Federal Employees Must Challenge Adverse Employment Actions Pursuant to the Procedural Route Prescribed by the Civil Service Reform Act

On June 11, 2012, in a 6-3 opinion authored by Justice Thomas, the U.S. Supreme Court held that the Civil Service Reform Act of 1978 (CSRA) provides the exclusive avenue to judicial review even when a qualifying federal employee challenges an adverse employment action by arguing that a federal statute is unconstitutional.

In Elgin, et al. v. Department of Treasury, et al., all of the petitioners were male federal employees who were fired for failing to register for the Selective Service. The Military Selective Service Act requires, with few exceptions, that all male U.S. citizens between the ages of 18 and 25 register for the draft. A different federal law bars from civil service anyone who knowingly refused to do so.

Mr. Elgin and the other petitioners challenged their firings in a suit in Federal District Court. They argued that they should not have been fired because the Military Selective Service Act and the federal law barring them from civil service for knowingly refusing to register are unconstitutional. The Federal District Court denied petitioners' constitutional claims on the merits. The First Circuit vacated and remanded with instructions to dismiss for lack of jurisdiction. The First Circuit held that challenges to a removal are not exempt from the CSRA review scheme simply because an employee challenges the constitutionality of the statute authorizing the removal.

The U.S. Supreme Court agreed to hear the case to decide whether the CSRA precludes District Court jurisdiction over the petitioners’ claims even though they are constitutional claims for equitable relief. In other words, the issue was not whether petitioners’ constitutional challenge was correct, but rather how petitioners get to raise their challenge. To that end, the Supreme Court concluded that it is “fairly discernable” from the CSRA’s text, structure and purpose that Congress intended that petitioners must first bring their claims to the Merit Systems Protection Board (MSPB), rather than District Court, even if the MSPB cannot declare a law unconstitutional. The Supreme Court reasoned that even if the MSPB cannot decide a constitutional question, the Federal Circuit that reviews MSPB decisions could. Therefore, there is no reason to believe that Congress meant to allow litigants like petitioners to bypass the procedure it created for most other employment-related claims.

This case is obviously of great interest to federal employers, employees, and their respective representatives. However, it will also be interesting to see what impact, if any, this decision has on future employment-related matters that come before the U.S. Supreme Court.

Contact: Alexander Kipp


Proving Disability Discrimination Just Got Easier for Employees in the Sixth Circuit

The Sixth Circuit Court of Appeals recently made it easier for Ohio employees to prove a claim of discrimination under the Americans with Disabilities Act (ADA). The court reversed 17-year-old precedent and found the “but for” causation standard appropriate for ADA claims.

In Lewis v. Humboldt Acquisition Corp., No. 09-6381 (6th Cir. May 25, 2012), the employer terminated the plaintiff from her position as a registered nurse at one of the employer’s retirement homes. The plaintiff sued the employer under the ADA, claiming that the employer fired her because she had a medical condition that made it difficult for her to walk and that occasionally required her to use a wheelchair. The employer responded that it terminated the plaintiff based on an outburst at work in which she allegedly yelled, used profanity and criticized her supervisors.

When it came time to present her ADA claim to a jury, the plaintiff asked the court to instruct the jury that she could prevail if her disability was a “motivating factor” in the employer’s decision to terminate her. The employer asked the court to instruct the jury that the plaintiff could prevail only if the employer’s decision was “solely” because of the plaintiff’s disability. In requesting this instruction, the employer relied on 17 years of Sixth Circuit precedent requiring courts to instruct juries that ADA claimants may win only if they show that their disability was the “sole” reason for any adverse employment action against them.

The court rejected both approaches. It held that the plaintiff was required to show her disability was a “but for” cause of the employer’s decision to terminate her. In other words, the plaintiff was required to prove that “but for” her disability, her employer would not have terminated her. The court noted that its previous interpretation of the ADA was out of sync with the other circuits, none of which use the “sole” reason test.

With this decision, the Sixth Circuit reversed 17 years of precedent and eased the burden for employees bringing discrimination claims under the ADA. The court’s decision puts it in line with other federal circuits, but it is undoubtedly a loss for employers in the Sixth Circuit who will likely see an uptick in ADA claims.

Contact: Nathan Pangrace


Extra Precautions for Ohio Industrial Commission Hearings When All Three of the Members are Not Present

A recent Tenth District Court of Appeals for the State of Ohio case addressed a rarely seen issue involving third-level Ohio Industrial Commission hearings, specifically those set in front of the three commissioners. The case of State ex rel. Evert v. Indus. Comm., 2012-Ohio-2404 was decided on May 31, 2012, and involved a death claim and the widow’s request on behalf of her late husband for the functional loss of use of all four of his extremities. In its own right, the issue appears to have been quite compelling, but the focus for the Court of Appeals was in fact a procedural issue. At stake procedurally was the validity of a Commission decision when all of the members were not present and a reviewable record was not kept.

As part of the appeal, the magistrate issued a decision highlighting the relevant facts. Of note, the Commission held a hearing with only two of its three members in attendance. In the subsequent commission order, there was a split decision between the two attending members, with the non-attending member casting the deciding vote. The non-attending commissioner claimed she reviewed a summary of “the testimony and arguments” presented by the parties. No actual transcript or audio recording of the hearing existed.

In its decision, the court focused on the fact that it could not know from the record before it what happened at the hearing attended only by two commissioners. In highlighting the importance of due process and impartiality by the commissioners, the court agreed with the magistrate’s recommendation that the Commission be ordered to conduct a new hearing with all members in attendance or at which a reviewable record is kept.



Professional Athletes and Workers’ Compensation Claims

Although they are not conventional employees, professional athletes do sustain on-the-job injuries and are, therefore, eligible to file for workers’ compensation benefits. One big question that remains is where they are eligible to file a claim.

During the recent labor discord between the National Football League (NFL) and the NFL Players Association, one of the big battles concerned workers’ compensation rights. The issue that distressed owners most was the ability of retired players to forum shop in hopes of getting the most money in compensation.

California has long allowed retired NFL players to file workers’ compensation claims so long as they played at least one game in their career within the state. California allowed such limited contacts as a way of protecting transient workers like truck drivers, but professional athletes have been able to benefit as well. Players elect to file in California because the state generally provides higher workers’ compensation benefit payouts than many other states. Additionally, the statute of limitations is longer in California, and players are filing years after they have retired.

To prevent such forum shopping, some teams are including forum selection clauses in player contracts to ensure that workers’ compensation claims are limited to a certain state. One such team, the Cincinnati Bengals, a self-ensuring Ohio employer, recently received a favorable decision from the California Workers’ Compensation Appeals Board (WCAB) that enforced such a clause. The case, Booker v Cincinnati Bengals, Case No. ADJ4661829 (May 1, 2012), held that such forum selection provisions contained in player contracts are valid and should be enforced if reasonable. The WCAB ruled that the choice-of-forum provision at issue in Booker was reasonable and effective in a case involving an NFL player who played for the Bengals and submitted a claim for cumulative injuries in California. In this case, Ohio was to be the exclusive forum for all claims.

Ohio itself has also been in the news recently as it, like many other states, is taking steps to clarify the forum in which professional athletes may bring workers’ compensation claims. An amendment to O.R.C. 4123.54 allows for coverage of professional athletes and coaches through league-sponsored policies where collective bargaining rules call for uniform administration of workers' compensation and benefits, or where the players are employees of a single-entity league and that league maintains workers' compensation coverage for its players and coaches. If proof of such coverage is provided to the administrator of the Bureau of Workers’ Compensation in either circumstance, then the laws of the state where the policy is issued are the exclusive remedy for injuries, occupational diseases and death claims by a player, coach or his/her family or dependents.

This is a brief glimpse into the interesting world of professional sports and workers’ compensation. Should you have any questions, please contact any of our offices to discuss with one of our workers’ compensation attorneys.



Ohio State Senator Introduces Legislation to Prohibit Employers from Requiring Workers or Applicants to Provide Access to Private Electronic Accounts

On the heels of numerous other states and the United States Senate, on May 24, 2012, Ohio State Senator Charleta Tavares (D-Columbus) introduced legislation that would prohibit employers or prospective employers from asking for or requiring the disclosure of passwords to private electronic accounts or from requesting or requiring access to those accounts. The bill seeks to amend certain provisions of Ohio Revised Code Chapter 4112, the Ohio Civil Rights Act; and, in addition to the penalties already provided for in the statute, imposes a fine for violations of the password disclosure provision ($1,000 for the first offense and $2,000 for each subsequent offense). The bill also provides for a complaint procedure to the Ohio Civil Rights Commission by employees who have been asked or required to disclose passwords.

While the evidence of employers requiring applicants or employees to turn over passwords to sites such as Facebook is largely anecdotal and probably sensationalized, the federal and state governments have sprung into action. Maryland has already passed a law banning employers from requesting social media account passwords, but approximately a dozen more states have similar legislation pending, with Illinois and Delaware close to enacting. On May 9, the Password Protection Act of 2012 was introduced via companion bills in the U.S. House and Senate, which would also bar employers from demanding access to password-protected accounts as a condition of hire or employment.

Whether one feels such legislation is justified or questions if state and federal governments have more important issues to address, the trend of such legislation appears unlikely to abate.

Contact: Karen Adinolfi


Genetic Discrimination: When an Isolated Incident is not Enough

On May 23, 2012, a Kentucky federal court ruled that the Equal Employment Opportunity Commission (EEOC) was not entitled to enforce an investigative subpoena seeking disclosure regarding the acquisition of genetic information of employees at a Nestlé Prepared Foods facility. EEOC v. Nestlé Prepared Foods, No. 5:11-mc-00358 (E.D. KY May 23, 2012). The EEOC issued the subpoena requesting documents that would show the name and contact information of each physician to whom Nestlé referred individuals for physical or medical examinations, and documents revealing the individuals subjected to fitness-for-duty or post-offer exams with reasons for why there were or were not hired. The EEOC issued the subpoena while investigating a charge filed by Michael Peel after he was fired by Nestlé after he completed a fitness-for-duty evaluation by a private physician retained by the company.

During the evaluation, Peel was instructed to complete a family medical history questionnaire that required him to reveal specific medical conditions. Peel was later fired within the same month of the evaluation for allegedly taking excessive breaks from work. Peel alleged discrimination based on retaliation, disability and specifically, genetic information in violation of the Genetic Information Nondiscrimination Act (GINA).

Nestlé refused to comply with the subpoena and filed a petition with the EEOC to revoke it. The court acknowledged that while it is important for the EEOC to have “the ability to investigate possible patterns of discriminatory action,” not every charge of discrimination “justifies an investigation of the employer’s facility-wide employment practices.” Judge Joseph M. Hood noted that “the U.S. Supreme Court has cautioned that limits be imposed” and the court “is not persuaded that it has free rein to conduct a broad, company-wide investigation based on a single allegation of an isolated act of discrimination.” The EEOC argued that other discrimination charges would flow from Nestlé’s practices, but ultimately were unable to provide information on systemic genetic discrimination to persuade the court to enforce the subpoena. Had there been a visible pattern, such as the filing of charges by multiple employees, the court’s outcome would have likely been different.