SUPREME COURT EXPANDS GOVERNMENT EMPLOYEES’ RIGHTS!

This is a post we didn’t expect to write about this particular Supreme Court, but we are pleased to see that the United States Supreme Court has issued an important decision expanding the free speech rights of government employees. The decision,  Lane v. Franks, No. 13-483 (U.S. June 19, 2014), held that government employees who testify under oath are protected by the First Amendment, meaning that their government employers may not retaliate against them for what they say when testifying. Lane, slip op, at 8, 13. This principle was in some doubt after an earlier decision by the Supreme Court called Garcetti v. Ceballos, 547 U.S. 410 (2006), which held that statements made by a government employee as part of their official duties do not have First Amendment protection. Garcetti, at 421. Therefore, under Garcetti, government employees could be fired in retaliation for speaking about things they observed in their workplace. The Lane decision limits the situations where government employees can punish those employees for speaking out. It says that statements made by government employees in court proceedings are protected under the First Amendment, at least where testifying in court is not part of their ordinary job duties, because they are acting in their role as citizens, and are therefore entitled to the same First Amendment protection against retaliation by the government for what they say as any other citizen would be. Lane, slip op, at 9.

In its decision, the Supreme Court helpfully stated or restated a number of important principles that apply to any analysis of whether a government employee’s speech is protected by the Constitution. These include: that public employees do not give up their rights as citizens just because they have entered government service; that government employers must not require its employees to give up their Constitutional rights as a condition of employment; that speech by government employees about matters of public concern should be encouraged, not discouraged; and that this is, in part, because government employees are in the best position to speak about problems within their agency, which is itself in the public interest. Lane, slip op, at 9-11.

We welcome this important expansion of public employees’ protection from retaliation. For an interesting and comprehensive discussion of this case, check out this post

MRW Honored by Chambers USA Guide 2014

On May 23, 2014, highly recognized Chambers & Partners ranking service released their USA 2014 Guide to “top tier’ law firms across the country.  Chambers cites Messing, Rudavsky, & Weliky P.C. as one of only three, among hundreds, of firms representing employees in Massachusetts, and describes MRW as the “premier boutique offering the full spectrum of labor and employment services, renowned for its expertise in discrimination work,” which “stands out for its experience at both the state and federal level.”  Chambers lauds MRW’s attorneys as the “deans of the labor law practice,” noting that the “tenacious” Ellen Messing is seen as a “strong advocate” for her clients who “kicks the tires to make sure she gets the best deal she can,” and that Dahlia Rudavsky is “highly regarded for her expertise pertaining to discrimination matters, acting for individual employees and unions,” who is noted by peers “for her calm demeanor and effective litigation style.” The firm is honored to receive such recognition.   To learn more about this ranking visit the Chambers & Partners website.

Victory for Civil Rights Plaintiffs: Supreme Court Reinforces Summary Judgment Standard

Summary judgment is a legal procedural tool that is often used by judges to dispose of cases before they reach a jury.  In the context of employment discrimination, many cases that reach the summary judgment stage are dismissed at that point, and those plaintiffs do not have the opportunity to try their cases to a jury.

During pretrial proceedings, a judge is not considered the “fact-finder.”  When there are disputes about the facts of a case (that is, when the parties disagree about what actually happened), the judge is required by legal precedent to assume that the facts as stated by the plaintiff are true.  In the recent Supreme Court case Tolan v. Cotton, 572 U.S. ___ (May 5, 2014), the Supreme Court reinforced this summary judgment standard and overturned a decision of the Fifth Circuit Court of Appeals, which had mistakenly dismissed the plaintiff’s case. 

In Tolan, police sergeant Jeffrey Cotton shot and injured Robert Tolan, whom police mistakenly thought had stolen a car.  Tolan was unarmed on his parents’ front porch, and his mother came outside and told the police the car was not stolen.  The police ordered Tolan’s mother to stand against the family’s garage door and roughed her up when she expressed incredulity.  When Tolan protested this treatment of his mother, Cotton shot him.

The parties disagree about the events surrounding the shooting.  According to Tolan, two floodlights illuminated the area; Tolan’s mother protested what the police were doing in a nonthreatening manner; Tolan spoke to Cotton in a normal manner; and Tolan was on his knees when Cotton shot him.  The Court of Appeals determined instead that the porch was “fairly dark” at the time of the shooting; that Tolan’s mother was “very agitated” when addressing the police officers; that Tolan was “shouting” and “verbally threatening” Cotton; and that Tolan was on his feet and “moving to intervene” in Cotton’s interaction with Tolan’s mother.  Based on these factual conclusions, the Court of Appeals ruled that the police had acted reasonably and did not violate clearly established law in shooting Tolan, thus concluding there was no need for a trial.

The Supreme Court found that the Court of Appeals was wrong to draw factual conclusions.  It explained that, in doing so, the lower court was choosing to credit the police officers’ perspective on the facts rather than believing Toland, thus denying Tolan the right to have his claim for injuries decided by a jury.

In overturning the Court of Appeals, the Supreme Court explained that the Court of Appeals had “fail[ed] to credit evidence that contradicted some of its key factual conclusions, … improperly ‘weigh[ed] the evidence’ and resolved disputed issues in favor of” the defendant.  Tolan, Slip Op., at 8 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).  The court reinforced the principle that a judge’s role, at this stage, is “not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’” Tolan, Slip Op., at 7 (quoting Anderson, 477 U.S., at 249). 

This is a very important decision for all plaintiffs in all civil cases.  It reminds courts that when a defendant files a summary judgment motion, the court must believe the facts as stated by the plaintiff.  This gives the plaintiff the opportunity to present her evidence and allows the jury to determine whose version should be believed.

Federal Advisory Committee Adopts Recommendations from Ellen Messing and NELA

As previously detailed in this space, Ellen Messing was invited to participate at “A Forum for Understanding and Comment on the Proposed Federal Rules Amendments” as a representative of the National Employment Lawyers Association (NELA).  The amendments under consideration by the Advisory Committee on Civil Rules, if adopted, would have had a deleterious effect on the ability of employees to enforce their rights in court.  Since the forum, the Advisory Committee has rejected most of these potentially harmful amendments and adopted most of the recommendations advanced by Messing and NELA.  This represents a significant victory for employees, their counsel and their allies.

Congratulations to NELA and the advocates who spent countless hours on this important endeavor to protect the interest of workers!

James Weliky Featured at MCLE Programs for Employment Lawyers

James Weliky has again been selected to serve as an expert faculty member on two popular programs presented by Massachusetts Continuing Legal Eduction (MCLE).  First, Mr. Weliky served as faculty at MCLE’s “Employment Law for Business Lawyers and In-House Counsel.”  This year’s edition of the program, held January 30, represented Mr. Weliky’s tenth year on the program’s faculty!

In May, Mr, Weliky will serve on the faculty of MCLE’s “Advising Employers & Employees on Off-Duty Conduct & Privacy in the Workplace.”  The program will examine some of the most topical, but widely-misunderstood, subjects affecting the modern workplace, including: employee use of social media in and out of the workplace, electronic monitoring of employees, and the affect of medical marijuana law on the workplace.  This year’s edition of the program with be Mr. Weliky’s second as faculty.

To learn more about these programs and MCLE, click here to visit their website.

Messing Joins Forum of Experts to Comment on Federal Rules

Ellen Messing was recently an invited participant at “A Forum for Understanding and Comment on the Proposed Federal Rules Amendments,” a meeting held at the University of Denver facilitated by the Institute for the Advancement of the American Legal System (IAALS).  According to IAALS, the forum was held to “bring together a small and select group of lawyers, academics, and judges from around the country, from all areas of practice” to comment on the Federal Rules of Civil Procedure.

The Federal Rules of Civil Procedure govern civil lawsuits brought in federal courts.  Because employees must often enforce their rights in federal courts, they are especially vulnerable to amendments to the Federal Rules.  To protect the interests of employees in the federal rule-making process, Ms. Messing attended the forum as a representative of the National Employment Lawyers Association (NELA), an organization advocating for the rights of employees.

To learn more about IAALS, please visit their website by clicking here.

MRW Obtains Critical Ruling in Federal Race Discrimination Case

The U.S. District Court in Boston recently handed down a ruling favoring a MRW client suing his employer for race discrimination.  The plaintiff’s case alleges he was denied a series of promotions because of his race and that his employer retaliated against him after he complained about racism in the workplace.  In June 2013, lawyers for the employer filed a motion requesting that the Court dismiss the case.  MRW’s lawyers responded with an opposition to the motion.  Relying heavily on MRW’s opposition, the Court issued a January 2014 ruling that preserved most of the plaintiff’s claims and allowed the case to continue toward a trial.

To learn more about the case and the allegations, see WBZ-TV’s spring 2011 news feature on the case.  To view a recording of the broadcast, click here.

Rudavsky and Messing Present at Employment Law Basics Program

Dahlia Rudavsky and Ellen Messing presented at Massachusetts Continuing Legal Education’s “Employment and Labor Law: MCLE BasicsPlus” program.  The annual program, held November 6-7, 2013, is designed to provide lawyers with an introduction to the most significant issues in labor and employment law.  This was the 15th year in which one or more of the attorneys from Messing, Rudavsky & Weliky served on the program’s expert faculty.

To learn more about the program and faculty, please visit MCLE’s website.

MRW Receives Top Ranking

For the second year in a row, Messing, Rudavsky & Weliky, P.C. has been ranked in “Tier 1” of Boston labor and employment litigation firms by U.S. News and World Report.  This recognition, which will be published in the 2014 Edition of U.S. News – Best Lawyers, is based on evaluations submitted by both lawyers and legal consumers in areas including the firm’s expertise, responsiveness and cost-effectiveness.  To read more about the rankings themselves, and their methodology, please visit the U.S. News – Best Lawyers website.

Super Lawyers Continues to Recognize Messing, Rudavsky & Weliky

Dahlia Rudavsky, Ellen Messing and James Weliky have again been recognized by Super Lawyers.  The 2013 edition marks the tenth year in a row in which Super Lawyers has included the firm’s attorneys in their annual list.

Super Lawyers‘ annual lists of distinguished attorneys are compiled using a patented methodology which employs peer nominations and reviews and private research.  According to Super Lawyers, this process aims to “create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.”  You can learn more about Super Lawyers and their methodology on their website.

Messing, Rudavsky & Weliky’s decade-long presence in Super Lawyers is an authoritative reflection of the firm’s ability to provide excellent service and consistently achieve results for working people.