Alabama school boards do not have 11th Amendment immunity against employee suits
For the last two years, Kathryn Piscitelli (of Orlando, FL) and I have been resisting the Madison City School Board's defense that it is an "arm of the state" and therefore immune from suit under the Eleventh Amendment to the US Constitution. A magistrate judge, a district judge, and now a panel of the Eleventh Circuit Court of Appeals has agreed with us that the Board is not immune. (We were assisted in the Circuit Court by Phil Hostak of Washington DC. Phil did a great job of arguing the case.)
The opinion of the court is available on the court's website.
The underlying lawsuit is a claim under the Uniformed Services Employment and Reemployment Act (USERRA). Our client, Mike Weaver has been called to the service of his county several times during the Iraq and Afghanistan wars. His complaint alleges that, beginning in 2007, his job duties had been reduced when he returned, that his status in the workplace has been decreased, and he has not received a raise since then (but all other central-office employees of the board have had pay raises). Now that we have won on this defense, we are looking forward to litigating the merits of the case.
Roundup of stories on Alabama redistricting argument
Thanks to Rick Hasen for collecting these.
Disclosure: I am one of the counsel for the Alabama Legislative Black Caucus plaintiffs.
Alabama Legislative Black Caucus v. Alabama, preview
Rick Hasen has written a preview of a case on which I am one of the counsel for the petitioners.
The Supreme Court has long ignored Justice Felix Frankfurter's warning to stay out of the political thicket. It regularly hears challenges to redistricting cases (not to mention lots of other types of election cases), raising issues from the one-person, one-vote rule to vote dilution under the Voting Rights Act, to racial and partisan gerrymandering claims. The Court's decision to hear a part of a challenge to Alabama's state legislative redistricting plan enacted after the 2010 census (in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, set for argument on November 12) brings all of these issues together in a seemingly technical but high-stakes case, showing the artificiality of separating issues of race and party in redistricting, featuring a bold role reversal in political parties' use of racial gerrymandering claims, and offering a surprising new threat to the constitutionality of the Voting Rights Act. - Argument preview: Racial gerrymandering, partisan politics, and the future of the Voting Rights Act : SCOTUSblog
Contacting my office
Edward Still Law Firm, LLC
130 Wildwood Parkway
Suite 108 PMB 304
Birmingham AL 35209
phone & fax 205-320-2882
Meetings by appointment only.
Email to me: Please do not email anything confidential to me until I have agreed to take your case. If you don’t want your employer to know what you are telling me, never use your work email to write me. Email: [my last name]@votelaw.com.
ADC files motion for preliminary injunction
ADC is suing the Alabama Attorney General to be overturn the ban on PAC-to-PAC transfers if the transfer is going to be used for independent expenditures. This is the ADC's updated motion for preliminary injunction.
Birmingham News report on suit to undo part of State takeover of city schools
The Birmingham News reports on a lawsuit filed by Edward Still for five voters in the City of Birmingham: The state takeover of Birmingham city schools violated the Voting Rights Act of 1965 by overriding the votes of elected board members, a lawsuit filed this week claims.
The federal lawsuit was filed by five voters, including Birmingham Board of Education members Virginia Volker and Emanuel Ford and Alabama Education Association representative Michael Todd, who lives in the city.
The suit, filed against state Superintendent Tommy Bice, former state Superintendent Ed Richardson - who is leading the takeover in Birmingham - and the state Board of Education, says the takeover transferred power from a majority-black electorate and majority-black school board in Birmingham to the state Board of Education, which has a majority-white membership.
The suit seeks injunctions to stop votes from being overturned while the court is deciding whether the takeover is even allowed. -- "Federal lawsuit claims state violated Voting Rights Act in takeover of Birmingham schools"
"Supreme Court's Arizona immigration law ruling could impact Alabama"
The Birmingham Business Journal reported: A U.S. Supreme Court ruling on Arizona's law targeting illegal immigration could have serious implications for Alabama's version of the law that both supporters and opponents say is even tougher than the Arizona's 2010 law.
In a split decision announced Monday, the court struck down most of Arizona's strict law, but upheld a key provision allowing police to question and briefly detain immigrants they believe to be in the country illegally. ...
The 11th Circuit Court, which is hearing challenges to the Alabama law, had delayed its final ruling until after the high court’s decision on the Arizona law.
According to Birmingham civil rights attorney Edward Still, the court could ask for additional briefings from each side to determine whether Alabama’s law is the same or different from Arizona’s.
“Or they could say, ‘Well, the Alabama statute, in this particular case, is verbatim the same as the provisions that were struck down in Arizona; and therefore, we’ll just apply that,’” he said. -- Read the whole article on the Business Journal site.
Bills proposing amendments to USERRA
Three bills to amend USERRA have been introduced recently.
HR 3670. The Transportation Security Administration (the folks at the airports who can see into you with their Super Detecto Rays) are presently exempt from abiding by USERRA. This bill would make the TSA subject to USERRA. [UPDATE: On 30 May, the House suspended the rules and agreed to this bill on a voice vote.]
S. 2299. Currently, the United States Attorney General can bring suit against a State or State agency on behalf of a servicemember, but the case is styled as an action by the United States against the State of ___. S. 2299 would change the nature of the suit to one that is truly on behalf of the United States. The servicemember whose claim is the basis for the suit may intervene to obtain specific relief.
S. 3233 (the Servicemembers Access to Justice Act). This bill would amend several provisions in USERRA, including the following provisions:
Two USERRA forms for notifying your employer of beginning and ending of military service
Stateside Legal, a web site supported by Pine Tree Legal Assistance of Maine and the Arkansas Legal Services Partnership has two interactive forms for servicemembers' notice to their employers. One is for informing your employer that you are leaving for military service and the other for informing the employer when you will be back and ready to go to work. See http://statesidelegal.org/search/statesidesearch/userra.
USERRA amended to allow suits for hostile work environment
Congress has amended and the President has signed a bill with dozens of provisions to help veterans be retrained, hired, etc. Tucked into the bill is an amendment to USERRA clarifying the definition of a “benefit” in USERRA. The bill adds the italicized words so that it now reads as follows:
The term “benefit”, “benefit of employment”, or “rights and benefits” means the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.
VOW to Hire Heroes Act of 2011, Pub.L. 112-56 § 251, Nov. 21, 2011.
The genesis of the amendment can be traced to a recommendation from the Department of Labor for a “clarification” of the law because of inconsistent court decisions holding both that a cause of action for hostile work environment under USERRA did and did not exist. The Department’s report to Congress stated,
DoL considers it a violation of USERRA for an employer to cause or permit workplace harassment, the creation of a hostile working environment, or to fail to take prompt and effective action to correct harassing conduct because of an individual’s membership in the uniformed service or uniformed service obligations. Although the Department believes that the statute currently supports this reading, in light of the risk of contrary interpretations by the courts, the Department recommends that Congress consider clarifying that USERRA prohibits workplace harassment or the creation of a hostile working environment.
The practical effect of the amendment is to overturn the United States Court of Appeals for the Fifth Circuit’s decision in Carder v. Continental Airlines, Inc., 636 F.3d 172 (March 22, 2011), where the court held, on an issue of first impression, that service members could not sue their employers under USERRA for a hostile work environment,
My Cases: Employment
Byrne v. Galliher, 39 So.3d 1049, 258 Ed. Law Rep. 1267 (Ala. 2009), and Hill v. Galliher, 65 So.3d 362 (Ala. 2010) -- successive appeals on case attacking policies of Department of Postsecondary Education interfering with legislator-employees performing their legislative duties.
Harris v. Marion County Bd. of Educ., 644 So.2d 29, 95 Ed. Law Rep. 808 (Ala.Civ.App. 1994)
Alford v. Ingram, 931 F.Supp. 768 (M.D. Ala. 1996) -- attacked statute on revocation of teacher certificates; while technically losing the case, achieved a revision of the standards used by the state
Nelson v. Alabama Institute for Deaf & Blind, 896 F.Supp. 1108, 131 CCH Lab Cas ¶ 33,318 (N.D. Ala. 1995) -- Fair Labor Standards Act case seeking overtime for 25 employees
Estill v. Alabama State Tenure Commission, 650 So.2d 890, 98 Ed. Law Rep. 586 (Ala.Civ.App. 1994)
Akins v. Randolph County Board of Education, 643 So.2d 995, 95 Ed. Law Rep. 456 (Ala.Civ.App. 1994)
Barnes v. Walker County Board of Education, 661 So.2d 239 (Ala.Civ.App. 1994)
Kilgore v. Jasper City Board of Education, 624 So.2d 603, 86 Ed. Law Rep. 565 (Ala Civ App 1993)
Campbell v. Talladega City Bd. of Educ., 628 So.2d 842, 88 Ed. Law Rep. 516 (Ala.Civ.App. 1993)
Milligan v. Albertville City Bd. of Educ., 628 So.2d 625, 88 Ed. Law Rep. 502 (Ala.Civ.App. 1993)
Alabama State Tenure Commission v. Lee County Board of Education, 595 So.2d 476 (Ala App 1991), rev. sub nom Ex Parte Alabama State Tenure Commission, 595 So.2d 479, 73 Ed. Law Rep. 874 (Ala), on remand 595 So.2d 482 (Ala Civ App 1992) -- I represented the real party in interest, a teacher who had been fired; the result of the case was his reinstatement
Abney v. Baptist Medical Centers, 597 So.2d 682, 7 BNA IER CAS 641 (Ala 1992)
Ex parte Jackson, 625 So.2d 425 (Ala 1992), on remand sub nom., Jackson v. Alabama State Tenure Comm'n, 625 So.2d 430 (Ala Civ App 1993) -- gained tenure for teacher by favorable statutory interpretation of definition of earlier work as teacher with provisional certificate
Ex parte Turner, 601 So.2d 995 (Ala 1992), reversing Monroe County Board of Education v. Turner, 601 So.2d 997 (Ala Civ App 1992) -- represented amicus curiae in support of teacher's claim
Ex Parte Alabama State Tenure Commission (Re: Alabama State Tenure Commission v. Lee County Board of Education), 595 So.2d 479 (Ala 1991)
Greaves v. Jefferson State Junior College, 494 So.2d 409 (Ala 1986) -- unsuccessful age discrimination action
Belcher v. Jefferson County Board of Education, 474 So.2d 1063 (Ala 1985) -- established principle that public agencies must follow own rules, and employees have cause of action based upon failure to do so
High v. Jefferson County Board of Education, 373 So.2d 1089 (Ala 1979)
Spicer v. Board of Trustees of the University of Alabama, 347 So.2d 983 (Ala 1977)
Hanson v. Hearn, 521 So.2d 953 (Ala 1988) -- unsuccessful proceeding to require compliance with earlier consent decree on individual employment
Williams v. Ivey, 484 So.2d 468 (Ala 1985) -- represented county commissioner in action brought against him by employee
Heatherly, Director of the Alabama Department of Industrial Relations v. Benton, 479 So.2d 1285 (Ala Civ App 1985) -- proper treatment of back pay under unemployment compensation laws
Smith v. Civil Service Board of the City of Florence, 52 Ala App 44, 289 So.2d 614 (Ala Civ App 1974) -- successful appeal on trial procedure to be used in appeals from civil service board decisions
Carroll v. BellSouth Advanced Systems, Inc., 867 F.2d 1430, 1989 US App Lexis 1112 (11th Cir. 1989)
Childers v. Morgan County Board of Education, 817 F.2d 1556, 43 FEP Cases (BNA) 1702, 43 EPD (CCH) ¶ 37,211, 39 Ed. Law Rep. 72 (11th Cir. 1987) _- successful in overturning summary judgment against school bus driver in age discrimination in employment case
Byrd v. Morgan County Board of Education, 824 F.2d 974 (11th Cir. 1987)
Williams v. Eastside Mental Health Center, 509 F.Supp. 579 (N.D. Ala. 1981), rev. 669 F.2d 671, 93 Lab Cases (CCH) ¶ 34,147, 15 BNA WH Cases 358 (11th Cir. 1982); cert denied 459 US 976 (1982) -- Fair Labor Standards Act case in which District court ruled that the FLSA does not apply to a private corporation under contract to the State Department of Mental Health because it is performing an integral governmental function; reversed by 11th Circuit in decision defining “integral state function”
Bryant v. Western Electric Co., 572 F.2d 1087, 16 EPD ¶8302 (5th Cir. 1978) -- Title VII case, adequacy of charge
Tillman v. City of Boaz, 548 F.2d 592, 12 EPD ¶11,560 (5th Cir. 1977) -- Title VII case, adequacy of charge in letter form
Armour v. City of Anniston, 597 F.2d 46 (5th Cir. 1979), 20 EPD ¶30,022, vac. and rem. 445 US 940, remanded 622 F.2d 1226 (5th Cir. 1980), on remand 89 F.R.D. 331, 25 EPD ¶31,672 (N.D. Ala. 1980); 654 F.2d 382 (5th Cir. 1981) -- Title VII case against city hospital; class action representation after loss of individual case
Tortorici v. Secretary of HEW, 496 F.Supp. 7 (N.D. Ala. 1979), aff'd sub nom Tortorici v. Harris, 610 F.2d 278, 22 EPD ¶30,585 (5th Cir. 1980) -- Title VII case for white female claiming reverse discrimination
Langley v. State Farm Fire & Casualty Company, 26 EPD ¶31,837, 644 F.2d 1124 (5th Cir B 1981) -- sex discrimination in employment; pregnancy
Perry v. Golub and Falkowski v. Perry, 464 F.Supp. 1016, 18 EPD ¶8805 (N.D. Ala. 1978) -- due process, discharge of government employee
Stewart v. Bailey, 396 F.Supp. 1381 (N.D. Ala. 1975), aff'd 556 F.2d 281, rev'd on reh. 561 F.2d 1195 (5th Cir. 1977) -- teacher dismissal, due process
Allen v. United States Steel Corp, 665 F.2d 689, 33 Fed R. Serv 2d 218, 27 FEP Cases (BNA) 1293, 27 EPD (CCH) ¶ 32,338 (5th Cir B 1982) -- Title VII sex discrimination suit relating to pension and extended vacation benefits
Robinson v. City of Fairfield, 750 F.2d 1507, 40 Fed R Serv 2d 1202, 37 FEP Cases (BNA) 106, 36 EPD (CCH) ¶ 34,962 (11th Cir. 1985) -- represented city in Title VII case
McGee v. Purolator Courier Corp., 430 F.Supp. 1285 (N.D. Ala. 1977) -- attempt to obtain preliminary injunction to keep plaintiff's job while EEOC processed charge.
Johnson v. University College of University of Alabama in Birmingham, 706 F.2d 1205, 77 ALR Fed 259, 31 FEP Cases (BNA) 1744, 32 EPD ¶ 33,732 (11th Cir), cert. denied 464 US 994 (1983) -- revising award of attorneys' fees granted in employment discrimination case
Putman v. Vath, 340 So.2d 26 (Ala 1976) -- suit by Catholic priest against his bishop for breach of contract
In 1981, Isaac Asimov wrote the following limerick on a postcard to Still in celebration of Still’s victory in representing a teacher who had been fired for giving Asimov and John Ciardi’s book Limericks, Too Gross to a student:
Don’t you mess round with Lawyer, Ed Still,
For he puts those opposed through the mill.
Twelve good men and true
Will frown upon you,
And then wait till you find out the bill.
Copyright 2002 Isaac Asimov Estate. All rights reserved. Used by permission.
First Amendment case against portion of Alabama's campaign finance law filed
My co-counsel and I filed a new suit against the provision of Alabama's campaign finance law forbidding PAC-to-PAC transfers. The law basically prohibits any transfer between political actors except personal contributions to any group, PAC contributions to principal campaign committees, and limited payments from principal campaign committees to political parties.
Our organizational client uses its funds to run GOTV drives.
The complaint is linked below.
Co-author, The USERRA Manual (Thompson West, annual editions since 2008) (with Kathryn Piscitelli)
Co-author, "Job Rights of Employees who Serve in the Military: USERRA Rights and Obligations," ATLA Docket (Ark. Trial Lawyers Ass'n), Spring 2008 (with Mary Dryovage and Kathryn S. Piscitelli) [This article has been published in two AAJ newsletters -- Employment Rights Section and Federal Tort and Military Advocacy Section]
Author, “Voting Rights Act of 1965,” “Right to Vote,” “Reynolds v. Sims,” in Encyclopedia of American Law (D. Schultz, ed.) (2002)
Author, “A Simple Agenda for Election Reform,” 50 The National Voter (2001)
Co-author, “Is There a Constitutional Right to Vote and Be Represented? The Case of the District of Columbia,” 48 Am. U. L. Rev. (1999) (edited transcript of conference session)
Co-author, “Alternative Electoral Systems as Voting Rights Remedies,” 18 FEC Journal of Election Administration (1997)
Co-author, “One Person, Seven Votes: The Cumulative Voting Experience in Chilton County, Alabama,” in Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights (1997)
Co-author, “Alternative Voting: How it Works,” Voting Rights Review (Spring 1995) [HTML]
Co-author, “Cumulative Voting as a Remedy in Voting Rights Cases,” 84 National Civic Review (1995)
Author, “Alabama,” in The Quiet Revolution: The Impact of the Voting Rights Act in the South, 1965-1990 (1994)
Author, “Symposium: The Supreme Court, Racial Politics, and the Right to Vote: Shaw v. Reno and the Future of the Voting Rights Act,” 44 Am. U. L. Rev. (1994) (edited transcript of conference)
Author, “Cumulative and Limited Voting in Alabama,” in United States Electoral Systems: Their Impact on Minorities and Women (1992)
Author, “The Hunting of the Gerrymander”, 38 UCLA L. Rev. (1991) (review of Political Gerrymandering and the Courts)
Author, “Voluntary Constituencies: Modified At-Large Voting As A Remedy For Minority Vote Dilution In Judicial Elections,” 9 Yale L. & Pol’y Rev. (1991)
Author, “Alternatives to Single-Member Districts,” in Davidson and Grofman, eds., Minority Vote Dilution (1984)
Author, "Election Reform Bill Will Add Uniformity to U.S. Voting System," op-ed piece in Birmingham News, 20 October 2002
Author, "State must consider what-ifs in revising election laws," op-ed piece in Birmingham News, 17 November 2002
Keep your own timesheet
The U.S. Department of Labor has released an iPhone app called DOL-Timesheet. Here is the description from iTunes Preview: "This is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer. It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek." By the way, the app is free, even though iTunes has a link to "buy and download."
If you have an Android phone, there are several free apps available to do the recording, if not the overtime pay calculation. I have not tried any of these, so I cannot warrant any of them. Go to the Android Market.
USERRA Manual 2011 now available
The USERRA Manual: Uniformed Services Employment and Reemployment Rights, 2011 ed.
By Kathryn Piscitelli, Edward Still
"This title provides practical background and practice information for attorneys assisting military personnel returning from active duty with employment-related issues. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) sets forth a detailed regulatory scheme of leave rights and mechanisms for enforcement of those rights. This title is a must-have for employment practitioners as a large number of Reserve and National Guard personnel will be returning from active duty within the next one to five years." -- West Store
Edward Still appointed to Alabama Advisory Committee to US Civil Rights Commission
The U.S. Commission on Civil Rights has appointed 15 Alabama citizens to its Alabama State Advisory Committee.
Kimberly Tolhurst, Delegated the Authority of the Staff Director of the U.S. Commission on Civil Rights, announced the appointment of Valerie Askew of Birmingham, Norman Baldwin of Tuscaloosa, David Beito of Northport, Lula Bridges of Notasulga, Margaret Brown of Birmingham, Jim Couch of Tuscumbia, Leida Javier-Ferrell of Mobile, Richard Finley of Birmingham, Randy Kelley of Gadsden, Shana Kluck of Vance, Raphael Maharaj of Mobile, Kevin Newsom of Vestavia Hills, Maurice Shevin of Birmingham, L'Tryce Slade of Birmingham, and Edward Still of Homewood. The Commission appointed Professor David Beito as Chairman. The appointments are for two years and members serve without compensation. -- U.S. Civil Rights Commission Announces Appointments to the Alabama State Advisory Committee -- WASHINGTON, April 27, 2011 /PRNewswire-USNewswire/ --
Update on Lynch v. State of Alabama
We are now two weeks into the trial of Lynch v. State of Alabama. The Huntsville Times has been covering the case every day. See their stories here. As we move to Birmingham for the third week of testimony, I wonder if the Birmingham News will pick up the burden of coverage.
Disclosure: The plaintiffs are represented by James Blacksher, Larry Menefee, and me.
Judge enjoins law meant to stop AEA from getting payroll deductions
The Huntsville Times reports: A federal judge issued a temporary injunction this afternoon halting a new state law that could potentially cripple a statewide teachers' organization.
U.S. District Judge Lynwood Smith issued the injunction against a law passed by the Alabama Legislature in December that bans school employees from having their Alabama Education Association membership dues directly deducted from their paychecks. The law was to go into effect on Sunday.
Dr. Paul Hubbert, executive secretary of AEA, said the organization had been hoping for a ruling on the injunction before the law goes into effect.
"Once the law goes into effect, we will lose January dues, which are collected in February," Hubbert said shortly before the ruling was filed. "We may also lose February dues, collected in March. A couple of months' worth of loss makes it hard to operate." Hubbert could not be reached immediately after the filing. -- Read the whole story --> Federal judge halts ban on payroll deduction to Alabama Education Association | al.com
Disclosure: I am one of the attorneys representing the AEA. A copy of the opinion is shown below:
School-funding tax case coming to trial
The Huntsville Times reports: Alabama history is headed before a federal judge in Huntsville, as civil rights attorneys argue that the state's method of funding schools purposefully discriminates based on race.
At stake are the state's property tax rates, the lowest in the nation. Attorney James Blacksher of Birmingham contends that tax structure violates the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, largely by limiting the ability of rural counties to tax wealthy white landowners.
"Because of the anemic property taxes available to most local school systems, low-income students throughout Alabama, who are disproportionately black, suffer from underfunding," contends the suit.
But the state argues that any forced change in tax rates would decrease all property values, injure all property owners who plan to sell, paralyze the commercial real estate market and cause "widespread havoc in Alabama's government and real estate markets." Read the whole story --> Alabama's method of funding schools challenged in court for racial discrimination | al.com (PDF copy)