‘to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions,’ — then the claim is barred by the “incident to service’ test.” Here, the plaintiffs’ suit “invites a civilian court to adjudicate, for example, whether it was proper for the defendants to permit felons to serve in the military, commanders to use nonjudicial punishment on offenders, offenders to be honorably discharged, and military (rather than civilian) authorities to investigate and prosecute sexual assaults. This is precisely the kind of ‘judicial inquiry into, and hence intrusion upon, military matters’ that the Supreme Court disavowed in Stanley,” stated the appeals court. Congress’ activity in the field. Also of significance was the fact that Congress has legislated pervasively in the field; it “has been ‘no idle bystander to th[e] debate’ about sexual assault in the military,” wrote the court. The appeals court pointed to the four most recent National Defense Authorization Acts, which included numerous provisions aimed at combating the issue. “Given that Congress is extensively engaged with the problem of sexual assault in the military but has chosen not to create such a cause of action, we decline to imply a Bivens remedy here, even in the face of plaintiffs’ allegations of statutory violations.” – See more at: http://www.employmentlawdaily.com/index.php/news/military-women-sexually-assaulted-by-colleagues-find-no-recourse-in-civilian-court/#sthash.1cUxTS8i.dpuf
By Lorene D. Park, J.D.

Resignation to avoid involuntary psychiatric commitment may be constructive discharge

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A nurse who resigned after being informed that she would be suspended for 30 days with pay and immediately escorted to drug screening and three-day inpatient psychiatric hospitalization stated a claim for constructive discharge, ruled the Fifth Circuit in a unpublished decision. Where the employee was faced with involuntary psychiatric commitment and denied an opportunity to consider her options or speak to someone, such facts could lead to the plausible inference that an HR director was motivated by a desire to force the employee’s resignation in order to avoid pre-termination procedures.  Thus, the appeals court reversed the district court’s grant of the HR director’s motion to dismiss the employee’s procedural due process claim (LeBeouf v Manning, July 15, 2014, per curiam).

The nurse worked for a public hospital for 25 years. Without explanation, she was informed by the hospital’s HR director that she would be suspended for 30 days with pay and immediately escorted to drug screening and three-day, involuntary, inpatient psychiatric hospitalization. After the employee agreed to the drug screening but resisted the psychiatric commitment, the director gave her three options: (1) accept the suspension, submit to the drug screening, and participate in the psychiatric hospitalization; (2) resign; or (3) be terminated. The employer denied her time to consider her options. The employee resigned, then sued the hospital and HR director under Sec. 1983 for constructive discharge without due process of law. According to the employee, the HR director presented no evidence that she had consumed any alcoholic beverages, had taken illegal drugs, was otherwise chemically impaired, or was a threat to herself or others. The district court concluded that the employee failed to state a claim for relief and entered judgment in favor of the HR director.

On appeal, the parties agreed that the employee was a classified civil service employee with permanent status who had a property interest in her position at the hospital and therefore was entitled to due process protection. However, they disagreed as to whether her complaint demonstrated that she resigned or was constructively discharged.

Constructive discharge. Establishing constructive discharge generally requires a plaintiff to show that her employer made her “working conditions so intolerable that a reasonable employee would feel compelled to resign.” The Fifth Circuit has observed that a constructive discharge occurs where it can be shown that an employee is subject to badgering, harassment, or humiliation calculated to encourage the employee to resign. Further, “[c]onstructive discharge in a procedural due process case constitutes a Sec. 1983 claim only if it amounts to forced discharge to avoid affording pretermination hearing procedures.”

Here, an objectively reasonable person in the employee’s position could feel that the HR director created an intolerable working environment when he informed her that she would be immediately committed to a three-day psychiatric hospital. Psychiatric commitment under Louisiana law generally requires “clear and convincing evidence that [an individual] is dangerous to self or others or is gravely disabled, as a result of substance abuse or mental illness.” The HR director provided no explanation to the employee why she would be committed or why such commitment was necessary in light of the fact that she was not protesting the drug test or suspension. Therefore, the situation allegedly created by the HR director constituted the type of harassment that results in an intolerable working environment such that a reasonable employee would be forced to choose between voluntary resignation or forced termination.

Moreover, it was plausible to infer that the HR director’s actions were motivated by his desire to secure the employee’s resignation and avoid affording her pre-termination proceedings. As HR director, he was aware of Louisiana’s civil service requirement that the employee receive a pre-termination hearing if she did not voluntarily resign. Further, he refused her request for time to consider her options or speak to someone else concerning her decision to be terminated, resign, or submit to the psychiatric commitment. Thus, the appeals court concluded that the employee’s complaint plausibly established that she was constructively discharged. Based on this alleged constructive discharge, the employee set forth a plausible procedural due process claim, as she did not receive either notice or an opportunity to respond to any alleged misconduct prior to her discharge.

- See more at: http://www.employmentlawdaily.com/index.php/news/resignation-to-avoid-involuntary-psychiatric-commitment-may-be-constructive-discharge/#sthash.mw0cP294.dpuf

By Ronald Miller, J.D.

Welcome to The Cassis Law Office!

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Welcome!

My name is Bryan Cassis, a labor and employment lawyer based in the beautiful city of Louisville, KY. I have been practicing for nearly twenty years and am deeply passionate about my profession and the clients I have had the pleasure to work with in that time. I am a member of the Kentucky Bar Association, and I love to help meet the needs of my clients. Importantly, I am willing to work with you; I often take cases with no money down, so I only get paid when you win. I truly believe that aligning our incentives creates a great working relationship for both parties.

I will be using this blog to post about current events in the employment and labor law field, as well as updates and press releases for my firm. I will also work to help inform prospective and current clients with some of my insights on the inner workings of the legal profession, to help provide basic guidance to those exploring their options in an increasingly complicated and litigious society.

Bryan