Contact Us
Home
Summary of Selected Employment Civil Rights Issues
A List of Some Possible Causes of Action
Maryland and Federal law create several possible employment causes of action: Race, creed, color, religion, national origin, sexual orientation, marital status, certain physical or mental handicaps, age, gender. In addition to the well known categories listed above, there are numerous other reasons why an employer may not discriminate against an employee. They are as follows: for having filed a worker's compensation case, to avoid paying a pension, for attending jury duty, for engaging in national guard duty, for being subject to a wage garnishment order, for refusing to take a lie detector test, for a juvenile record, for expunged criminal records and for filing a discrimination case, or for supporting others in pursuing their civil rights.
Union employees often have contractual rights such as the right not to be terminated except for "cause." Additionally, employees of certain local, state and federal governments enjoy additional protection such as the right to notice and a hearing before their termination. Government workers may not be discriminated against because they exercised their constitutional rights such as the right of free speech, to petition the government, and freedom of association. Generally government workers are also supposed to be free from retaliation for blowing the whistle on superiors involved in illegal conduct. The above list may not be complete since the courts have the power to recognize that other reasons may be against general public policy. Examples of this may be extending the whistle blower protection to private sector employees or considering obesity a physical handicap.
Procedural Protections
Two of the most important cases by the Supreme Court relating to Section 1983 and its application in the public employment context are Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 725, 33 L.Ed.2d 570 (1972) and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Pursuant to those cases a local government may not discharge an employee who has a property interest in his employment without providing due process. Simply stated, due process requires notice of the charges and an opportunity to be heard.
Notice and a hearing: An employee may not necessarily be limited to the procedures set forth by the employer for notice and a hearing. However, the process that is due under the constitution is not very demanding and is usually met by fairly informal procedures. Most importantly, the plaintiff must find a substantive right to the job, not merely procedural protections. Usually the substantive right is a duly formed contract or a promise not to fire except for "cause" such as in a merit system.
Property interest in job: Look in unusual places for job protections. In one case, the necessary provision was found in the Building Code, not in a merit system statute.
Defendants will argue that the right to employment is a right that does not rise to the level of a constitutionally protected property interest. This is really a red herring in the context of employment since the cases establish that the existence of a "cause" standard gives rise to a property interest. Once a property interest is established, it cannot be taken away without notice and a hearing. On the other hand, some courts have held that a part-time employment contract did not involve sufficient money or the "status" of employment. Therefore, the Court held that there was no property interest.
Discrimination Laws
Procedure for proving discrimination cases generally: According to the Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Plaintiff need only establish a prima facie case in order to shift the burden of production onto the Defendant. Once that burden is shifted the Defendant must come forth with evidence of a legitimate, non-discriminatory motive for its actions. If the employer meets that burden, the burden shifts back to the Plaintiff and requires the Plaintiff to prove that the employer's alleged motivation or explanation was merely a pretext. The Supreme Court clarified its ruling in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d. 207 (1981) and more recently in St. Mary's Honor Center v. Hicks, 125 L.Ed.2d 407 (1993). As stated in those cases, the burden of proof never shifts from the Plaintiff, only the burden of coming forward with evidence. That is, once the Plaintiff has established a prima facie case, "The McDonnell Douglas presumption places on the defendant the burden of producing an explanation to rebut the prima facie case -- i.e., the burden of "producing evidence" that the adverse employment actions were taken 'for a legitimate, non-discriminatory reason.' Burdine, 450 U.S. at 254." St. Mary's Honor Center v. Hicks, 125 L.Ed.2d at 416. The Court in Burdine further explained that the Defendant must prove that legitimate and non-discriminatory reason with admissible evidence which would support a finding that unlawful discrimination was not the cause of the employment action. Id. at 254-55 and n. 8.In St. Mary's Honor Center v. Hicks, the Court noted that if an employer failed to meet its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a non-discriminatory reason for the adverse action, the Plaintiff is entitled to judgment as a matter of law. Id. 125 L.Ed. 2d at 417-18. If the Defendant does sustain its burden of production but reasonable minds could differ as to the reason for the termination, a question of fact remains for the jury. Id. and see fn. 3.In Burdine, supra, and St. Mary's Honor Center, supra, the Supreme Court made it clear that the Defendant's burden of production is not met by simply alleging a non-discriminatory reason. Rather, the Defendant must "introduce evidence" with "specificity," sufficient to "frame the issue" with "sufficient clarity so that the Plaintiff will have a full and fair opportunity to demonstrate pretext." Burdine 450 U.S. at 255-56 and St. Mary's Honor Center, 125 L.Ed. 2d at 422. Moreover, the reason offered must be "legitimate" and non-discriminatory. Only at that point does the Plaintiff have to prove that the reasons articulated by the Defendant are a pretext and that the discriminatory reasons are the true reasons for the discharge. In St. Mary's Honor Center, the Court explained that a Plaintiff does not necessarily win as a matter of law simply because the trier of fact disbelieves the employer's alleged reason. The employee must prove that the discriminatory reasons were the motivating reasons. However, the prima facie case coupled with the disbelief of the proffered explanation can be an adequate basis for a Plaintiff's verdict.
A Plaintiff must prove pretext by showing that the action was taken under circumstances in which it can be inferred that the discriminatory reason was the determining factor in the decision." Riggle v. CSX Transportation, Inc., 755 F.Supp. 676, 59 FEP Cases 1726, 1729 (D.Md. 1991)."Legitimate" reason for the termination means that it was a legal reason: A plaintiff may be able to argue that the employer's articulated reason violated some other law such as the Fair Labor Standards Act and the employer failed to meet its burden of demonstrating a legitimate non-discriminatory reason for the termination.
After Acquired Evidence Rule
The "after acquired evidence" rule will affect all parts of the proceeding from the decision to take the case, all the way through appeal if you win. McKennon v. Nashville Banner Publ. Co., 1995 WL 20463 (Sup. Ct. 1995): Make sure the Plaintiff did not commit other reasons that would be cause for termination either before or after hire. Do not take documents from the employer or he could be accused of theft. If a plaintiff gets fired from a subsequent employer the Defendant will argue that there is a supervening reason for the losses.
Substantive Due Process Claims
Substantive Due Process should not be ignored as a possible pigeon hole within which to place an appropriate case. The following is a summary of an argument that can be made.
Although substantive due process regarding economic legislation has been repudiated by the Supreme Court since United States v. Carolene Products Co., 304 U.S. 144 (1983), it is still recognized as a doctrine which prohibits arbitrary and capricious governmental decisions. U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 533, n.5 (1973); McConnell v. Adams, 829 F.2d 1319, 1323-24 (4th Cir. 1987) (political affiliation discharge); Chung v. Park, 514 F.2d 382, 387 (3rd Cir. 1975); Ferguson v. Thomas, 430 F.2d 852, 859 (5th Cir. 1970); Morris v. Bd. of Ed. of Laurel, 401 F.Supp. 188, 211 (D.Del. 1975); Johnson v. Bd. of Regents of Univ. of Wisconsin, 377 F.Supp. 227, 239 (D.Wis. 1974) aff'd 510 F.2d 975 (7th Cir. 1975); J. McGuinness and L. Parlagreco, The Reemergence of Substantive Due Process as a Constitutional Tort: Theory, Proof and Damages, 24 New Eng. L.R. 1129 (1990).
Although a private employer may fire an "at will" employee for no reason, our system of government does not permit such conduct by government officials. Although an "at will" government employee may be fired in the discretion of the appointing authority, the exercise of discretion is necessary. Assuming, arguendo, that Plaintiff has no right to procedural due process, he is still entitled to be free of arbitrary and capricious governmental conduct. The due process c lauses of the Fifth and Fourteenth Amendments to the U.S. Constitution create substantive due process rights which are independent of whether Plaintiff has a property interest in his job. Elrod v. Burns, 427 U.S. 347, 375 (1976) (Stewart concurring); Branti v. Finkel, 445 U.S. 507, 519 (1980); Jones v. Dodson, 727 F.2d 1329 (4th Cir. 1984); McBee v. Jim Hogg County, 730 F.2d 1009 (5th Cir. 1984); Stegmaier v. Frammel, 597 F.2d 1027 (5th Cir. 1979). These cases hold that an employee in a political patronage position cannot be fired solely because of party affiliation unless that affiliation is an appropriate requirement due to the confidential and policy making nature of the position. Branti v. Finkle, supra. See also Note, Politics and the Non-Civil Service Public Employee, 85 Columbia L.R. 558 (1985).
In Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966), cert. den. 385 U.S. 1003 (1967) the Court held that a non-tenured public employee without a contract of employment may not be discharged arbitrarily, capriciously or for trivial reasons. The Court explained that discretion means the exercise of judgment, not bias or capriciousness. Whether reasons expressed by the governmental decision-makers are arbitrary, capricious, or trivial, is a question of fact to be decided by the trier of fact. Marks v. City of Chesapeake, 883 F.2d 308, 313 (4th Cir. 1989). A substantive due process violation also occurs when an employee's discharge is for an improper reason or the reasons given are pretextual. Barnett v. Housing Authority of the City of Atlanta, 707 F.2d 1571 (11th Cir. 1983); Hearn v. City of Gainesville, 688 F.2d 1328, 1332 (11th Cir. 1988); Roane v. Callisburg Independent School Dist., 511 F.2d 633, 639 (5th Cir. 1975); Fisher v. Snyder, 476 F.2d 375 (8th Cir. 1973) aff'g 346 F.2d 396 (D.Neb. 1972).
A public employee cannot be fired due to mere animosity between him and the decision-maker. Hearn v. City of Gainesville, supra; Silverman v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988) (personal or group animus as improper motive for substantive due process recognized); Scott v. Greenville County, 716 F.2d 1409, 1420-21 (4th Cir. 1983) (developer could not be deprived of property interest in obtaining building permit through manifest arbitrariness and unfairness). In a substantive due process claim the plaintiff need not establish a property interest as required in a procedural due process claim. Rather, substantive due process rights are created by the Constitution itself. Edwards v. Johnston County Health Dept., 885 F.2d 1215, 1219 (4th Cir. 1989).
In Johnston-Taylor v. Gannon, 907 F.2d 1577 (6th Cir. 1990), the Court held that substantive due process requires a rational basis for the termination of a government employee. The Court noted that summary judgment is inappropriate if there is a material issue as to the rationality of the determination and that the employer's lack of good faith can implicate substantive due process. Id. at 1582. A similar analysis was approved by the Eighth Circuit in Morris v. Clifford, 903 F.2d 574 (8th Cir. 1990). In Endicott v. Van Petten, 330 F.Supp. 878, 884 (D.Kan. 1971) the Court noted that in Gough v. Joint School Dist., 310 F.Supp. 984 (W.D. Wis. 1970), a companion case to Board of Regents v. Roth, supra, a teacher is protected against an employment decision that is "wholly without basis in fact and also against a decision which is wholly unreasoned, as well as a decision which is impermissibly based (such as race ...)." The Court essentially held that the rule in the private sector about terminating "at will" employees "for no reason whatsoever" is not applicable in the public employment.
