May 2018 Legal Report

Strategic Security
May 2018 Legal Report
 

​Judicial Decisions

HARASSMENT. A U.S. court of appeals upheld a lower court's ruling that a former lieutenant firefighter be awarded front pay, as well as emotional damages, for the harassment she was subjected to while on duty.

Lori Franchina was assigned as a rescue technician to the North Main Street Fire Station in Providence, Rhode Island, in 2002. In 2006, she was promoted to rescue lieutenant and was assigned to work a shift with Andre Ferro, a firefighter with a documented history of sexually harassing female colleagues. Ferro and Franchina had never worked together before.

After Franchina arrived at the station for her shift, Ferro asked if she was a lesbian. She told him it was none of his business, and Ferro responded by saying: "I don't normally like to work with women; but, you know, we like the same thing, so I think we're going to get along."

Franchina told Ferro he should not make comments like that. However, during their shift he continued to make inappropriate remarks to Franchina, according to court documents. Ferro also walked in on Franchina changing clothes and resisted leaving the room when asked.

Franchina did not report the behavior, but Chief Curt Varone heard about the incidents and spoke to her about them. He then filed a written complaint against Ferro charging him with sexual harassment and scheduling a hearing to determine if Ferro would continue to work at the fire department.

After others heard about Ferro's hearing, they began to treat Franchina with "contempt and disdain," court documents said. Other firefighters asked her if she was attempting to get Ferro fired, refused to prepare meals for her or prepared meals that made her ill, used gendered epithets and other profane terms when referring to her, used a whiteboard to write taunts about her, and committed other offenses.

Franchina was transferred in 2007 to the Branch Avenue Station, and initially her experiences there were positive. However, her new colleagues began to exhibit behavior similar to that of her previous colleagues, including engaging in inappropriate behavior on emergency runs—such as flicking "bloody debris" from a suicide-attempt victim onto her.

Franchina went on disability leave for six months and confidentially reported the incident to a fire chief. However, when the chief filed a complaint he told the city's equal employment opportunity officer that Franchina was "blowing [the incident] out of proportion," court documents said.

The equal employment opportunity officer disagreed and found that the pervasiveness of the behavior directed towards Franchina created a hostile work environment for her that the department had failed to stop.

No one was reprimanded as a result of the finding, and Franchina returned to work where the behavior continued. The attacks on Franchina escalated, resulting in her filing a temporary restraining order and then a permanent injunction against a colleague, prohibiting the parties from working together except on emergency calls. A superior in charge of scheduling, however, viewed this order as a "suggestion" and did not follow it, violating the restraining order on four occasions.

Franchina filed a charge of discrimination against the city with the Rhode Island Commission for Human Rights and the U.S. Equal Employment Opportunity Commission (EEOC). She retired in 2013 after being diagnosed with post-traumatic stress due to her work-related incidents. By the time she retired, she had submitted roughly 40 different statements complaining of harassment, discrimination, and retaliation.

A jury ruled in her favor and awarded her punitive, emotional, and front pay damages. The city filed a motion for a new trial and to amend the judgment claiming that Franchina had presented no evidence to prove that the harassment she experienced was in part due to her gender and contesting the award of front pay damages. The appellate court ruled in favor of Franchina.

"The jury heard evidence of repeated hostile, gender-based epithets, ill treatment of women as workers, sexual inneuendos, and preferential treatment for women who were more likely to sleep with the men of the department," the appellate court wrote. "This sampling of evidence demonstrates that the 'accumulated effect…taken together' constitutes a hostile work environment."

The appellate court also upheld the lower court's ruling, awarding Franchina front pay damages. "The abuse Lori Franchina suffered at the hands of the Providence Fire Department is nothing short of abhorrent and, as this case demonstrates, employers should be cautioned that turning a blind eye to blatant discrimination does not generally fare well under anti-discrimination laws like Title VII," the appellate court explained. (Franchina v. City of Providence, U.S. Court of Appeals for the First Circuit, No. 16-2401, 2018)

WHISTLEBLOWERS. Employees who report securities law wrongdoing internally as opposed to directly to the U.S. Securities and Exchange Commission (SEC) are not protected from retaliation under the Dodd-Frank Act, the U.S. Supreme Court ruled.

The Dodd-Frank Act defines a whistleblower as "any individual who provides...information relating to a violation of the securities law to the [SEC], in a manner established, by rule or regulation, by the commission," according to court documents. Whistleblowers are then eligible for an award if the information they provide leads to a successful SEC enforcement action. They are also protected from retaliation for reporting to the SEC.

Paul Somers worked as the vice president of Digital Realty, a real estate investment trust, from 2010 to 2014. Somers alleges that he was fired by the company after reporting suspected securities-law violations to senior management. He did not report these alleged violations to the SEC or file an administrative complaint within 180 days of termination.

Somers sued Digital Realty alleging whistleblower retaliation under Dodd-Frank. Through a series of legal actions, his case reached the U.S. Supreme Court, which unanimously ruled that under the law, whistleblowers are protected from retaliation only if they bring their claims of violations directly to the SEC—not internally.

"Somers did not provide information 'to the commission' before his termination, so he did not qualify as a 'whistleblower' at the time of the alleged retaliation," wrote Justice Ruth Bader Ginsburg for the Court. "He is therefore ineligible to seek relief…" (Digital Realty Trust, Inc., v. Somers, U.S. Supreme Court, No. 16-1276, 2018)​

Regulations

ALERTS. After a series of natural disasters, the U.S. Federal Communications Commission (FCC) voted to require that wireless providers deliver emergency alerts with greater geographical precision.

Government officials can now designate a geographic area that overlaps with a wireless provider's coverage area that they must then deliver alerts to.

"Overbroad alerting can cause public confusion, lead some to opt out of receiving alerts altogether, and in many instances, complicate rescue efforts by unnecessarily causing traffic congestion and overloading call centers," said FCC Chairman Ajit Pai.

California lawmakers had proposed additional emergency alert requirements after a series of wildfires moved rapidly through the state, sometimes without targeted alerts to residents who might be affected.

FIREARMS. U.S. President Donald Trump took executive action to ban devices that can be used to make semiautomatic weapons into automatic-style weapons. Trump issued the order to ban bump stocks, which were used in the Las Vegas shooting that left 59 dead and more than 400 wounded. Bump stocks can be used to drastically increase the speed with which a semi-automatic weapon fires.

Through his executive action, Trump tasked the U.S. Department of Justice with proposing a rule, for notice and comment, that would ban all devices that "turn legal weapons into machine guns," according to a statement.

"Although I desire swift and decisive action, I remain committed to the rule

of law and to the procedures the law prescribes," Trump added. "Doing this the right way will ensure that the resulting regulation is workable and effective and leaves no loopholes."​

Legislation

DATA BREACHES. Australia's new data breach disclosure law went into effect, requiring some organizations to notify its privacy commissioners and individuals affected by data breaches.

Under the Privacy Amendment (Notifiable Data Breaches) law, companies with a turnover of more than $3 million (AUS), credit reporting agencies, health service providers, and government agencies are required to notify individuals affected by a data breach if it is likely to result in serious harm.

Notifications must include the identity and contact information of the organization, a description of the breach, the information that was breached, and recommendations about what steps individuals can take in response to the breach.

These companies and agencies also must notify the Australian privacy and information commissioner, who will then determine if further action is needed. The law also allows the commissioner to direct an agency or business to notify individuals of a serious data breach.

"The new scheme will strengthen the protections afforded to everyone's personal information and will improve transparency in the way that the public and private sectors respond to serious data breaches," said Commissioner Timothy Pilgrim in a statement. "It will also give individuals the opportunity to take steps to minimize the damage that can result from unauthorized use of their personal information."

ABUSE. U.S. President Donald Trump signed into law legislation that extends the duty to report suspected child abuse to additional individuals who interact with minor athletes.

The law (P.L. 115-26) applies to adults who are authorized to interact with minor or amateur athletes by a national governing body or an amateur sports organization that participates in interstate or international amateur athletic competition. These adults are required to report suspected child abuse, including sexual abuse.

Individuals who fail to report these suspicions can be charged with criminal penalties. The law also increases the statute of limitations for victims to file civil remedies up to 10 years from the date the victim discovers the violation or injury. The original statute of limitations was 10 years after the injury occurred.

The law also authorizes athletic national governing bodies to create training, practices, policies, and procedures to prevent abuse of minor or amateur athletes. These bodies are then required to enforce these policies.

Trump signed the law following a major scandal in USA Gymnastics where former team doctor Larry Nassar pleaded guilty to molesting minor gymnasts over several years.

FLORIDA. Florida lawmakers rejected a ban on models of semiautomatic firearms and large capacity magazines in a controversial vote.

Florida House of Representatives members voted not to consider H.B. 219 that would have placed limits on firearms by a margin of 71 to 36. The bill would have banned assault weapons, defined as "selective-fire firearms capable of fully automatic, semiautomatic, or burst fire at the option of the user," as well as all AK series guns, all AR series guns, and a wide range of other models.

The lawmakers turned down the measure less than one week after a shooting at Florida's Marjory Stoneman Douglas high school, where a former student allegedly used an AR-15 and other weapons to kill 17 people and wound multiple others.

ELSEWHERE IN THE COURTS​

Firearms

California gun regulations that require a 10-day waiting period for firearm purchases will stand after the U.S. Supreme Court rejected two appeals challenging the measure. Critics argued that the regulation violates the rights of people whose background checks take less time to complete than the 10-day waiting period window. (Silvester v. Becerra, U.S. Supreme Court, No. 17-342, 2018; Bauer v. Becerra, U.S. Supreme Court, No. 17-719, 2018)

Harassment

Aqua Resources, Inc., a Delaware water and wastewater service company, will pay $150,000 and additional relief to settle racial harassment and retaliation charges. The U.S. Equal Employment Opportunity Commission (EEOC) alleged that a white superintendent and white foreman at the company made repeated offensive comments to and about an African-American foreman and black employees, including "calling them racial epithets such as…'monkey,' and 'boy,'" according to the EEOC. The company then allegedly fired the black foreman for complaining and promoted one of the harassers. (EEOC v. Aqua Resources, Inc., U.S. District Court for the Eastern District of Pennsylvania, No. 2:17-cv-04346, 2018)

Discrimination

A U.S. federal judge approved a settlement that includes a $22.5 million fund for more than 100 employees and former employees who claimed their employer discriminated against them based on their race. Nucor Corporation and Nucor Steel Berkeley in Huger, South Carolina, allegedly created a racially hostile work environment and failed to promote employees based on their race. As part of the settlement, the company will provide training on its nondiscrimination and harassment policies on an annual basis, communicate the policies on the company intranet, and include in the policies that employees can be fired for racial harassment. (Brown v. Nucor, U.S. District Court for the District of South Carolina Charleston Division, No. 2:04-22005-12BG, 2018)