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Legal Report September 2008


RETALIATION. The U.S. Supreme Court has ruled that federal employees who are retaliated against after suing for age discrimination may sue their employers even though federal law does not specifically provide for retaliation claims.

Myrna Gomez-Perez worked as a distribution clerk for the United States Postal Service (USPS) in Puerto Rico. She was 45 years old in October 2002 when she requested a transfer to another post office in Puerto Rico to be closer to her ill mother. The USPS approved the transfer.

A month later, Gomez-Perez put in a request to be transferred back to her old job. The position had already been filled so the request was denied. Gomez-Perez filed an age discrimination lawsuit against the USPS.

After Gomez-Perez filed the lawsuit, her work environment changed. She was called into various meetings with her supervisor and falsely accused of poor performance and sexual harassment. Her work hours were drastically reduced and coworkers told her to “go back to where she belonged.”

Gomez-Perez filed a retaliation lawsuit against the USPS under the Age Discrimination and Employment Act of 1967 (ADEA). The USPS requested summary judgment—a hearing based on the facts of a case, without a trial—arguing that the ADEA’s provision against retaliation only applies to private-sector employment and that federal government employees do not have this legal recourse.

The U.S. Court of Appeals for the First Circuit granted the summary judgment, agreeing with the USPS that the ADEA’s federal-sector protections do not include retaliation. Gomez-Perez appealed.

The U.S. Supreme Court overturned the lower court’s ruling. The Court found that the crime of retaliation flows directly from the claims of discrimination. The Court further noted that the defense argument that lawmakers did not intend retaliation to apply to federal workers but the private sector only was unpersuasive. (Gomez-Perez v. Potter, U.S. Supreme Court, No. 06-1321, 2008)

EMPLOYMENT. A California appeals court has ruled that an employer was not negligent for hiring an employee with a juvenile (sealed) record and cannot be held liable for the actions of that employee who beat a customer with a lead pipe.

In February 2004, Juan Rodriguez Flores went to an AutoZone store to buy motor oil. An AutoZone employee, Erwin Gomez, was standing nearby. Flores made a noise to get Gomez’s attention and then asked for the price of a case of motor oil. Gomez told Flores that he should have said “excuse me” instead of making a noise to get attention. Gomez then asked the customer if he was too stupid to read for himself the motor oil prices displayed on the shelf.

Flores told Gomez that he should not have come to work if he didn’t want to do his job. Gomez, who was holding a metal pipe, told Flores, “No one will tell me what to do.” Gomez then hit Flores on the head with the pipe.

Flores filed assault charges against Gomez and sued AutoZone for negligence in the assault and for negligent hiring, training, and retention. Flores argued that AutoZone should have known that Gomez was a danger to others.

Gomez had a juvenile record indicating that he had been convicted of attempted murder. Also, a year before the incident with Flores, Gomez had been disciplined for a “loud and inappropriate” altercation with a customer.

Flores asserted that the company should have conducted a background check on Gomez, which might have indicated a propensity for violence. Further, lawyers for Flores argued in the court case that the company should have implemented a testing procedure to determine whether employees should be allowed to work with the public and a training program to ensure that employees would deal appropriately with customers.

AutoZone requested summary judgment, arguing that Gomez’s action were “perverse and beyond any human decency” and were, therefore, outside the course and scope of his employment. The company also claimed that it did not negligently hire Gomez because it could not have known about his sealed juvenile record.

The Superior Court of Orange County (California) granted the summary judgment ruling that the company could not have foreseen Gomez’s actions and that the assault was outside the course and scope of his employment. Flores appealed the decision.

A state appeals court agreed with the lower court’s ruling. The court noted that an employer has no duty to investigate, much less uncover, an employee’s sealed juvenile records.

The court further noted that the facts of this case did not establish that a retail establishment owes customers a duty to conduct thorough background checks on employees or administer personality tests to them. In the written opinion of the case, the court said that: “As for the assertion that Flores’ injuries stemmed from AutoZone’s failure to properly train Gomez, we note that it borders on the absurd to suggest that Gomez might have been dissuaded from his attack if only AutoZone had provided more training concerning the inappropriateness of punching out customers.” (Flores v. AutoZone West, Inc., Court of Appeal for the State of California, Fourth Appellate District, No. G038322, 2008)


BORDER SECURITY. A bill (H.R. 3916) that would encourage the development of new border security technology—especially with regard to unmanned aerial vehicles, technology to detect tunnels, and an anticounterfeiting program—has been approved by the House Science and Technology Committee. (The bill has also been approved by the Homeland Security Committee.) The House of Representatives must take up the measure for it to proceed.

Under the bill, the Department of Homeland Security (DHS) would be required to spell out the requirements, expected use, and operational concept of any new border or maritime security technology.

The measure would also require that the National Research Council conduct an assessment of the basic needs in border and maritime security.

INTELLECTUAL PROPERTY. The House of Representatives has approved a bill (H.R. 4279) that would increase penalties for theft of intellectual property. The Senate has announced that it will consider the measure.

The bill would enhance criminal penalties for dealing in counterfeit labels or packaging. It would also enhance penalties for causing serious bodily harm or death while dealing in counterfeit goods or services.

In addition, the bill would require that courts seal records in lawsuits concerning intellectual property theft to encourage more companies to report such incidents. The measure would require that federal grant programs supporting study of computer crime include Internet-based copyright infringement among the issues eligible for funding.


A bill (H.R. 1662) that will provide funding for site security at some federal facilities has been included in an appropriations bill funding the Department of the Interior. The bill has been signed into law (P.L. 110-229).

The law will allocate money to facilities operated by the Bureau of Reclamation to hire more security officers and to purchase equipment needed by those officers. The Bureau of Reclamation oversees water resource management and water diversion, delivery, and storage facilities. The agency also controls numerous hydroelectric power stations throughout the United States.

ONLINE DECENCY. A bill (S. 1965) designed to protect children from indecent online content has been approved by the Senate and is now pending in the House Energy and Commerce Committee.

Under the bill, the Federal Trade Commission (FTC) would be required to launch a public awareness and education campaign on the dangers of Internet predators, cyberstalking, and cyberbullying. The government would be required to review and evaluate new technology designed to protect children from inappropriate Internet content. The government would keep track of industry efforts to promote online safety for children. It would also review any records that Internet service providers might keep of child pornography found on their systems.

S. 1965 would require that all elementary and secondary schools with computer access educate students on appropriate online behavior.

The bill would impose a forfeiture penalty on Internet service providers who fail to report online child pornography—a requirement under the Victims of Child Abuse Act of 1990.

SCHOOL SAFETY. A bill (H.R. 2352) that would provide grants to schools to purchase security equipment has been approved by the House Judiciary Committee. The House of Representatives has not announced whether it will consider the measure.

Under the bill, public elementary and secondary schools could use grant money to purchase surveillance equipment or establish hotlines for reporting potentially dangerous students and situations. The measure would require that any school using the grants conduct an annual campus-safety assessment in consultation with local law-enforcement officials and implement a campus emergency-response plan that addresses a comprehensive set of emergency situations including natural disasters, active-shooter situations, and terrorism.

H.R. 2352 would establish an interagency task force under the Secretary of Education to develop and dispense school safety guidelines.


West Virginia

INFORMATION SECURITY. A new West Virginia law (formerly S.B. 340) requires that any individual or company that owns or licenses computerized data containing the personal information of others provide notice of security breaches. The law requires notification to anyone whose unencrypted and unredacted information was accessed, or was believed to be accessed, by an unauthorized person.


REAL ID. Arizona Governor Janet Napolitano has signed a law (formerly H.B. 2677) prohibiting the state from complying with the federal REAL ID Act of 2007. Arizona is the 21st state to outlaw the act, which requires that states issue federally regulated ID cards.

This column should not be construed as legal or legislative advice.