Friday, August 29, 2014

Utah Court of Appeals: Employee Caught on Camera Taking a Customer's Wallet had no Actionable Claim against Employer

The Utah Court of Appeals upheld a trial court's summary judgment dismissal of a former employee's claim against Target for breach of contract, intentional and negligent infliction of emotional distress, and defamation.  In a twenty page opinion, the court said that the employee, who had been caught on camera taking a customer's wallet, had no contractual right to progressive discipline before being discharged, had not been treated outrageously when interrogated by a security officer who had already decided to discharge her before questioning her, and had not been defamed because Target had a conditional privilege to communicate the reason for the discharge with its employees and interested parties.  

Wednesday, August 13, 2014

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

BLAUER v. DEPARTMENT OF WORKFORCE SERVICES 
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.)