Employment Case Law Update

--Savage v Gee, 6thCir, January 4, 2012, Case No. 10-3839:  Court of Appeals for the Sixth Circuit AFFIRMS grant of summary judgment in favor of defendant on all of plaintiff's claims, which included a First Amendment violation and cosntructive discharge.  The plaintiff was Head of Reference and Library Instruction at The Ohio State University’s Bromfield Library in Mansfield, Ohio.  In 2006, the plaintiff joined a committee that sought to select a book all incoming freshman would be asked to read.  It was the plaintiff's recommendations that served as the basis of his suit as Savage wanted to "choose something that confronts the accepted wisdom of Ohio State University."  Savage then selected a book that had a anti-homosexual message, which highly offended another member of the committee. 

Savage's recommendation led to a serious of sexual harassment complaint exchanges with the university as well as a series of emails discussing Savage's behavior though the university chose to not terminate him.  Eventually Savage took a leave of absence and claimed the university did nothing to protect him against the attacks.  Savage then instituted claims in state court against the university and resigned.  When Savage filed suit in federal court before dismissing his state-level claims, the university moved for summary judgment on the grounds that Savage had waived all federal and state damages claims against state officials arising from the above-recited facts by bringing an action in the Court of Claims, citing Leaman v. Ohio Department of Mental Retardation & Development Disabilities, 825 F.2d 946 (6th Cir. 1987) (en banc).  The district court then found that Savage’s claims for damages were barred byLeaman; his right to free speech was not infringed because his speech was not protected; he was not constructively discharged; he lacked standing to bring a facial challenge to the University’s sexual harassment policy; and that his as-applied challenge to the policy failed because he sustained no

cognizable harm because of the policy.

--Draper v Martin, 7thCir, December 30, 2011, Case Nos. 10-2837 & 10-3054:  Defendants' motion for summary judgment on plaintiffs' wrongful termination claims AFFIRMED.  Plaintiff's filed claims in response to losing their jobs arguing that their terminations were politically motivated in violation of the First Amendment, and second, that they were denied a property interest in their jobs in violation of the Fourteenth Amendment.  In affirming the lower court's decision, the 7th Circuit held that these claims were barred by Illinois' two-year statute of limitations for wrongful termination claims given the date they were issued unequivocal termination notices.  The court did not delve into the merits of the underlying claims.

--Hemphill v City of Wilmington, DDel, December 20, 2011, Case No. 10-679:  Plaintiff's hostile work environment claim based on race dismissed on summary judgment but retaliation claim under Title VII proceeded to trial and, after a three-day trial, a jury returned a verdict finding defendant had retaliated against plaintiff when it forced her to transfer from her supervisory position back to her position as administrative assistant to the Chief of Police.  The jury awarded no compensatory and the equitable remedies of reinstatement, back pay, and other appropriate equitable relief were reserved for the judge to determine.  The judge awarded placement in an equivalent position, back pay, and equitable relief in the form of a court order requiring the city to hire a third party to further train its managers on handling harassment complaints and also to post a complete and accurate account of the outcome of the litigation.

--EEOC v The Gap, Inc, EDMich, December 27, 2011, Case No. 10-14559:  Court DENIES EEOC's motion to amend their complaint and modify the scheduling order.  After initially filing his charge with the EEOC, the charging party discovered that a symptom of his disability was attributable to HIV and not glomerulonephritis as originally thought.  In denying the EEOC's motion, the magistrate noted the length of unexcusable delay and prejudice to an employer The magistrate also found that because the agency knew and concealed the fact that this was an HIV case, the EEOC also denied the employer a reasonable opportunity to conciliate and refused the EEOC’s alternative request to stay the proceedings for further conciliation.