A recent Appeals Court decision gives employers another tool in keeping public employees from returning to work after disability retirement. In Facella v. City of Newton, 69 Mass. App. Ct. 459 (2007), the Court denied civil service rights to a police officer returning from retirement because her employer had fired her before she had completed a back-to-work retraining program. The case expands on the Supreme Judicial Court’s 2001 decision in Sullivan v. Town of Brookline.

The case arises from a complicated aspect of the public employee retirement laws. Individuals who are disabled from performing their duties because of an on-duty injury may retire with a benefit equal to 72% of their pay, tax free. Any retirees who subsequently become able-bodied had to return to work if a position was available and the employer chose to take them back. In 1996, after newspaper reports that disabled retirees were working in physically-demanding jobs while earning a state pension, the Legislature amended the law to eliminate the discretion of the employer. Now, the employer has to take back the employee if he or she is designated by the state as able to do the work. In two 1998 cases, White v. City of Boston, and O’Neill v. City of Cambridge, the SJC explained to reluctant employers that the law meant what it said and the returning retirees must be taken back, if a position was available. (To complicate matters further, if there is no position available, the returning retiree is given a preference for the next opening.)

At about this time, public employers whose employees were covered by civil service law pointed out that Section 39 of Chapter 31 of the Mass. General Laws required civil service employees who were returning to work after an absence of five years or more to successfully complete a retraining program designed by the employer and approved by the state Human Resources Division. A question arose: When does the right of reinstatement begin, before or after the retraining?

The SJC answered the question in Sullivan v. Town of Brookline, 435 Mass. 353 (2001), in favor of the employers, who generally wanted their obligation to reinstate the returning retiree to begin as late as possible. Sullivan, who was required to complete a retraining program, but had not yet completed it, had no right to reinstatement, the Court ruled. His right (and the town’s obligation) only began after he had successfully completed the retraining.

Facella v. City of Newton, decided in 2007, follows up on a question left unanswered by Sullivan: what are the rights of a returning retiree who has actually been reinstated, but has not completed retraining? The answer: few to none. In Facella, the Appeals Court strengthened the Sullivan court’s conclusion that successfully completing retraining is the key factor in determining the employment status of disability retirees who retired more than five years earlier. The state cleared Facella as physically fit to return to a police officer position after 19 years on disability retirement. The City reinstated her, relying on the law as it existed at the time. The City assigned her to a desk job for several months, and then sent her to the police academy for a 22-week retraining course. During the retraining course, health issues caused her to drop out of the academy and be placed on sick leave. When Facella had not completed the academy 18 months later, the City terminated her employment. Facella sought to appeal her termination using the legal protections for tenured employees under civil service law. Under that law, Facella would have the right to a hearing before the employer, and the right to appeal to the Civil Service Commission, which would order her reinstated unless the City could prove it had just cause to fire her. The Appeals Court backed the City, ruling that Facella had never finished the retraining program, so she had never been fully reinstated as a tenured officer. At best, she was “conditionally reinstated … subject to her completing a retraining program.” 69 Mass. App. Ct. at 464. In other words, a disability retiree cleared to return to work has no legal claim on the employment, and no right to just cause protection against termination, unless and until the retiree completes training.

Sullivan in 2001 and Facella in 2007 may represent a trend towards strengthening the rights of employers in the returning disability retiree arena, after the strong pro-retiree statements of White and O’Neill in 1998. On the other hand, they may be only the courts’ response to a specific problem: how do the right to reinstatement and the retraining obligation intersect? With Sullivan and Facella, we have the answer to that question. Until another case comes along.

The Massachusetts Appeals Court has ruled that the City of Boston Police Department may have violated state anti-discrimination law by unilaterally eliminating rank-specific locker rooms in response to complaints by female ranking officers about inadequate accommodations. Sandulli Grace Attorney Patrick N. Bryant filed a friend-of-the-court brief on behalf of the Boston Police Patrolmen’s Association, Inc., which supported the Boston Police Superior Officers Federation’s challenge to elimination of longstanding locker room arrangements.

In the case of King & BPSOF vs. Boston, 06-P-1013 (March 28, 2008) (http://socialaw.org/slip.htm?cid=18022&sid=119), female superior officers for the Boston Police Department requested that they be provided access to rank-specific, female locker rooms, as enjoyed by male ranking officers. Many BPD district stations offer rank-specific locker rooms for male officers and not female officers. After several superior officers complained about the disparate accommodations (the BPD offered a locked closet space as one alternative), the BPD sought to eliminate all rank-specific locker rooms at all district stations. This move was jointly opposed by the BPPA and BPSOF. The day after the superiors union filed a complaint with the Massachusetts Commission Against Discrimination, the BPD ordered the closure of all rank-specific locker rooms, including male and female. The superiors union amended its complaint to include charges of retaliation. After the superiors union moved for an injunction, the BPD agreed to halt locker room changes for the time being.

The Appeals Court ruled that the BPSOF produced enough evidence to go to trial against the City. The Appeals Court agreed with Plaintiffs that rank-specific, gender-specific locker rooms may be an important condition of employment. As the court ruled:

Separate locker rooms alleviate potential tensions between superior officers and the patrol officers whom they are required to supervise and discipline. They provide also a psychological buffer zone for patrol officers who use their locker rooms as a place to decompress, without official scrutiny, after performing a shift that can be stressful and intense. Locker rooms may be a significant location for union organizing and collective action, a particularly relevant factor in this instance given that patrol officers and superior officers are members of different unions.

The Court ruled that the Plaintiffs also produced enough evidence that the BPD illegally retaliated against female officers and the BPSOF when it made changes to locker rooms. Significantly, the Court agreed that the filing of a grievance about discriminatory treatment is “protected activity” under anti-discrimination law. Further, the BPD’s decision to eliminate rank-specific locker rooms after a newspaper article about the lawsuit created an inference that the decision was intended to retaliate against BPSOF.

Technically, the Appeals Court decision occurred at the Summary Judgment stage of litigation, meaning that the Court did not necessary agree that the locker rooms were a material condition of employment or that the BPD’s actions were illegally motivated. By denying Summary Judgment to the BPD, the Court essentially ruled that Plaintiffs produced enough evidence for a jury to decide the legality of BPD’s actions.

In an extraordinary rebuke of the Republican-dominated National Labor Relations Board, a panel of the U.S. Court of Appeals for the Second Circuit has struck down a vague “no harassment” policy implemented by an employer during an acrimonious union organizing campaign.

In UAW v. NLRB, (March 20, 2008), a Connecticut automobile plant responded to a UAW organizing campaign by threatening to fire employees that even talked about the union during work time, and by implementing a vague “no harassment” policy intended to thwart union organizing. On review, the NLRB agreed that employer policies that prohibit discussions or solicitations regarding unionization during working hours are illegal.

While federal courts typically defer to the decisions of administrative agencies such as the NLRB, the Second Circuit reversed the NLRB’s conclusion that the announcement of a “no harassment” policy was not illegal. The employer defended the “no harassment policy” as addressing reported intimidation and vandalism at the plant. However, the Second Circuit reminded the NLRB that the employer’s intentions behind the policy are irrelevant, as it is necessary to consider how a reasonable employee would interpret a “no harassment” policy. Here, the Second Circuit ruled, a reasonable person would interpret such a policy as prohibiting union organizing, given that the employer already implemented a policy expressly prohibiting union organizing.

Unfortunately, as an example of federal law’s bias toward employers, the Second Circuit upheld the NLRB’s ruling that the employer’s fearmongering – regularly characterizing the Union as violent, strike-happy, pervaded by “violence, threats, intimidation and [ ] death” – was not illegal.

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The influential U.S. Court of Appeals for the District of Columbia has ruled that an employer cannot refuse to bargain with a union that represents illegal immigrants that the employer hired. In Agri Processesor Co. Inc., v. National Labor Relations Board, (Jan. 4, 2008), a New York City employer hired a number of undocumented aliens to work at a kosher meat processing plant. A majority of plant workers sought to improve their working conditions by electing the United Food and Commercial Workers Union as their union representative.

Instead of sitting down at the bargaining table with the democratically elected union, the employer chose to violate federal labor law. The employer claimed it had no obligation to bargain with a union that represents illegal aliens, even though the employer hired these employees. The employer also claimed that the National Labor Relations Board had no power to craft a bargaining unit that included both illegal aliens and legal residents. The NLRB and the D.C. Circuit Court easily rejected these arguments. They cited to a U.S. Supreme Court case that held that the National Labor Relations Act, which is the federal labor law that applies to the private sector, defines “employee” to protects legal and illegal residents. “Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of ‘employee.’” the Supreme Court ruled in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891-892 (1984).

In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court ruled that the NLRB cannot provide certain financial relief to illegal aliens, such as backpay to immigrants fired in violation of the NLRA. But as the D.C. Circuit pointed out, Hoffman Plastic did not change the basic rule from Sure-Tan: illegal aliens have the right to join unions and be free from anti-union retaliation.

Regardless of one’s position on illegal immigration, the D.C. Circuit’s decision in Agri Processor is a victory for unions and a rebuke of employer’s illegal efforts to undermine employee free choice. Agri Processing shows states that employers cannot rely on its own question hiring practices to justify illegally refusing to negotiate with unions elected by employees.

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In Massachusetts Bay Transportation Authority v. Massachusetts Commission Against Discrimination, http://socialaw.org/slip.htm?cid=17757&sid=120, SJC-09893 (Jan. 8, 2008), the Supreme Judicial Court ruled that the transit agency violated state anti-discrimination law when it refused to hire a Seventh-Day Adventist for his inability to work on the Sabbath (Friday sundown until Saturday at sundown).

The Massachusetts anti-discrimination law, known as General Laws Chapter 151B, §4, protects employees and applicants from discrimination by employers on the basis of religion. Once an employee notifies an employer that an employer’s practice requires him or her to violate a religious practice compelled by sincerely held belief, the employer must either a) accommodate the complainant or b) prove that accommodation of the employee’s religious obligations imposes “an undue hardship” on the employer. In analyzing the employer’s defense of undue hardship, the MCAD “must focus on the particular nature and operations of the employer’s business” and “whether the employer could have exercised its managerial discretion in such a way that the employee’s religious obligations could have been reasonably accommodated.”

In this case, the MBTA failed to explore any reasonable accommodation of the applicant’s religious inability to work on the Sabbath, namely allowing the prospective employee to swap Sabbath shifts with other bus drivers. The SJC agreed that the MBTA faces an undue hardship if accommodation of religion forces it to leave a shift uncovered or to pay overtime to a relief driver. But the SJC chided the MBTA for failing to conduct even a cursory investigation into whether shift-swapping is feasible. The anti-discrimination law, the court noted, expressly contemplates observance of the Sabbath as a protected religious activity that may entitle an employee to a reasonable accommodation. Swaps therefore may be the simplest cost-free method of accommodating this religious practice.

The SJC left the door open for an employer in future circumstances to show, following an investigation, that shift-swapping was unlikely to adequately enable the employee to not work on the Sabbath. The MBTA conducted no such investigation here. The SJC, however, declined to that an employer automatically violates Chapter 151B by failing to explore options for accommodating the employee’s asserted religious practice.

Finally, the Court appeared to indicate that a collective bargaining agreement may be a defense to an employer’s claim of undue hardship, if for instance, the CBA denied or restricted the practice of voluntary swaps.

In Nguyen v. William Joiner Center For The Study Of War And Social Consequences, SJC-09848 (December 21, 2007) [http://socialaw.org/slip.htm?cid=17718&sid=120], the Massachusetts Supreme Judicial Court dismissed a claim that the University of Massachusetts illegally refused to appoint a person to a fellowship because the plaintiff never actually applied for the fellowship. ?
In this case, the plaintiff, who claimed to be of South Vietnamese origin, claimed that the University’s hiring practices were motivated by discrimination. The plaintiff did not, however, ever apply for the positions during a three-year period. He justified his inaction by pointing to the University’s alleged failure to advertise widely for the positions and by pointing to the futility of applying for the fellowships once he filed a claim of discrimination with the Massachusetts Commission Against Discrimination.

The SJC found that the positions were adequately advertised and, moreover, insufficient advertising does not necessarily mean that the employer’s hiring was motivated by discriminatory beliefs. In addressing the significance of the plaintiff’s failure to apply for the positions, the SJC refused to rule that non-applicants are barred from asserting claims of discrimination. It wrote, “In the context of proving a discrimination claim under G. L. c. 151B, a per se prohibition of relief to a non-applicant on the basis of futility would contravene the remedial purpose of the statute.”

The SJC then elaborated on this concept of “futility,” which is how a discrimination claim by a non-applicant is analyzed. This concept is similar to “constructive discharge,” which permits persons who “voluntarily” quit a job to claim that they were effectively forced out of their position. While normally a person denied a position cannot file a claim of discrimination if they did not apply for said position, the SJC recognized that such an omission is excusable when the employer has a notorious discriminatory hiring practice or policy. However, the plaintiff here failed to provide any evidence that the University would have refused to hire him subsequent to his filing of an MCAD claim. “The plaintiff’s subjective belief that, in light of the backdrop of legal proceedings, he would have been rejected had he applied for a fellowship cannot excuse his failure to apply, because the fact that he filed a charge with the commission alleging discrimination does not by itself establish that discrimination existed.”

The Massachusetts Commission Against Discrimination is re-opening its Central Massachusetts office in January 2008. MCAD, the state agency that enforces state law prohibiting many forms of discrimination in employment, housing, lending, education, and public places, returns to Worcester City Hall, located at 455 Main Street, Worcester, MA 01608 for the first time in 16 years. [The MCAD web site lists (508) 799-1871 as the office’s contact number].

This news is significant because MCAD requires all relevant claims of discrimination – including on the basis of age, race, gender, sexual orientation, religion, national origin, disability, and criminal record – to be filed in person. Currently, persons in Central Massachusetts must trek to Springfield or Boston to seek a vindication of rights protected by MCAD. If nothing else, this revived office provides one more option for claimants. For more information about your rights to be protected against discrimination and retaliation for engaging in protected activity and MCAD’s involvement in these investigating and enforcing the law, go to www.mass.gov/mcad.