October Newsletter (Issue 10-2015)

img_0046October Newsletter (Issue 10-2015)

MOPERM Policy Does Not Cover Sexual Misconduct

Scott Edwards served as a tracker for Lincoln County’s drug court.  Edwards supervised drug court participants.  In 2012, Edwards pled guilty to three felony counts and two misdemeanor counts of violations under federal law, including aggravated sexual abuse and kidnapping, for acts that occurred while he was acting as a drug court tracker.  Claimants, all young, female, drug court participants, were under Edwards’s supervision filed a petition for damages under 42 U.S.C. § 1983 against Edwards in the United States District Court for the Eastern District of Missouri.  In the suit, Claimants alleged that Edwards misused his position as a drug court tracker to coerce them into sexual acts.

After Claimants filed their 42 U.S.C. § 1983 case, MOPERM filed a suit in Cole County Circuit Court seeking a declaration that it had no duty to defend or indemnify Edwards for the claims asserted in the federal case because he is not a covered party under the memorandum of coverage.  MOPERM then filed a motion for summary judgment.  The MOPERM policy defines a “covered party” to include “[a]ny employee or authorized volunteer of the Member Agency while acting within the course and scope of their duties.”

The trial court sustained the motion for summary judgment on the grounds that Edwards is not a “covered party” because he was not acting within the course and scope of his employment when he committed the acts of sexual misconduct alleged in Claimants’ federal case and Edwards appealed to the Western District.

The Western District affirmed because whether an act “…was committed within the scope and course of employment is not measured by the time or motive of the conduct, but whether it was done by virtue of the employment and in furtherance of the business or interest of the employer.”  Sexual misconduct is not in the furtherance of the business or interest of the employer.  Missouri Public Entity Risk Management Funds (MOPERM) v. S.M., K.W., C.A. f/k/a C.H., JANE POE, K.S., and L. M., (WD78286, 8/18/15)

Employee Can Prove Lifting Requirement for Pregnant Women Is Discriminatory By Using McDonald Douglas Burden Shifting Test

Young was a part-time driver for respondent United Parcel Service (UPS).  When she became pregnant, her doctor advised her that she should not lift more than 20 pounds.  UPS required drivers like Young to be able to lift up to 70 pounds.  UPS told Young that she could not work while under a lifting restriction.

Young subsequently filed a federal lawsuit, claiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction.  She brought a disparate-treatment claim of discrimination under Title VII prohibition against sex discrimination.  Sex discrimination may be proven either by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or by using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green.

Under that framework, the plaintiff has “the initial burden” of “establishing a prima facie case” of discrimination.  If she carries her burden, the employer must have an opportunity “to articulate some legitimate, non-discriminatory reason[s] for” the difference in treatment.  If the employer articulates such reasons, the plaintiff then has “an opportunity to prove by a preponderance of the evidence that the reasons . . . were a pretext for discrimination.”

After discovery, UPS sought summary judgment.  In reply, Young presented several favorable facts that she believed she could prove.  Young pointed to UPS policies that accommodated workers who were injured on the job, had disabilities covered by the Americans with Disabilities Act of 1990 (ADA), or had lost Department of Transportation (DOT) certifications.  Pursuant to these policies,  Young contended, UPS had accommodated several individuals whose disabilities created work restrictions similar to hers.  She argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous “other persons,” but not for pregnant workers.  UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all “other” relevant “persons.”

The District Court granted UPS summary judgment, concluding that Young could not make out a prima facie case of discrimination under McDonnell Douglas.  The court found that those with whom Young had compared herself, those falling within the on-the-job, DOT, or ADA categories, were too different for comparison purposes.  The Fourth Circuit affirmed and the United States Supreme Court granted certiorari to determine how to apply a provision that requires: “women affected by pregnancy shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

The Court held that “…the Act required courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work.”  The Act required that when an individual plaintiff shows disparate treatment through indirect evidence the courts must consider any legitimate, nondiscriminatory, nonpretextual justification for differences in treatment under the burden shifting test set forth in McDonnell Douglas Corp. v. Green.  The court must determine whether the nature of the employer’s policy and the way in which it burdens pregnant women shows that the employer engaged in intentional discrimination.  The Supreme Court vacated the Court of Appeals judgment for further proceedings. Young v. United Parcel Service, Inc., (U. S., 12–1226, 3/25/15)

Comment Howard: You should consider reviewing HR policies to make sure pregnant workers are not disfavored. For an excellent review of the impact of this case on HR policies you may want to look at an article by Kramer Levin Naftalis & Frankel LLP – Kevin B. Leblang and Robert N. Holtzman at http://www.lexology.com/library/detail.aspx?g=c88ee9a6-67ba-4d37-a255-4ee128765ed8 Since the ADA was amended in 2008 to make it clear that “physical or mental impairments that substantially limits” individuals ability to lift, stand, or bend are ADA covered disabilities, this case may have limited impact in those areas.

Ten Years Of The Roberts Court And Its Impact On State And Local Government

r-JUDGE-ROBE-large570A recent article by Lisa Soronen, from the State and Local Legal Center, provides an excellent review of the Roberts Court over a ten-year period and its impact on local government.  Sometimes it is useful to have a panoramic view with respect to critical issues that affect local government.  This article is well worth your time.



Model Sign And Wearable Body Ordinances

public-safety-is-none-of-yourLocal governments are constantly faced with changing circumstances that require updating old ordinances or developing new ordinances to deal with a variety of political or legal environment.  IMLA has developed a model ordinance for wearable body cameras for law enforcement officers and a model sign ordinance, which is still undergoing revisions.  As a member of IMLA you may sign in and review the third rough draft of the sign ordinance by clicking the following link. http://www.multibriefs.com/briefs/imla/SolicitingComments.pdf

You may review the wearable body camera ordinance by clicking the following link. http://files.ctctcdn.com/96235a6b201/fb857095-b603-474c-839c-a4f92a64a381.pdf

City Of St. Louis Loses Minimum Wage Case At Circuit Court

19-jpgThe St. Louis Business Journal reported on October 14, 2015, that the St. Louis minimum wage law was struck down by the Circuit Court in St Louis.  An appeal is expected.  For more information, click here.


Superintendent Of Liberty School District Cannot Game Retirement System

schoolThe contract of Taveau, the Superintendent of the Liberty School District (District),
provided that, following the end of his term as Superintendent on June 30, 2007, he would serve as a consultant for the District from July 1 to December 31, 2007.  It also provided that Taveau would receive approximately the other half of his salary, split into two payments, for his work as a consultant.  Under the contract Taveau would receive an amount of compensation approximately equal to his full-time annual salary for the 2006-2007 school year, paid over eighteen months, while also receiving his full retirement benefits during that period.

In November 2005, Taveau notified the Retirement System of his “retirement” as of December 31, 2005, and the Retirement System subsequently began paying Taveau his retirement benefits.  Taveau continued to work as the School District’s Superintendent until June 30, 2007. The School District also paid Taveau the consulting fees specified in the contract following the termination of his service as Superintendent.

In 2006, the Retirement System received information indicating that Taveau had continued to work full-time following his purported retirement.  After extensive correspondence, the Retirement System determined in July 2008, that Taveau was not, in fact, entitled to collect retirement benefits during the period from January 1, 2006, through June 30, 2007.  The Retirement System thereafter withheld retirement benefit payments from July 2008 forward, to recover the overpayment of $212,471.

The Retirement System then filed a declaratory judgment petition asking for a declaration that Taveau was not entitled to benefits for the period from January 1, 2006 to June 30, 2007.  The trial court found that the Retirement System was entitled to withhold payments and Taveau appealed to the Western District.

Statute Controls Over Contract

Taveau contended that the terms of his contract with the School District were controlling, which argument was rejected by the Western District. An individual’s employment status in an employment contract, to which the Retirement System was not a party, could not excuse the individual from complying with the requirements of § 169.560 that provided “no such retired certificated teacher shall be employed as a superintendent.”

The Western District also affirmed the trial court’s judgment based upon admissions made to a newspaper reporter that Taveau continued to work full-time following his purported resignation, and that the “consulting fees” he received after the conclusion of the 2006-2007 school year were merely the second half of his compensation for his full-time employment as Superintendent during that school year.  The consulting fee was a sham because Taveau did not do any work as a consultant for his successor as superintendent.

Due Process With Respect to Deduction From Retirement Pay

With respect to Taveau’s claim that he was not afforded due process the Western District held that there was no due process violation because he was afforded an opportunity to explain to the Retirement Board before the Retirement Board took action in a post deprivation hearing that afforded him significant rights.

A pre-deprivation “…process must simply provide an initial check against mistaken decisions – essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.  Specifically . . . where a prompt post-deprivation evidentiary hearing is available, due process requires only that the employee be afforded notice of the charges, an explanation of the employer’s evidence, and an opportunity to present his or her side of the story prior to the deprivation.”

Significant post-deprivation procedures were available to Taveau under 16 CSR 10-1.050.  The rule provides that, once a request for review is made, “review will be held at the next regularly scheduled board meeting that is at least thirty (30) days after the request for review is received.”  Therefore, Taveau’s due process arguments failed.

Detrimental Reliance

The Court rejected the argument by the Taveai that there existed estoppel because it is rarely applied in cases involving a governmental entity, and then only to avoid manifest injustice.  In this case, “Taveau continued his full-time employment despite informing the Retirement System that he had retired and was only performing the limited work permitted by § 169.560, no manifest injustice resulted here.”  In addition, “…individuals should not be allowed to benefit from their own wrongdoing.” The Public School Retirement System Of Missouri v. Taveau, (WD77443, 9/22/15)

Comment Howard: This case has an excellent discussion of what is required for pre-deprivation and post-deprivation procedures well worth your reading.

Mandamus Is Proper Remedy To Require City To Pay In Accordance with its Pay Ordinance

police-cars-2Jerry Scherschel (Employee) was employed by the City of Kansas City (City) as a Security Specialist at a pay grade of “M –G” that had a minimum salary of $2,649 and a maximum of $4,050 per month.  The Employee transferred to another position with the City as an Airport Police Officer designated as a grade of “M–HB” that had a minimum salary of $1,992 per month and a maximum salary of $4,722.  The City Code provided that when an employee moves from a position having a lower maximum rate to one having a higher maximum rate the employee shall receive a pay increase of 10 %.

Prior to transferring the Employee met with an airport official and was asked to sign a memorandum prepared by the aviation Department Director, agreeing to voluntarily accept the position as an Airport Police Officer, understanding that he would take a decrease in his monthly salary from $3,931 to $3341, a reduction of 15% in pay.  The Employee signed the memorandum but later learned that he should have received a 10% increase in pay under the pay provisions in the Code that were in effect at the time he signed the memorandum.

The Employee then wrote a letter in April of 2013, protesting the 15% reduction in pay, requesting that he be paid in accordance with the Code that would have given him a 10% pay increase because his new position had a higher maximum pay, making it a promotion entitling him to a 10% increase in pay.  The Employee recounted a conversation in his letter that he had with an Airport Police Captain at the time he was considering whether or not to transfer to the Airport.  The letter written by the Employee further stated that at the time he accepted the appointment the Code provided ” open” salary ranges for each pay grade.  The Employee stated that he was told he would be required to take a demotion based upon a 2005 Code provision, which he later found out was not in effect at the time he signed the memorandum.

When the City refused to adjust the Employee’s pay in accordance with the Code the Employee filed a writ of mandamus requesting an order be issued by the court requiring the City to perform its ministerial duty by properly classifying his pay rate in accordance with the Code.  The trial court found for the Employee and issued an order to the City to adjust the Employee’s pay grade.  The City appealed to the Western District contending that other provisions of the Code allowed the City to pay within the pay range set forth in the Code and that the Employee waived his argument by signing the memorandum at the time he was transferred.

The Western District held that other provisions of the Code did not give the city discretion to adjust the pay within the pay range because the definition of what constituted a promotion would have been rendered meaningless by the City’s interpretation.  In addition, the Employee did not waive his rights to challenge the voluntary demotion by signing the memorandum.  The Court notes that the City cites no authority to disregard the Code directive addressing mandatory compensation of city employees.

In addition, the “…City’s clear duty to follow the Code does not disappear simply because the Employee was persuaded by misinformation to sign a demotion letter.” The argument by the City that the Order requiring payment based on the Code was in effect a monetary judgment not allowed when you request a writ of mandamus. The Court rejects this argument noting that the Order applied going forward but that it does no prohibit the Employee from bringing a separate lawsuit for back pay. State of Missouri, ex-rel. Scherchel v. City of Kansas City, (WD77951, 9/8/15)

No Writ of Mandamus When There Are Other Adequate Remedies

101192074The Monarch Fire Protection District (District) entered into a collective bargaining agreement (CBA) with the Firefighters Union that contained a management rights provision and a provision, which spelled out the promotion process.  In September of 2013, a captain announced his decision to retire.  The District had a valid list of firefighters, listing the three candidates eligible for promotion to the captains’ position.  The Fire Chief recommended Beauchamp, one of the three persons on the eligibility list, to fill the vacancy.

The Board for the District did not act on the Fire Chief’s recommendation, but instead tabled the filling of the vacancy.  The three persons (Petitioners), who were on the eligibility for promotion, filed a petition for writ of mandamus seeking to compel the District to appoint one of three persons on the eligibility list.  The District filed a response to the petition claiming that the Petitioners failed to state a claim, failed to exhaust their administrative remedies, and that the Petitioners improperly requested the trial court adjudicate contractual rights.

The Petitioners requested that the District apply the arbitration provisions in the collective bargaining agreement but did not request the final step in the arbitration process, which provided for nonbinding arbitration.  The trial court heard the matter and determined that the District had an unequivocal duty to promote one of the three persons on the eligibility list concluding that monetary awards were inadequate to meet the immediate need and that there would be irreparable harm to the Petitioners by not following the promotion procedures.

The Petitioners appealed to the Eastern District, which concluded that mandamus is not available when there is another adequate remedy such as declaratory judgment or breach of contract.  In addition, Petitioner’s allegations of a contractual relationship and expectancy of future privileges “do not support the use of mandamus.” Beauchamp vs. Monarch Fire Protection District (ED102269, 10/13/15)

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