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Legal Report June 2011


DISCRIMINATION. The U.S. Supreme Court has ruled that an employer is liable for discrimination against an employee who was a member of the U.S. Army Reserves. The Court ruled that even though the person who fired the reservist had no discriminatory motives, she relied on information from those who did.

Vincent Staub worked as a technician for Proctor Hospital in 2004. He was also a member of the U.S. Army Reserves. His commitment to the Army required that Staub attend drills one weekend a month and training for two to three weeks a year.

Janice Mulally, Staub’s immediate supervisor, and Michael Korenchuk, Mulally’s supervisor, were antagonistic towards Staub’s obligations to the reserves. Mulally gave Staub additional shifts without notice to make up for the time Staub took off to train. Mulally told Staub’s coworker that the military obligations put a strain on the department and asked another employee to help her “get rid of” Staub.

In January 2004, Mulally disciplined Staub for violating a hospital rule requiring him to stay in his work area whenever he was not attending to a patient. However, Staub contended that there was no such rule at the hospital and that, even if there were, he did not violate it. As part of his disciplinary action, Staub was required to notify Mulally or Korenchuk when his cases were finished and he had no waiting patients. In April, Korenchuk notified Linda Buck, the hospital’s vice president of human resources, that Staub had violated the terms of his disciplinary action by failing to notify a supervisor before leaving his work area. (Staub claimed that he left a voice message for Korenchuk and did not break the rules.) Buck reviewed Staub’s personnel file and then fired him, based on a recommendation from Korenchuk.

Staub challenged his termination through the hospital’s grievance process. He claimed that Mulally fabricated the original disciplinary action and the violation of that action because she was hostile towards his military obligations. Buck did not consult Mulally about the allegation. Instead, she upheld Staub’s termination.

Staub then sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The law makes it illegal for an employer to “deny employment, reemployment, retention in employment, promotion, or any benefit of employment” because of a person’s obligation to perform military service. Staub argued that while Buck did not have any animosity towards him, she relied on tainted information from Mulally and Korenchuk in her decision to fire him. A jury found in favor of Staub and awarded him more than $57,000 in damages.

The hospital appealed the decision. The U.S. Court of Appeals for the Seventh Circuit reversed the decision, ruling that Buck based her decision on Staub’s employment file as well as recommendations from Mulally and Korenchuk. In the written opinion of the decision, the appeals court noted that “it is enough that the decision maker is not wholly dependent on a single source of information and conducts her own investigation in the facts relevant to the decision.”

The U.S. Supreme Court overturned the decision, finding that the intent of Mulally and Korenchuk cannot be separated from Buck’s decision. The Court noted that supporting the hospital would mean that by reviewing an employee file, “the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action.”

The Court also ruled that an independent investigation does not necessarily protect a company. “The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision,” noted the Court.

However, the original jury verdict was not reinstated. The U.S. Supreme Court ruled that an appellate court must take a fresh look at the facts of the case again to determine whether a new jury trial is warranted. (Staub v. Proctor Hospital, U.S. Supreme Court, No. 09-400, 2011)

SENSITIVE INFORMATION. The U.S. Supreme Court has issued a ruling clarifying what exemptions government agencies may use to withhold information under the Freedom of Information Act (FOIA).

Glen Milner filed a FOIA request with the U.S. Navy to obtain records on explosives. Specifically, Milner wanted the Explosive Safety Quantity Distance (ESQD) data on munitions stored at Naval Magazine Indian Island, a Naval base in Puget Sound, Washington. The ESQD measures the minimum separation distances for different types of explosives, helping the Navy build storage facilities a safe distance from one another and preventing chain reactions in case of detonation. The Navy refused to release the information, citing Exemption 2 of the FOIA. This exemption protects information “related solely to the internal personnel rules and practices of an agency.”

Milner filed a lawsuit to compel the Navy to release the information. The Navy requested summary judgment—a hearing based on the facts of a case without a trial. The Navy argued that disclosing the information would threaten the security of the base and the surrounding community. The U.S. District Court for the Western District of Washington granted the summary judgment.

Milner appealed the decision. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s decision. Milner then appealed to the U.S. Supreme Court.

The Court ruled that the Navy could not withhold the information based on Exemption 2. That exemption, ruled the court, applies only to records on employee relations and human resources issues. The Court noted that a ruling on the issue was required because courts in appellate jurisdictions around the country have increasingly been using Exemption 2 to withhold information that clearly is not related to internal personnel matters. In remanding the case, the Court noted that the appeals court could determine whether other FOIA exemptions, such as those protecting classified or law enforcement information, could be used to protect the ESQD data. (Milner v. Department of the Navy, U.S. Supreme Court, No. 09-1163, 2011)


TRESPASSING. A bill (H.R. 347) that strengthens penalties for trespassing on certain federal properties has been approved by the House of Representatives and is now pending in the Senate Judiciary Committee.

Current federal law prohibits unauthorized entry to any building or grounds where the President is visiting. However, there is no federal law specifically prohibiting unlawful entry to the White House and its grounds or the vice president’s residence and its grounds. To prosecute unauthorized attempts to enter these areas, law enforcement must use a provision in the laws of the District of Columbia. Under these statutes, violators are guilty of a minor trespassing offense.

H.R. 347 would make it illegal for anyone to knowingly enter or remain in the White House or grounds or the vice president’s residence or grounds without permission. The bill would also make it illegal to knowingly impede or disrupt government business or official functions in either location or to obstruct or impede ingress or egress to either location.

Under the bill, violators would be subject to a fine and up to one year in prison. If the violator carries a weapon or firearm or if the act results in significant bodily injury, the term of imprisonment could reach 10 years.

AIRPORT SCREENING. A new bill (S. 318) introduced by Sen. Frank Lautenberg (D-NJ) would require additional security at airport checkpoints and would increase penalties for those who circumvent screening.

Under the bill, the government would mandate the use of security cameras to monitor all screening areas and all locations where passengers exit sterile parts of the airport. The camera specifications and other requirements such as maintenance and testing would be set out by the government via regulation. Transportation Security Administration (TSA) employees would have access to the cameras and would determine how data from the camera feeds would be viewed, recorded, and stored.

S. 318 would require that the TSA study airports in general and make recommendations to Congress on how to improve security. In these recommendations, the TSA would pay special attention to security in the areas where passengers exit the sterile portions of the airport.

The bill has no cosponsors and has been referred to the Senate Commerce, Science, and Transportation Committee.

TERRORISM. A bill (S. 86) introduced by Sen. David Vitter (R-LA) is designed to prevent terrorists from obtaining credit cards.

The bill is an attempt to close a loophole that allowed the 9/11 hijackers, some of whom were in the United States illegally, to obtain credit cards to finance their activities. S. 86 would only allow financial institutions to accept certain types of identification from noncitizens for the purpose of opening an account. The bill would allow banks to accept only a Social Security number, an alien identification card number, or a valid foreign passport as identification in such circumstances. No other documents issued by a foreign government would be accepted.

The bill has no cosponsors and has been referred to the Senate Banking, Housing, and Urban Affairs Committee.


ELDER ABUSE. A bill (A.B. 40) introduced in the California Legislature would amend state law regarding elder abuse. Under current law, certain people, referred to as mandated reporters, must report the physical or financial abuse of an elderly person. A mandated reporter is defined as an administrator, supervisor, or licensed staff in public or private facilities who provides service to elderly people or dependent adults. Health practitioners, clergy members, and protective services employees are also considered mandated reporters. Under the new bill, these mandated reporters would be required to notify two specific entities—the local ombudsman for the care facility and local law enforcement.

TASERS. A bill (H.B. 3) introduced in the Vermont General Assembly would require that law enforcement officers complete certain types of training before they would be allowed to carry Tasers. Under the bill, officers would be required to undergo training on how to interact with people experiencing a mental health crisis. The training would be designed and administered by the state’s criminal justice training council.

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