Wednesday, August 13, 2014

The Strange Case of Blauer and the DWS: A Question of Sovereign Immunity ... Sort of

2014 UT App. 100 (Utah Ct. App., May 1, 2014)

When [ironies] come, they come not single spies, but in battalions.
                         — Paraphrasing Hamlet IV.v

The Department of Workforce Services, charged with administering Utah employment law, fired Blauer, its legal counsel, for rejecting its proposed accommodations to his disabilities.  Blauer’s physicians recommended he avoid sedentary labors.  In response, DWS assigned Blauer to hear employment cases—mostly by phone.  Blauer refused, asserting that this was purely sedentary work.  The DWS replied that since he would be on the telephone most of the time, he could walk about during the hearings.  Eventually, the DWS terminated Blauer, who brought suit in Utah state court under the federal Americans with Disabilities Act (ADA) and the Utah Antidiscrimination Act (UADA).   

Blauer pointed to the ADA’s specific abrogation of Eleventh Amendment immunity, declaring that no state could violate the ADA and then retreat behind the Eleventh Amendment.  Ironically, however, in its endless tug-of-war with Congress, the US Supreme Court had struck that provision down in 2001 as unconstitutionally abrogating the Eleventh Amendment.  Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364, 373–74 (2001).  Moreover, the Utah Court of Appeals pointed out, the Eleventh Amendment applies to federal jurisdiction.  Blauer had brought his suit in state court.  Blauer seemed to be arguing, the court mused, that the absence from the Eleventh Amendment of explicit protection for the states from federal claims in state court somehow allowed Blauer to sue DWS in state instead of federal court. 2014 UT App. at ¶ 7.  This idea, however, the US Supreme Court had particularly rejected, declaring that “state courts could [not] be required ‘to entertain federal suits which are not within the judicial power of the United States and could not be heard in federal courts.’”  Id., quoting Alden v. Maine, 527 U.S. 706, 712–13, 754 (1999). 
The Blauer Court leaves unanswered the rather critical question how there could ever be a federal suit outside the jurisdiction of the federal courts, or how a state legislature might create such a thing, or by what mechanism a plaintiff might lawfully bring it.  But since state sovereign immunity from federal suits “exists irrespective of the Eleventh Amendment,” it probably makes little difference.  Except of course to Mr. Blauer.

Blauer v. DWS stands, apparently, for the proposition that the Eleventh Amendment is superfluous, that nobody but other governments can maintain a federal (or state) suit against a state.  And this applies especially to suits based on laws the federal government cannot pass.

Wednesday, August 6, 2014

Tenth Circuit: Favoring a Paramour Not Necessarily Gender Discrimination

In Clark v. Cache Valley Electric Co. (10th Cir., July 25, 2014), the Tenth Circuit Court of Appeals ruled that a federal district court had properly dismissed a gender discrimination and retaliation claim brought by a Utah employee of Cache Valley Electric.  The employee claimed that a supervisor was favoring an employee who had allegedly been in a previous sexual relationship with the supervisor.  The Tenth Circuit noted that "[f]avoritism of a paramour is not gender discrimination."  Although such relationships can give rise to gender discrimination claims, the Court explained that to establish such a claim there must be evidence of gender bias generally, emphasizing the that "the preferential treatment [in this case extended only] to one female employee."  (Emphasis in original.)

Friday, July 25, 2014

Tenth Circuit: Carbon County Properly Dismissed Benefits Administrator for Dragging Her Feet on her Own FMLA Paperwork

In a case decided today, Dalpiaz v. Carbon County, the Tenth Circuit Court of Appeals upheld Carbon County's decision to discharge a benefits administrator when she "acted insubordinately by choosing to submit her FMLA forms at almost the literal last minute, more than seven weeks after the county made its first request for these forms to be submitted as soon as possible and after several reminders that the county was still waiting."  The Court also agreed that the county was justified in discharging her when she "fail[ed] to make more than a belated, half-hearted effort to comply with a direct and legitimate order" to report to a doctor to obtain a second opinion.  The Court rejected the employee's argument that this interfered with her rights under the FMLA because, despite the fact that the paperwork and second-opinion were related to her request for FMLA leave, her decisions were "not shelter[ed] . . . from" her obligation "to comply with legitimate directions given by her supervisor."  The decision affirmed the trial court's dismissal of the employee's claim on summary judgment.

Thursday, July 17, 2014

The Utah Employment Lawyer---New and Improved!

Since 2009, The Utah Employment Lawyer Blog has posted important information about events and legislation and cataloged cases that relate exclusively to Utah employers.  In the last month, The Utah Employment Lawyer, created by D. Scott Crook, a partner at the boutique Utah law firm Arnold & Crook PLLC, has gone through a major overhaul that makes the blog more user-friendly and allows more quick updates on Utah employment news.  

Here is a sample of some of the information you can find on the blog:

  • Since 2009, the Utah Supreme Court has decided no employment discrimination related cases, while the Utah Court of Appeals has decided 5 and the Tenth Circuit Court of Appeals has decided over 323.
  • Utah S.B. 100, legislation proposing to amend the Utah Antidiscrimination Act to prohibit discrimination on the basis of sexual orientation was sponsored by Senator Stephen H. Urquhart.
  • Links to some entertaining "New Employee Orientation" videos.
Please come visit the site and see how helpful it can be!

Tuesday, July 8, 2014

Utah Supreme Court: Private University's Police Cadet was Public Employee Entitled to Immunity

In Mallory v. Brigham Young University, the Utah Supreme Court held that a police cadet employed by BYU was considered an employee for governmental immunity purposes.  The decision reversed a 2012 Utah Court of Appeals decision holding otherwise, and concluded that the plaintiff had no claim because he had failed to serve a notice of claim under the Governmental Immunity Act. 

Utah statute allows private universities to establish law enforcement agencies under certain conditions.  BYU obtained the necessary certifications to create a law enforcement agency and established its own police force.  Provo, the city in which BYU is located, adopted an ordinance in which it permitted BYU to employ non-peace officers to direct traffic in certain circumstances so long as those employees were supervised by peace officers employed by BYU.  Provo provided no other mechanism of control over this authority other than reserving in its ordinance the right of the Provo City Police Chief to discharge officers and agents of the Provo City Police Department.

In 2008, a BYU employee was directing traffic when an accident occurred.  The injured person sued BYU and the BYU employees without first serving a notice of claim with Provo City under the Governmental Immunity Act.  BYU claimed that the employee was a Provo City employee as that term was defined under the Governmental Immunity Act and sought dismissal of the complaint.  The trial court dismissed the claim and, on appeal, the Court of Appeals reversed.

The Utah Supreme Court reversed the Court of Appeals holding (1) the term "agent" had a broader meaning than decided by the appellate court, and (2) because Provo City ultimately had the right to control the BYU defendants' method or even right to control traffic on Provo's streets, it had sufficient control to establish a master-servant relationship, making the subordinant BYU employee a "servant" of Provo City sufficient that the Governmental Immunity Act applied.  Importantly, in footnote 7 of the majority opinion, the Utah Supreme Court rejected the application of the "right-to-control" case law established in the workers compensation context to the governmental immunity cases.

The dissenting justices provided a spirited opinion in which they strongly disagreed with the analysis of the majority, concluding that they would have held that the employee was much more like an independent contractor and thus not an employee of Provo City.

Monday, July 7, 2014

Utah Supreme Court Rejects Department of Workforce Service's Interpretation of Statute

In a case decided on June 20, 2014, Dorsey v. DWS, 2014 UT 22, the Utah Supreme Court held that the Department of Workforce Services (DWS) had "erroneously interpreted" a statutory provision to ban seasonal employees who receive work-search deferrals from leaving the country.  As in many cases as discussed in an earlier post, the unemployment claimant was a seasonal employee who had been guaranteed to return to work by his employer. Pursuant to regulation, he was told that he need not search for work so long as he was ready, able, and willing to return to work.  During the time that he was on a deferral, he took several trips to Mexico, although he was close to the United States, had his cell phone with him, and contacted his employer.  The DWS had penalized the employee for being unable to return to work as it interpreted any travel outside of the United States as creating an inability to work.  The Supreme Court ruled that a per se ban was inconsistent with the statutory language and therefore overturned the penalty imposed.  While the opinion reverses the DWS's action in this case, it notes that the Utah legislature has recently adopted an amendment to the statute that codifies the DWS's interpretation of the rule.