employment - govt. employment - free speech - First Amendment

Bradley v. West Chester University – 3d Cir. – January 26, 2018

http://www2.ca3.uscourts.gov/opinarch/171588p.pdf

Speech by government employees is constitutionally protected when the employee is speaking “as a citizen, not as an employee,” and when the speech “involve[s] a matter of public concern.”30 If these two prerequisites are not met, a public employee “has no First Amendment cause of action based on his or her employer’s reaction to the speech.”31

In Garcetti v. Ceballos, the United States Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes,” and that, therefore, “the Constitution does not insulate their communications from employer discipline.”32

On the other hand, in Dougherty v. School District of Philadelphia, we held that a school district employee was not speaking pursuant to his official duties—and was instead speaking as a citizen—when he disclosed alleged misconduct by the school superintendent to a local newspaper.40 And in Flora v. County of Luzerne, we held that a public defender sufficiently alleged that he was speaking as a citizen when he initiated a class action lawsuit on behalf of indigent criminal defendants and reported his county’s noncompliance with a Pennsylvania Supreme Court order to the Special Master whose report had given rise to that order.41

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30 Dougherty, 772 F.3d at 987. Here, the parties do not dispute that Ms. Bradley’s speech involved a matter of public concern.

31 Garcetti, 547 U.S. at 418.

32 Id. at 421; see also id. at 421-22 (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”).

40 Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 983, 988 (3d Cir. 2014).

41 Flora v. Cty. of Luzerne, 776 F.3d 169, 173, 179-80 (3d Cir. 2015).

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Query -- What about the state constitution?

UC - self-employment - Uber driver

Lowman v. UCBR – Cmwlth. Court –  en banc – January 24, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/686CD16_1-24-18.pdf?cb=1 (26 pp.)

Donald Lowman petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) that affirmed the Referee’s decision that Claimant was ineligible for benefits under Section 402(h) of the Unemployment Compensation Law.  The Board concluded that Claimant’s work as an Uber driver constituted self-employment that rendered, 43 P.S. §802(h).  In relevant part, Section 402(h) provides that “an employe shall be ineligible for compensation for any week in which he is engaged in self-employment….” 43 P.S. §802(h).

Because the Department of Labor and Industry did not demonstrate that Claimant intended to enter into an independent business venture by becoming an Uber driver, we conclude that he remains eligible for benefits as a matter of law.   Accordingly, we reverse the Board’s April 22, 2016, order and remand for further proceedings.

discriminatory lending - Fair Housing Act - City of Phila. v. Wells Fargo

City of Phila. v. Wells Fargo – ED Pa. – Jan. 16, 2018

https://www.paed.uscourts.gov/documents/opinions/18D0032P.pdf

MEMORANDUM

On May 15, 2017, Plaintiff City of Philadelphia filed its 52-page Complaint alleging one claim against Defendants Wells Fargo & Co., Inc. and Wells Fargo Bank, N.A. for violating the Fair Housing Act, 42 U.S.C. §§ 36-1, et seq. The Complaint accuses Wells Fargo of engaging in discriminatory mortgage-lending practices against African-American and Latino residents of Philadelphia. Wells Fargo’s alleged practices constitute “reverse redlining,” which involves targeting minorities and minority communities with exploitive loan products that have higher costs and worse terms than those offered to similarly situated white borrowers.  

Publicly available loan data has been analyzed by the City to indicate the existence of “at least 1,067 discriminatory high-cost or high-risk loans issued to minority borrowers by Wells Fargo in Philadelphia between 2004 and 2014 that resulted in foreclosure.”  These loans are concentrated in areas of the city that have high rates of poverty and significant AfricanAmerican and Latino populations.  According to the City, this practice has “continue[d] through the present and has not terminated.”

The City alleges disparate treatment and disparate impact as theories for its FHA claim, Compl. and based on those theories, the City alleges two types of injuries: non-economic and economic. For its non-economic injuries, the City alleges that Wells Fargo’s conduct negatively impacts the ability of minority residents to own homes in Philadelphia, which injures the City’s “longstanding and active interest in promoting fair housing and securing the benefits of an integrated community.”  The City alleges that it expends resources combating housing discrimination and that Wells Fargo’s actions have interfered with those efforts. For its economic injuries, the City alleges that the discriminatory loans issued by Wells Fargo cause increases in foreclosures that diminish the City’s tax revenues and increase its spending on municipal services.

To remedy its injuries, the City seeks injunctive relief and damages.  On July 21, 2017, Wells Fargo filed a motion to dismiss and a motion to strike.  On November 3, 2017, Wells Fargo filed a motion to stay and/or limit discovery.

I will deny all motions. The motion to dismiss and motion to stay and/or limit discovery are discussed below, and the motion to strike will be addressed in a separate order

False Claims Act - whistleblower protection - but-for causation required

DiFiore v. CSL Behring, LLC – 3d Cir. – Jan. 3, 2018

http://www2.ca3.uscourts.gov/opinarch/164297p.pdf

Marie DiFiore asserted claims against her former employer, CSL Behring, for retaliation in violation of the False Claims Act, and for wrongful discharge under a theory of constructive discharge in violation of Pennsylvania state law.

Held: An employee’s protected activity must be the “but-for” cause of adverse actions to support a claim of retaliation under the FCA.

child abuse - using drugs during pregnancy

In the Interest of L.B. – Pa. Super. – 12-27-17

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20VacatedRemanded%20%2010336976031162337.pdf?cb=1

Held: A pregnant woman may commit child abuse under the Child Protective Services Law, 23 Pa.C.S. §§ 6301 et seq., based on use of illegal drugs while pregnant,  if CYS establishes that, by using the illegal drugs, the mother intentionally, knowingly, or recklessly caused, or created a reasonable likelihood of bodily injury to a child after birth.