State and local responsibilities under federal acts and laws: two instances. (Legal Briefs).

Racial discrimination is morally and R ethically wrong, and it is illegal. As with most principles, the concept is simple to state and understand, but often difficult to apply in real life.

Legally, the 13th and 14th amendments to the U.S. Constitution prohibit racial discrimination. That is, racial discrimination is a violation of the 1871 Civil Rights Act, 42 U.S.C. [ss] 1983. If racial discrimination occurs in employment, it is also a violation of the Civil Rights Act of 1964, 42 U.S.C. ?? 2000e.

With almost 40 years of experience in employment discrimination, the courts have well-established standards for a discrimination lawsuit. The first case discussed in this month's column concerns alleged racial discrimination against a sanitarian in Connecticut.

Case 2 involves another form of potential liability for local environmental health personnel, from an unexpected direction. Some local environmental health programs are funded, in whole or in part, with federal money The receipt of federal money usually imposes additional requirements that are legally enforceable. The case concerns the city of Albany, New York, and its obligations to residents upon receipt of federal grant money for developing a program aimed at reducing lead-based paint hazards in low-income housing.

Case #1: Racial Discrimination (1)

On March 13, 1989, Gregory Peters, an African-American, began work for the city of Stamford, Connecticut, as a sanitarian. Two years later, he was promoted to the position of "Sanitarian II."

In 1994 Mr. Peters left Stamford for employment with the city of Hartford. In 1996, he returned to Stamford in a temporary position as a "Provisional Sanitarian II." The next year he accepted a permanent position as a "Health Inspector II," level S-13 (A). Another temporary employee, a white woman, became a "Health Inspector I," level S-11 (E). Each was to receive certain stipends in December 1997. Both Peters and the white woman were hired without any merit testing. For about one year, the white woman's pay was higher than Peters' pay

In accordance with 42 U.S.C. [ss] 2000e, Peters first filed a complaint against the city of Stamford with the Connecticut Commission on Human Rights and Opportunities and the U.S. Equal Employment Opportunities Commission (EEOC). He complained that his lower starting salary and a delay in payment of his stipends were the result of racial discrimination and in retaliation for his opposition to certain enforcement practices of the Stamford Health Department.

Under 42 U.S.C. [ss] 2000e, an employee who believes he or she has been discriminated against must first file a complaint with EEOC within 180 days of the date the discrimination occurred. That time can be extended to 300 days if the employee first, in a timely manner, files a complaint with a state agency responsible for anti-discrimination.

Since Peters filed his complaint with the Connecticut agency on September 22, 1998, all acts of discrimination that may have occurred before November 28, 1997 (300 days earlier), were barred by the statute of limitations unless some exception applied such as a hostile work environment or a continuing violation. Since none of the exceptions applied, any alleged discrimination by the city of Stamford in 1994 or 1996 (hiring as a provisional sanitarian and the agreement on payment of the stipends) was time barred. Nonetheless, any paycheck Peters received after November 28, 1997, that was less than the white woman's pay could he a valid basis for a lawsuit.

In an employment race discrimination case, the plaintiff must first prove

1. membership in a protected class (race, sex, religion, national origin, age, disability);

2. qualification for continued employment;

3. an adverse employment action (e.g., firing or demotion, involuntarily transfer, or failure to hire, promote, or increase pay); and

4. circumstances that give rise to an inference of discrimination.

These elements constitute a prima facie case. Once a plaintiff has established a prima facie case of discrimination, the employer has an opportunity to show a legitimate, non-discriminatory reason for the adverse employment action, If the employer does so, the plaintiff must then prove that the reasons offered by the employer were not the true reasons or were a mere pretext for the discrimination.

For the salary underpayment, it was undisputed that Mr. Peters met the first three parts of the prima facie test. He satisfied the fourth part by showing that a similarly situated white employee was treated better than he was treated. Furthermore, Stamford offered no non-discriminatory reason for the pay differential.

As for the actual payment of the stipends, Stamford showed that its personnel rules required copies of certain certificates. Since Peters had failed to provide the certificates in a timely manner, his pay had been delayed until the copies were received. The reason offered by Stamford was a legitimate, nondiscriminatory reason that Peters could not show as being a mere pretext.

The final issue was retaliation. Peters claimed he was paid less because he opposed and spoke out against selective enforcement practices against minorities by the Stamford Health Department. If an employee opposes an unlawful employment practice, the employer is prohibited from retaliation.

The employee must prove participation in a protected activity, knowledge by the employer of the participation, an adverse employment action, and a causal connection between the protected activity and the adverse employment action. Peters was able to establish the first three parts, but was unable to "produce any evidence indicating a causal connection between the protected activity and the adverse employment action."

The court addressed one other important issue. Generally, the individual state and local government employee who has deprived another employee of his or her constitutional rights is solely liable under 42 U.S.C. [section] 1983. Respondeat superior is inapplicable. (2) A local government, however, is "responsible for its own conduct caused by unconstitutional policies."

An illegal municipal policy or custom may be contained in a rule, regulation, or other published document, or it may be established by statements or actions of an official whose behavior represents official policy of the municipality That official must have "final policymaking authority" In this case, the director of Stamford labor relations appeared to have final policy-making authority for the city and therefore his actions represented the actions of the city of Stamford.

The city's motion for summary judgment was partially granted by the U.S. district court, and the case was scheduled for trial.

Case #2: Liability Under the Toxic Substances Control Act (3)

This case stemmed from a lawsuit brought by a citizens' group under the Toxic Substances Control Act (TSCA), 15 U.S.C. [section] 2619, against the city of Albany New York, and several city officials. Ultimately the case was dismissed on procedural grounds. The legal principles may, however, be important to any environmental health program receiving federal grant funds.

Over a period of years, Albany New York, had received several grants from the U.S. Department of Housing and Urban Development to inspect, evaluate, remediate, and reduce lead-based paint hazards in private housing rented or owned by low-income families. Private contractors did most of the work, and city personnel were responsible for overseeing the inspection, assessment, and abatement of lead hazards in the selected housing.

A citizens' group sued the city and several officials because uncertified personnel had been used and the city had failed to have properly certified supervisors on site during the work. Even though the grants came from HUD, the citizens' group claimed that the city's actions were a violation of the TSCA and that citizens were entitled to a restraining order.

The case was dismissed because the citizens' group failed to identify who in the group was specifically affected by the city's actions. The court did, however, allow the group to amend the complaint to correct the problem.

For local environmental health programs, the real importance of this case is its confirmation that by accepting federal grant money local entities may incur new, possibly unexpected duties and liabilities, which may be different in nature and kind from those imposed by state law.

Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Mr. Sikora by e-mail at [e-mail].

References

(1.) Peters v. City of Stamford, #3:99-CV-764 (U.S.D.C. Conn. 2003) http://www.loislaw.com (11 Apr. 2003).

(2.) For more information about Respondeat superior see Frank P Grad, Public Health Law Manual, 241-242 (2nd ed., American Public Health Association, 1990).

(3.) Arbor Hill Concerned Citizens v. City of Albany, #02-CV-1016 (U.S.D.C. N.D.N.Y. 2003) http:llwww.loislaw.com (11 Apr. 2003).