Recent Developments from Around the States

George Merino began having marital problems shortly after beginning employment at the dealership. He alleged that the son of the owner, Brian Wells, told him that he could lose his job if he were to leave his wife. Nevertheless, at work, Merino started to spend all of his time with coworker Nikki Pacheco. Workers began complaining about the relationship, stating that it interfered with their work due to Pacheco's being unavailable and the gossip the relationship created. Wells told Merino to stop spending time in Pacheo's office. Wells was concerned about Merino's behavior, having already told Merino twice that it was inappropriate following sexual harassment complaints from another female worker. Wells asked Merino to end the sexual relationship with Pacheo, which Merino denied existed. According to Merino, Wells said he did not want to see Merino's future with the company be compromised by his decisions. Merino finally moved out of his house on Jan. 4, 1999, at which point he was fired. According to Merino, Wells stated he fired Merino because of the inappropriate decisions Merino was making in his personal life. Wells stated it was due to the lack of character Merino displayed.

Merino sued, arguing that his right to privacy was violated as well as his right to freedom of association. The court declared that there is no right to privacy to date a subordinate. Wells instructed Merino to stay away from Pacheco, and as a result, he was on notice that his behavior conflicted with the interests of the company. The court also declared that the plaintiff failed to show that any legal authority that shows how his constitutional right to freedom of association would lead to a tort claim.

ILLINOIS

Deputy Sheriff's Termination for Drinking Tea Unknowingly Containing Cocaine Declared Unjustifiable

An Illinois appeals court stated that the Illinois deputy sheriff's constitutional due process right was violated when Cook County, IL, fired her for testing positive for cocaine from a tea she had drunk. Garrido v. Cook County Sheriff's Merit Bd., 2004 WL 1292006 (Ill. Ct. App. June 9, 2004).

The appellate court reversed the ruling, stating that summary judgment should be granted. Under the doctrine set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), wrongful discharge and tortious interference claims are preempted by federal law. The NLRA has declared it illegal to interfere with workers' rights to join, form, organize, or assist unions. Therefore, because the complaint alleged an unfair labor practice, the plaintiff's claims had to be brought before the National Labor Relations Board first.

The department that Charmaine Garrido worked for as a deputy sheriff had a zero-tolerance drug policy, with referral to the internal merit board when a drug test came up positive. Garrido tested positive for cocaine during a random drug screening for which she was selected on Oct. 5, 2000. At her referral hearing, Garrido did not deny drinking the tea with cocaine. Instead, she presented evidence showing that she did not know cocaine was present in the tea. Having adopted a baby from Peru a year earlier, Garrido and her husband treated the baby at an American hospital in Lima pursuant to the instructions of the physician. The physician suggested feeding the baby Mate de Coca tea, which the physician assured Garrido did not contain cocaine. Garrido then proceeded to purchase some of the tea to drink in Peru, and drank it in the U.S. when she felt sick.

Garrido stated that she had been drinking the tea to calm her stomach because she had the flu the week before her drug test. The tea, legal in Peru although not in the U.S., was tested and shown to contain such a low amount of cocaine that a person drinking it would be unlikely to feel any effects of the drug. The board voted unanimously to fire Garrido for violating the drug policy of the department. Garrido challenged this decision, stating that her substantive due process rights were violated even though the procedural due process was followed. The determination is whether the zero-tolerance policy “was rationally related to the legitimate state objective” of providing a work environment that did not contain illegal drugs. The sheriff's department argued that using knowledge as a factor would allow people to lie about whether they knew they took drugs. The court rejected the sheriff's department argument that Garrido's knowledge of whether cocaine was in the tea was irrelevant. The court continued by stating that though an employee might lie, it does not mean that the question shouldn't be addressed. The evidence of the person's testimony as to whether they knew should be weighed along with everything else.

The court ruled that the board should have considered the circumstances surrounding the violation, and that the board's application of the zero-tolerance policy in this case was not rationally related to a legitimate state goal.

MASSACHUSETTS

Forced Self-Publication Defamation Claims Not Permitted

A manager who alleged that he was forced to provide a defamatory statement about himself when he informed potential employers about why he was fired had no claim under Massachusetts law. White v. Blue Cross and Blue Shield of Massachusetts Inc., 809 N.E.2d 1034 (Mass. June 11, 2004).

Roy White was fired by Blue Cross and Blue Shield after he was accused by a hospital of disclosing confidential financial settlement information. White claimed he did not know that the settlement existed, but Blue Cross did not investigate this claim. White alleged that while Blue Cross did not make any defamatory statements, by causing him to have to tell future employers that he was fired for disclosing confidential information, it was foreseeable that he would have to tell information that Blue Cross knew, or should have known, to be false.

The Supreme Court of Massachusetts ruled that creating an action for compelled self-publication was not wise. The court observed that such a cause of action would have “an unpredictable effect” on employment, as well as conflict with the qualified right for an employer to disclose defamatory information about an employee. In addition, it would be too difficult to calculate damages for such an action as well as restrict the free flow of information.

MICHIGAN

Federal Law Preempts Administrator from Suing

The Michigan Court of Appeals ruled on June 5th that federal law prevents a nursing home administrator from bringing suit alleging wrongful termination after she was fired for failing to fire employees who were performing union activities. Calabrese v. Tendercare of Mich. Inc., 2004 WL 1219655 (Mich. Ct. App. June 3, 2004).

Kimberly Calabrese, an administrator at Wayne Total Living Center, was told by her boss to fire 19 employees, a few at a time, who were involved in union activity. Calabrese alleges that she protested the order, stating that it was illegal, but her boss demanded it be done regardless. One month later, after none of the 19 employees had been fired, her boss fired her. She proceeded to file a lawsuit alleging wrongful discharge. Her boss had the case remanded from federal court to state court, where he moved for dismissal. The trial court denied the motion.

CALIFORNIA

Worker Fired for Leaving Wife Was Not Subject to Discrimination

After leaving his wife, who was friends with the dealership owner, a car dealership finance manager was fired. The manager lost his lawsuit against the owner, alleging his termination was due to marital status discrimination. The California Court of Appeals rejected his appeal on June 10. Merino v. Courtesy Oldsmobile-Cadillac Inc., 2004 WL 1278011 (Cal. Ct. App. June 10, 2004).

George Merino began having marital problems shortly after beginning employment at the dealership. He alleged that the son of the owner, Brian Wells, told him that he could lose his job if he were to leave his wife. Nevertheless, at work, Merino started to spend all of his time with coworker Nikki Pacheco. Workers began complaining about the relationship, stating that it interfered with their work due to Pacheco's being unavailable and the gossip the relationship created. Wells told Merino to stop spending time in Pacheo's office. Wells was concerned about Merino's behavior, having already told Merino twice that it was inappropriate following sexual harassment complaints from another female worker. Wells asked Merino to end the sexual relationship with Pacheo, which Merino denied existed. According to Merino, Wells said he did not want to see Merino's future with the company be compromised by his decisions. Merino finally moved out of his house on Jan. 4, 1999, at which point he was fired. According to Merino, Wells stated he fired Merino because of the inappropriate decisions Merino was making in his personal life. Wells stated it was due to the lack of character Merino displayed.

Merino sued, arguing that his right to privacy was violated as well as his right to freedom of association. The court declared that there is no right to privacy to date a subordinate. Wells instructed Merino to stay away from Pacheco, and as a result, he was on notice that his behavior conflicted with the interests of the company. The court also declared that the plaintiff failed to show that any legal authority that shows how his constitutional right to freedom of association would lead to a tort claim.

ILLINOIS

Deputy Sheriff's Termination for Drinking Tea Unknowingly Containing Cocaine Declared Unjustifiable

An Illinois appeals court stated that the Illinois deputy sheriff's constitutional due process right was violated when Cook County, IL, fired her for testing positive for cocaine from a tea she had drunk. Garrido v. Cook County Sheriff's Merit Bd., 2004 WL 1292006 (Ill. Ct. App. June 9, 2004).

The appellate court reversed the ruling, stating that summary judgment should be granted. Under the doctrine set forth in San Diego Building Trades Council v. Garmon , 359 U.S. 236 (1959), wrongful discharge and tortious interference claims are preempted by federal law. The NLRA has declared it illegal to interfere with workers' rights to join, form, organize, or assist unions. Therefore, because the complaint alleged an unfair labor practice, the plaintiff's claims had to be brought before the National Labor Relations Board first.

The department that Charmaine Garrido worked for as a deputy sheriff had a zero-tolerance drug policy, with referral to the internal merit board when a drug test came up positive. Garrido tested positive for cocaine during a random drug screening for which she was selected on Oct. 5, 2000. At her referral hearing, Garrido did not deny drinking the tea with cocaine. Instead, she presented evidence showing that she did not know cocaine was present in the tea. Having adopted a baby from Peru a year earlier, Garrido and her husband treated the baby at an American hospital in Lima pursuant to the instructions of the physician. The physician suggested feeding the baby Mate de Coca tea, which the physician assured Garrido did not contain cocaine. Garrido then proceeded to purchase some of the tea to drink in Peru, and drank it in the U.S. when she felt sick.

Garrido stated that she had been drinking the tea to calm her stomach because she had the flu the week before her drug test. The tea, legal in Peru although not in the U.S., was tested and shown to contain such a low amount of cocaine that a person drinking it would be unlikely to feel any effects of the drug. The board voted unanimously to fire Garrido for violating the drug policy of the department. Garrido challenged this decision, stating that her substantive due process rights were violated even though the procedural due process was followed. The determination is whether the zero-tolerance policy “was rationally related to the legitimate state objective” of providing a work environment that did not contain illegal drugs. The sheriff's department argued that using knowledge as a factor would allow people to lie about whether they knew they took drugs. The court rejected the sheriff's department argument that Garrido's knowledge of whether cocaine was in the tea was irrelevant. The court continued by stating that though an employee might lie, it does not mean that the question shouldn't be addressed. The evidence of the person's testimony as to whether they knew should be weighed along with everything else.

The court ruled that the board should have considered the circumstances surrounding the violation, and that the board's application of the zero-tolerance policy in this case was not rationally related to a legitimate state goal.

MASSACHUSETTS

Forced Self-Publication Defamation Claims Not Permitted

A manager who alleged that he was forced to provide a defamatory statement about himself when he informed potential employers about why he was fired had no claim under Massachusetts law. White v. Blue Cross and Blue Shield of Massachusetts Inc. , 809 N.E.2d 1034 (Mass. June 11, 2004).

Roy White was fired by Blue Cross and Blue Shield after he was accused by a hospital of disclosing confidential financial settlement information. White claimed he did not know that the settlement existed, but Blue Cross did not investigate this claim. White alleged that while Blue Cross did not make any defamatory statements, by causing him to have to tell future employers that he was fired for disclosing confidential information, it was foreseeable that he would have to tell information that Blue Cross knew, or should have known, to be false.

The Supreme Court of Massachusetts ruled that creating an action for compelled self-publication was not wise. The court observed that such a cause of action would have “an unpredictable effect” on employment, as well as conflict with the qualified right for an employer to disclose defamatory information about an employee. In addition, it would be too difficult to calculate damages for such an action as well as restrict the free flow of information.

MICHIGAN

Federal Law Preempts Administrator from Suing

The Michigan Court of Appeals ruled on June 5th that federal law prevents a nursing home administrator from bringing suit alleging wrongful termination after she was fired for failing to fire employees who were performing union activities. Calabrese v. Tendercare of Mich. Inc., 2004 WL 1219655 (Mich. Ct. App. June 3, 2004).

Kimberly Calabrese, an administrator at Wayne Total Living Center, was told by her boss to fire 19 employees, a few at a time, who were involved in union activity. Calabrese alleges that she protested the order, stating that it was illegal, but her boss demanded it be done regardless. One month later, after none of the 19 employees had been fired, her boss fired her. She proceeded to file a lawsuit alleging wrongful discharge. Her boss had the case remanded from federal court to state court, where he moved for dismissal. The trial court denied the motion.