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Flickr Photo by Carlos Gracia

Legal Report December 2016 


Wrongful termination. A former employee who kept a firearm locked in his car—in violation of company policy—can sue for wrongful termination, a federal court ruled in a decision that reversed a lower court’s ruling.

Robert Swindol worked for Aurora Flight Sciences Corporation in Columbus, Mississippi. In May 2013, Swindol parked his truck in Aurora’s employee parking lot, locking a firearm inside. Management learned about the firearm in Swindol’s truck and fired him later that same day for violating company policy, which prohibited firearms on the firm’s property.

After firing Swindol, Aurora’s human resources manager held a plantwide meeting to inform employees that Swindol was a “security risk” and that they should call 911 if he was seen near the company’s facility, according to court documents.

Swindol filed suit against Aurora for wrongful termination and defamation under state law. He challenged that Aurora could not fire him for having a firearm locked in his vehicle, because that activity was protected under state law. 

He also claimed that the human re­sources manager’s statements constituted slander because they “implicitly accused him of committing a crime or being a dangerous person,” court documents explained.

The district court, however, dismissed the charges. Swindol then appealed to the U.S. Court of Appeals for the Fifth Circuit.

Before issuing a ruling, the appellate court asked the Mississippi State Supreme Court to weigh in on whether a Mississippi employer can be held liable for wrongful termination of an employee for storing a firearm in a locked vehicle on company property. 

The Supreme Court responded that an employer could be held liable for wrongful termination because the state law contained “express legislative action’ that makes terminating an employee for having a firearm inside his locked vehicle on company property ‘legally impermissible.’”

Based on the Supreme Court’s interpretation, the appellate court ruled that Swindol could sue Aurora for wrongful termination, but not for defamation. 

“One of the district court’s grounds for dismissing Swindol’s defamation claim was that Swindol failed to allege that the statements made by the human resources manager were false, although he claimed they were defamatory,” the appellate court explained. “We agree with the district court that Swindol failed to allege the statements were false.” (Swindol v. Aurora Flight Sciences Corporation, U.S. Court of Appeals for the Fifth Circuit, No. 14-60779, 2016)

Marijuana. Termination was not the only appropriate disciplinary action for a public employee caught smoking marijuana during working hours, the Supreme Court of Connecticut ruled. 

Gregory Linhoff had worked for the University of Connecticut Health Center for 15 years and was not subject to any previous discipline. His performance evaluations ranged from “satisfactory” to “excellent” during his employment, according to court documents.

On March 7, 2012, while working the 4 p.m. to midnight shift as a skilled maintainer at the health center, Linhoff was caught smoking marijuana in a state van parked in a secluded area of the health center campus by a health center police officer. 

The officer asked Linhoff what he was doing. Linhoff said he was smoking marijuana, and surrendered two bags of marijuana—which together weighed approximately three quarters of one ounce. The officer arrested Linhoff, who then identified the dealer he purchased the marijuana from. Charges against Linhoff were dismissed.

On June 22, 2012, however, the university fired Linhoff for violating the health center’s rules of conduct, alcohol abuse, and drug-free and smoke-free workplace policy. The university’s director of labor relations, Karen Duffy Wallace, explained to Linhoff in a termination letter that he could no longer be trusted to perform his duties in an acceptable manner.

Linhoff’s union—the Connecticut Employees Union Independent—then contested his termination through a grievance procedure provision in its collective bargaining agreement with the university, which required an arbitration hearing to determine if Linhoff’s dismissal was for just cause and, if not, what should be the remedy.

In the hearing, Wallace testified that, when deciding to fire Linhoff, she took into account both the nature of the violation and the fact that he was smoking marijuana in a state vehicle on state property during his work shift.

“She explained further that a person in [Linhoff’s] position had keys and access to most of the health center campus, including the day care center, research laboratories, and the hospital,” according to court documents. “In Wallace’s view, a person such as [Linhoff] could not be trusted to work independently on the evening shift.”

The arbitrator, however, decided that firing Linhoff was too harsh a punishment under the circumstances and was not required by the health center’s drug-free workplace policy. Instead, the arbitrator said a more appropriate punishment would be six months of unpaid suspension and random drug testing once Linhoff returned to work. 

The state of Connecticut attempted to vacate the arbitrator’s ruling through a lawsuit. A lower court ruled in favor of the state, saying that the “defined public policy” against marijuana in the workplace made firing Linhoff an appropriate course of action. 

Linhoff’s union appealed the ruling, which went before the Supreme Court of Connecticut and ruled in its favor. The court used the Burr Road factors (any guidance offered by relevant statutes, regulations, and other embodiments of the public policy at issue; if the employment at issue implicates public safety or public trust; the relative egregiousness of the grievant’s conduct; and if the grievant is incorrigible) to find that the arbitrator’s decision did not run afoul of Connecticut’s public policy against recreational marijuana use in the workplace.

The court explained that “public policy based, judicial second-guessing of arbitral awards reinstating employees is very uncommon and is reserved for extraordinary circumstances, even when drug or alcohol related violations are at issue.” 

The court further added that “general deference to an experienced arbitrator’s determinations regarding just cause and the appropriate remedy is vital to preserve the effectiveness of an important and efficient forum for the resolution of employment disputes.” (State of Connecticut v. Connecticut Employees Union Independent, Supreme Court of Connecticut, No. 19590, 2016).


Disabilities. The U.S. Department of Justice’s (DOJ’s) final rule incorporating amendments made to the Americans with Disabilities Act (ADA) went into effect on October 11. 

In the 1990s, the U.S. Supreme Court decided cases in a way that denied ADA protection to many individuals that Congress intended to cover, such as those with cancer, diabetes, and epilepsy. 

In response, Congress passed the ADA Amendments Act (ADAAA) in 2008 to reinstate these protections. The DOJ’s final rule implements these protections and is designed to clarify the definition of a disability and how it should be interpreted so covered individuals can establish that they have a disability.

According to the rule, a disability is “a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability.”

The rule also clarifies that the definition of “disability” should be interpreted broadly; and that major life activities now include the operation of major bodily functions—such as neurological, digestive, or respiratory systems; and how to determine whether an individual has a disability. 

“This final rule clarifies Congress’s original mandate that eliminating discrimination against people with disabilities requires an expansive definition of what disability means and who the law covers,” said Principal Deputy Assistant Attorney General Vanita Gupta in a statement. 

The amendments are from the ADAAA, passed in response to several U.S. Supreme Court decisions that interpreted the ADA’s definition of “disability” in a way that denied protections to individuals with cancer, diabetes, and epilepsy, among others. 

The amendments changed the definition of disability to ensure that the term would be “broadly construed and applied without extensive analysis, so that all individuals with disabilities could receive the law’s protections,” the DOJ explained in a press release.​


Terrorism. Congress overrode President Barack Obama’s veto, allowing legislation to become law that gives terrorism victims and their families the ability to sue foreign states and officials for their role in an act of terrorism.

The veto override enacted the Justice Against Sponsors of Terrorism Act (P.L. 114-222). The law removes sovereign immunity in U.S. courts from foreign governments that are not designated state sponsors of terrorism. It authorizes U.S. courts to hear cases involving claims against a foreign state for injuries, death, or damages that occur inside the United States as a result of a tort—including an act of terrorism—committed anywhere by a foreign state or official. 

The law also permits civil claims against foreign states or officials. For instance, it will allow victims of 9/11 and their families to sue Saudi Arabia for any role it may have played in the terrorist attack.​