Recent Developments from Around the States

Cheryl Yoshimura Thompson, the principal at Highlands Elementary School in California, and Ana Doughty, an instructional aide at the school, walked in on two teachers involved in a sexual act in a science lab in October 1997. The school district investigated the incident, announced that “appropriate action” had been taken, and thus indicated that it considered the matter closed. After the incident and investigation, however, Thompson and Doughty continued to gossip about what they had seen. For example, Doughty discussed the incident with a teacher, and Principal Thompson regaled a lunch supervisor with the salacious details. District administration believed that such continued discussion would only impair the school's reputation and felt, in any case, that the incident was a confidential personal matter. Consequently, the school district issued verbal warnings to both employees and later placed a written warning in Thompson's personnel file. The written warning threatened Thompson with termination if her gossip about the incident did not stop. Thompson and Doughty sought damages, claiming that such disciplined impinged on their First Amendment rights. The lower court disagreed.

On appeal, the California Court of Appeals affirmed the lower court. The speech in which the two employees had engaged – which included, for example, a recounting of the sexual incident at a private holiday party – was not the act of two whistleblowers, intended to expose the policies or practices of a public employer as matters of public concern. Rather, this was private scuttlebutt, not the sort of speech that the U.S. Supreme Court held was protected in Pickering v. Board of Education, 391 U.S. 563 (1968). Thus, the court held, the trial court did not err in finding that the two employees' reports of the sexual incident were not protected by the First Amendment.

FLORIDA

Personal E-mails on Government Computers Not 'Public Record'

The Florida Supreme Court has held that public employees' personal e-mails, even when stored on government-owned computer systems, are not subject to disclosure under Florida's public records law. State of Florida v. City of Clearwater, 2003 WL 22097478 (Sep. 11).

A reporter for the Times Publishing Company requested that the City of Clearwater provide copies of all e-mails to or from two employees of the City of Clearwater, FL, for a 2-year period. The employees sorted the e-mails into two categories – public and private – and provided the “public” e-mails to the reporter. They did not provide the “private” e-mails. The Times Publishing Company then sued the City to obtain the private

e-mails as well. The trial court denied the Times Publishing Company's request for a permanent injunction to obtain the emails. An intermediate appellate court affirmed the trial court's decision, holding that that private e-mails were not public records obtainable by the reporter under the Florida Constitution.

The Supreme Court of Florida affirmed. Under the Florida Constitution, any person has the right “to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee.” Florida Statute ' 119.011(1) in turn defines “public records” as any document “made or received pursuant to law or ordinance or in connection with the transaction of official business” by a state agency. The court noted that, as early as the late 19th century, it had defined “public record” to mean any record kept by a public officer in connection with “the duties of his office.” Although the definition of “record” had been recently amended to include electronic transmissions such as e-mails, the court's requirement that a given record must have a connection to state business in order to be considered public was “essentially unchanged.” Because the allegedly private emails in question were personal to the state employees in question and were not made in connection with official state business, the Time Publishing Company had no constitutional right to obtain them. The court also rejected the State Attorney General's argument that the emails were public records because they contained “header” information such as official date and time stamps and routing information, which would make the e-mails comparable to the sorts of phone or mail logs that are clearly public records under Florida law. Unlike such logs, which are single documents themselves, the e-mail headers were created by the employees' mere use of the state's e-mail system. Thus, the “e-mail headers are not 'prepared' with the intent to 'perpetuate, communicate, or formalize knowledge of some type'.” Accordingly, the employees' private e-mails were not public records susceptible to disclosure to the public.

NEW YORK

Child with Birth Defects May Add Fraud Claims to Mother's Personal Injury Suit

An infant who was born with birth defects alleged to be the result of unsafe conditions at her mother's workplace could add fraud claims to her mother's personal injury suit because the employer misrepresented the work environment as safe for women, a New York appellate court has held. Curtis v. IBM Corp., 2002 WL 32168886 (Sep. 22).

Plaintiff Heather Curtis was employed at IBM's semiconductor manufacturing plant in East Fishkill, NY. Because of her exposure to industrial contaminants, Curtis, who was pregnant, repeatedly told her employer that her work environment was unsafe for her and for her unborn child. Curtis's child was subsequently born with serious birth defects. Curtis then sued IBM both in her individual capacity and on her child's behalf in state trial court, claiming that her child's birth defects had been caused by the unhealthy working environment maintained by IBM despite Curtis's warnings. Later, Curtis attempted to amend her complaint to add fraud claims based on her allegation that IBM had known of the unsafe conditions in its plant but had intentionally concealed the fact that its workplace conditions posed a danger to Curtis's unborn child. The trial court, however, refused to allow Curtis to amend her complaint to include the fraud claim.

On appeal, the New York Appellate Division held that the trial court had properly denied Curtis's request to amend her complaint on her own behalf, but should have allowed Curtis to amend the complaint on her child's behalf. Curtis's personal injury lawsuit on her own behalf, the court noted, was time-barred. Thus, Curtis should not be allowed to bring a fraud claim, which had a longer statute of limitations and would therefore not be untimely, based on the same facts as her personal injury claim. However, the court also concluded that a “surviving child injured in utero as the result of a fraudulent statement relied upon by his or her mother does, in fact, possess a valid cause of action.” Accordingly, the court modified the trial court's decision and allowed Curtis to amend her complaint to include claims on of fraudulent misrepresentation, constructive fraud, fraudulent concealment, and negligent misrepresentation on her child's behalf.

OHIO

Passionate Displays of Affection Do Not Constitute Evidence of Sex Discrimination

An electronic plant worker's displays of passionate physical affection for a married co-worker does not constitute evidence of sex discrimination against the married co-worker's husband, who was also an employee of the plant, the Ohio Court of Appeals has ruled. Schwab v. Delphi Packard Elec. Sys., 2003 WL 22118644 (Sep. 12).

Jeffrey Schwab began working for Delphi's Warren, OH, plant in August 1993. In December 1996, he developed a relationship with Terry Jupancha, a married co-worker whose husband worked at the same plant. Eventually the affections of Schwab and Jupancha were openly displayed during work hours. For example, the couple was seen passionately kissing in the plant's lobby. Given the openness of these displays, plant management learned of the relationship and asked Schwab to discontinue it. Around the same time that management approached Schwab about his affair with Jupancha, Schwab was subjected to a number of disciplinary actions, including the filing of an incident report when Schwab gave Jupancha a “goodbye kiss”; threatening to fire him if he was seen holding her hand; asking him to remain in his department and not to see Jupancha even during his personal time; and threatening to level sexual harassment charges against him if he continued his affair with Jupancha, even though Jupancha denied that she had been harassed and eventually divorced her husband and married Schwab. On the basis of these actions, Schwab sued in Ohio state court. The trial court granted summary judgment in favor of Delphi.

The Ohio Court of Appeals affirmed the dismissal of Schwab's claims, holding that there was no evidence in the record to indicate that the company took any action against Schwab specifically because he was a male. Schwab argued on appeal that Delphi's “overshow of supervision” in attempting to control his relationship with Jupancha had subjected him to a hostile work environment. The court rejected this argument. To show that he had suffered unlawful sex-based discrimination, the court held, Schwab had to show that the company's alleged harassment was unwelcome, based on his sex, and was severe and pervasive enough to alter his working conditions. The court held that Schwab could not make out the second element of his purported sexual harassment claim because he could not demonstrate that the company had done anything other than discourage “questionable physical displays of affection in the work place.” Schwab had not shown, for example, that similarly situated women who had similar relationships were treated differently than Schwab had been. Indeed, the court noted, by Schwab's own account, the discrimination he allegedly suffered was based on whom he was dating, not on his gender. Thus, Schwab could not demonstrate that Delphi had violated any law by discouraging his relationship with Jupancha.

CALIFORNIA

Gossiping About Co-Workers Not Protected by First Amendment

The California Court of Appeals has held that the speech of two school district employees who gossiped about two other employees engaging in sexual misconduct was not necessarily subject to First Amendment protection and, if sufficiently disruptive, could even warrant sanctions. Thompson et al. v. Mt. Diablo Unified Sch. Dist., Cal. Ct. App., 2003 WL 22049568 (Cal. Ct. App. Sep. 3).

Cheryl Yoshimura Thompson, the principal at Highlands Elementary School in California, and Ana Doughty, an instructional aide at the school, walked in on two teachers involved in a sexual act in a science lab in October 1997. The school district investigated the incident, announced that “appropriate action” had been taken, and thus indicated that it considered the matter closed. After the incident and investigation, however, Thompson and Doughty continued to gossip about what they had seen. For example, Doughty discussed the incident with a teacher, and Principal Thompson regaled a lunch supervisor with the salacious details. District administration believed that such continued discussion would only impair the school's reputation and felt, in any case, that the incident was a confidential personal matter. Consequently, the school district issued verbal warnings to both employees and later placed a written warning in Thompson's personnel file. The written warning threatened Thompson with termination if her gossip about the incident did not stop. Thompson and Doughty sought damages, claiming that such disciplined impinged on their First Amendment rights. The lower court disagreed.

On appeal, the California Court of Appeals affirmed the lower court. The speech in which the two employees had engaged – which included, for example, a recounting of the sexual incident at a private holiday party – was not the act of two whistleblowers, intended to expose the policies or practices of a public employer as matters of public concern. Rather, this was private scuttlebutt, not the sort of speech that the U.S. Supreme Court held was protected in Pickering v. Board of Education, 391 U.S. 563 (1968). Thus, the court held, the trial court did not err in finding that the two employees' reports of the sexual incident were not protected by the First Amendment.

FLORIDA

Personal E-mails on Government Computers Not 'Public Record'

The Florida Supreme Court has held that public employees' personal e-mails, even when stored on government-owned computer systems, are not subject to disclosure under Florida's public records law. State of Florida v. City of Clearwater, 2003 WL 22097478 (Sep. 11).

A reporter for the Times Publishing Company requested that the City of Clearwater provide copies of all e-mails to or from two employees of the City of Clearwater, FL, for a 2-year period. The employees sorted the e-mails into two categories – public and private – and provided the “public” e-mails to the reporter. They did not provide the “private” e-mails. The Times Publishing Company then sued the City to obtain the private

e-mails as well. The trial court denied the Times Publishing Company's request for a permanent injunction to obtain the emails. An intermediate appellate court affirmed the trial court's decision, holding that that private e-mails were not public records obtainable by the reporter under the Florida Constitution.

The Supreme Court of Florida affirmed. Under the Florida Constitution, any person has the right “to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee.” Florida Statute ' 119.011(1) in turn defines “public records” as any document “made or received pursuant to law or ordinance or in connection with the transaction of official business” by a state agency. The court noted that, as early as the late 19th century, it had defined “public record” to mean any record kept by a public officer in connection with “the duties of his office.” Although the definition of “record” had been recently amended to include electronic transmissions such as e-mails, the court's requirement that a given record must have a connection to state business in order to be considered public was “essentially unchanged.” Because the allegedly private emails in question were personal to the state employees in question and were not made in connection with official state business, the Time Publishing Company had no constitutional right to obtain them. The court also rejected the State Attorney General's argument that the emails were public records because they contained “header” information such as official date and time stamps and routing information, which would make the e-mails comparable to the sorts of phone or mail logs that are clearly public records under Florida law. Unlike such logs, which are single documents themselves, the e-mail headers were created by the employees' mere use of the state's e-mail system. Thus, the “e-mail headers are not 'prepared' with the intent to 'perpetuate, communicate, or formalize knowledge of some type'.” Accordingly, the employees' private e-mails were not public records susceptible to disclosure to the public.

NEW YORK

Child with Birth Defects May Add Fraud Claims to Mother's Personal Injury Suit

An infant who was born with birth defects alleged to be the result of unsafe conditions at her mother's workplace could add fraud claims to her mother's personal injury suit because the employer misrepresented the work environment as safe for women, a New York appellate court has held. Curtis v. IBM Corp., 2002 WL 32168886 (Sep. 22).

Plaintiff Heather Curtis was employed at IBM's semiconductor manufacturing plant in East Fishkill, NY. Because of her exposure to industrial contaminants, Curtis, who was pregnant, repeatedly told her employer that her work environment was unsafe for her and for her unborn child. Curtis's child was subsequently born with serious birth defects. Curtis then sued IBM both in her individual capacity and on her child's behalf in state trial court, claiming that her child's birth defects had been caused by the unhealthy working environment maintained by IBM despite Curtis's warnings. Later, Curtis attempted to amend her complaint to add fraud claims based on her allegation that IBM had known of the unsafe conditions in its plant but had intentionally concealed the fact that its workplace conditions posed a danger to Curtis's unborn child. The trial court, however, refused to allow Curtis to amend her complaint to include the fraud claim.

On appeal, the New York Appellate Division held that the trial court had properly denied Curtis's request to amend her complaint on her own behalf, but should have allowed Curtis to amend the complaint on her child's behalf. Curtis's personal injury lawsuit on her own behalf, the court noted, was time-barred. Thus, Curtis should not be allowed to bring a fraud claim, which had a longer statute of limitations and would therefore not be untimely, based on the same facts as her personal injury claim. However, the court also concluded that a “surviving child injured in utero as the result of a fraudulent statement relied upon by his or her mother does, in fact, possess a valid cause of action.” Accordingly, the court modified the trial court's decision and allowed Curtis to amend her complaint to include claims on of fraudulent misrepresentation, constructive fraud, fraudulent concealment, and negligent misrepresentation on her child's behalf.

OHIO

Passionate Displays of Affection Do Not Constitute Evidence of Sex Discrimination

An electronic plant worker's displays of passionate physical affection for a married co-worker does not constitute evidence of sex discrimination against the married co-worker's husband, who was also an employee of the plant, the Ohio Court of Appeals has ruled. Schwab v. Delphi Packard Elec. Sys., 2003 WL 22118644 (Sep. 12).

Jeffrey Schwab began working for Delphi's Warren, OH, plant in August 1993. In December 1996, he developed a relationship with Terry Jupancha, a married co-worker whose husband worked at the same plant. Eventually the affections of Schwab and Jupancha were openly displayed during work hours. For example, the couple was seen passionately kissing in the plant's lobby. Given the openness of these displays, plant management learned of the relationship and asked Schwab to discontinue it. Around the same time that management approached Schwab about his affair with Jupancha, Schwab was subjected to a number of disciplinary actions, including the filing of an incident report when Schwab gave Jupancha a “goodbye kiss”; threatening to fire him if he was seen holding her hand; asking him to remain in his department and not to see Jupancha even during his personal time; and threatening to level sexual harassment charges against him if he continued his affair with Jupancha, even though Jupancha denied that she had been harassed and eventually divorced her husband and married Schwab. On the basis of these actions, Schwab sued in Ohio state court. The trial court granted summary judgment in favor of Delphi.

The Ohio Court of Appeals affirmed the dismissal of Schwab's claims, holding that there was no evidence in the record to indicate that the company took any action against Schwab specifically because he was a male. Schwab argued on appeal that Delphi's “overshow of supervision” in attempting to control his relationship with Jupancha had subjected him to a hostile work environment. The court rejected this argument. To show that he had suffered unlawful sex-based discrimination, the court held, Schwab had to show that the company's alleged harassment was unwelcome, based on his sex, and was severe and pervasive enough to alter his working conditions. The court held that Schwab could not make out the second element of his purported sexual harassment claim because he could not demonstrate that the company had done anything other than discourage “questionable physical displays of affection in the work place.” Schwab had not shown, for example, that similarly situated women who had similar relationships were treated differently than Schwab had been. Indeed, the court noted, by Schwab's own account, the discrimination he allegedly suffered was based on whom he was dating, not on his gender. Thus, Schwab could not demonstrate that Delphi had violated any law by discouraging his relationship with Jupancha.