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The City of Ontario had issued pagers to City employees, including Quon, and permitted the employees to use the pagers for personal matters.  To assess whether the service provider's existing character limits were reasonable, the City asked for and received a transcript of Quon's text messages. Lo and behold, some of them were sexually explicit. The City referred the text messages to Internal Affairs to investigate whether discipline was appropriate.  Quon and the non-employee persons which whom he exchanged the messages brought suit against the City and the service provider for the invasion of their privacy. They relied on the Stored Communications Act (SCA), 18 U. S. C. §2701, and the Civil Rights Act of 1871, 42 U. S. C. §1983.

A jury determined that the City had a legitimate purpose to request the text messages, but the Ninth Circuit reversed, holding that the search was unreasonable because the City had less invasive means of assessing how many text messages it should pay for. The Supreme Court agreed to hear the appeal of the City of Ontario, but not the appeal by the service provider.

The majority's opinion recognizes that, "The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear." It adds, "Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices." The Court accepted an argument from the Brief for Electronic Frontier Foundation in saying that, "many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency." It also noticed that two states have passed laws requiring employer notification to employees about monitoring of their electronic communications. Del. Code Ann., Tit. 19, §705 (2005); Conn. Gen. Stat. Ann.§31–48d (2003).

Speaking of modern technology, the Court revealed that its viewpoint comes from the affluent in saying, "one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own." Lower income workers, of course, would not have the same opportunities.

The Court recognizes that when it considered whether government employers need a warrant to search employee workspaces, the Court did not come to agreement. O’Connor v. Ortega, 480 U. S. 709, 711 (1987). Justice Scalia concluded that the Fourth Amendment requires a warrant the same as it does outside of government offices. Four justices said that government could make a warrantless search under these conditions:

Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search. 480 U. S., at 725–726.

The Court approved of the jury's finding that the City's initial purpose for the search (assessing the character limit) was reasonable. It also found that the City's search was not excessive because it sought only the messages of two months, and the City redacted messages sent or received when Sgt. Quon was off-duty. The Court ignored the less intrusive means the City could have used.  This was pivotal to the Ninth Circuit's opinion, but Justice Kennedy apparently does not want government officials to be burdened with consideration of the less intrusive means to search for what they want. His opinion states directly that the Supreme Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” The Court said that since Sgt. Quon was a police officer, he should know that his communications would come under "legal scrutiny." I think that as a law enforcement officer, Sgt. Quon would know that the Fourth Amendment requires government to get a search warrant.

Most upsetting to me is the Court's conclusion that even if the City's access to the text messages violated the Stored Communications Act, it could still be reasonable.  That is, the Supreme Court says that it is sometimes reasonable to violate the law. Indeed, the Court cites two other cases in which searches that violated some law were still found to be reasonable. Virginia v. Moore, 553 U. S. 164, 168 (2008) (search incident to an arrest that was illegal under state law was reasonable); California v. Greenwood, 486 U. S. 35, 43 (1988) (rejecting argument that if state law forbade police search of individual’s garbage the search would violate the Fourth Amendment).

The Court held that since Quon and his friends argued that the City's violation of Quon's rights meant that it also violated the rights of his friends, then those friends gave up their right to argue that their individual rights were violated.  The Court held that the friends gave up their right to argue for their individual privacy rights.  This leaves the door open for the non-employee parties to an e-mail to make their privacy claims directly against the government. After all, someone might respond to an e-mail or text message without realizing that the recipient is using a government computer or device to read them.

In concurring, Justice Stevens noted that the outcome in O'Connor was different because the government there was conducting an investigatory search.  In that case, the employee's reasonable expectation of privacy drove the analysis.

Justice Scalia also wrote a concurring opinion gloating about how hard it is for the Court to decide cases like this.  If the Court had adopted his proposal in O'Connor (that the Fourth Amendment applies), it would not have to dip its toe into the flowing waters of modern technology. Still, Scalia agrees that the City's search was reasonable and therefore did not violate the Fourth Amendment.

There were no dissents.

When teachers speak out about what a child really needs to learn, they find school managers well motivated to run them out of their jobs.  Special education is expensive, and getting each child the individual program best suited to his or her needs is even more expensive.  In almost all cases, teachers will tell the parents what the child needs, and then add, "if you tell anyone that I told you this, I will deny it; I cannot lose my job."  Even though most teachers have union contracts and representation, they find that union leaders are more interested in trying to save limited school dollars for teacher pay and benefits.  This is yet another example of why we need a comprehensive national whistleblower protection law that will protect all employees when they speak truth to power.

When the Court came to session, Justice Scalia announced the 5-4 decision in favor of the Federal Communications Commission (FCC) and upholding its fines against Fox Television for fleeting expletives. The case is FCC v. Fox. As Justice Scalia described the facts, without repeating the F word and S word used by Paris Hilton and Nicole Richie, Justice Stevens started cracking up.  I wondered if he voted to accept the case just to see his colleague have to describe the 2003 Billboard Music Awards ceremony.  Anyway, as Justice Scalia described his reasons for allowing the FCC to change the rules about profanity on television, I heard a Court give freedom to the executive branch to change policy as it sees fit, even if there is no science to support it.  "We find no basis ... for a requirement that all agency change be subjected to more searching review." Slip opinion at page 10. An agency, "need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates." Justice Scalia also rejected the networks' claim that the FCC should have some basis in science to show that there is some harm to children before changing its rule on that basis.  "If the Constitution itself demands of agencies no more scientifically certain criteria to comply with the First Amendment, neither does the Administrative Procedure Act to comply with the requirement of reasoned decision-making." Slip opinion at page 16. These holdings open the door for a new administration to recast federal regulations to fit its own policies.  I wonder if Justice Scalia will be as supportive when those regulations impinge on management discretion on issues other than allowing expletives on television.

In 2002, Nashville's Metropolitan Government began investigating rumors of sexual harassment by MetroSchool District’s employee relations director, Gene Hughes. A human resources investigator asked Vicky Crawford whether she had witnessed “inappropriate behavior” by Hughes.  Crawford had worked for the schools for over thirty (30) years.  Crawford answered that she herself had experienced inappropriate conduct by Hughes.  She detailed how Hughes had grabbed his crotch to punctuate his claim, "You know what's up."  Crawford reported that Hughes often put his crotch up to her window.  Crawford also revealed that Hughes once grabbed her head and pulled it toward his crotch.  Other employees reported sexual harassment by Hughes.  The Metro Government took no action against Hughes, but fired Crawford claiming embezzlement. Crawford claimed that was retaliation for blowing the whistle on Hughes' sexual harassment.

The lower courts dismissed Crawford's claims.  Those courts reasoned that since Crawford had not initiated any official complaint, she had not "participated" in a proceeding, and had not "opposed" any unlawful discrimination.  The Supreme Court noted that lower courts had disagreed on what "opposition" is protected, and it took Crawford's case to resolve the conflict.

Crawford's case arises from the Civil Rights Act of 1964 which prohibits discrimination in employment on the basis of race, sex, national origin and religion.  Like many employee rights laws, it prohibits retaliation for those employees who "participate" in proceedings, or "oppose" unlawful practices.  These two clauses have different rules of protection for whistleblowers.  Under the "participation" clause, employees are protected when they file official complaints, or serve as witnesses, regardless of the merits of the case.  Under the "opposition" clause, employees must show that they had a reasonable basis to believe that there was an actual violation of the law, and that the employer's retaliation was on account of some "opposition" to that violation.

The Court said that, "we would naturally use the word [oppose] to speak of someone who has taken no action at all to advance a position beyond disclosing it." The Supreme Court made clear that employees would be protected for, say, "refusing to follow a supervisor’s order to fire ajunior worker for discriminatory reasons." The Court explains, "nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question."

The Court recalls that the "primary objective" of Title VII is to “avoid harm” to employees. "If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others." The Court noted that this is no imaginary horrible given the documented indications that "fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.”

In its footnote 2, the Court rejected Metro's claim that Crawford should lose protection because she once told Hughes "bite me" and on other occasion gave him the finger.  The Court said that, "Crawford gave no indication that Hughes’s gross clowning was anything but offensive to her."

Given that the Supreme Court decided the lower courts were wrong about the scope of the opposition clause, the Court did not reach the issue of whether Crawford was protected by the participation clause.  It is allowing the lower courts to reconsider that issue.

Two justices filed a separate "concurring" opinion to say that the Court's holding should be limited to testifying about unlawful conduct in an internal investigation.  They argue that otherwise an employee could make out a case merely by having an opinion that is against unlawful discrimination, even if that opinion is never expressed to the employer.  This could lead to difficult issues of proof about when an employer learned about such an opinion.  These justices also noted that the number of retaliation complaints filed with EEOC has increased.  That these two justices could not get the majority to adopt their views could support arguments in favor of the claims these two justices were concerned about.

While this outcome was expected from the Court's acceptance of this case, and from the justices' comments during oral argument, it is still an important advance for whistleblowers.  The Supreme Court makes clear that it is our national policy to protect those who speak out about violations, and we are not going to accept employers' attempts to limit the rights that are there to further the public interest.

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NATIONAL WHISTLEBLOWER CENTER

FOR IMMEDIATE RELEASE
APRIL 21, 2008

U.S. Supreme Court Refuses to Hear Murphy v. IRS
Advocates To Continue Pressing for Changes in Civil Rights Tax Law

WASHINGTON, DC -- Today, the United States Supreme Court announced its decision not to grant certiorari in the case of Murphy v. IRS. The order, posted on the Court's website this morning, means that the IRS can continue to tax non-pecuniary compensatory damages awarded to victims of whistleblower retaliation and other civil rights violations. These damage awards, which are intended to make the victim "whole" again, include payments for loss of reputation and emotional distress.

The case was brought by Marrita Murphy, an environmental whistleblower who won her case before Department of Labor, and was awarded compensatory damages to vindicate her rights under six federal environmental whistleblower statutes. Murphy filed suit when the IRS demanded that she pay taxes on the "make-whole" award as if it were income. After having her case dismissed, Murphy filed an appeal.

After full briefing and oral argument, the Appeals court initially held that Murphy's award was not income and the tax on her damages violated the U.S. Constitution. Then, under pressure from the Bush Administration, the judges decided to rehear the case. In this ruling, Murphy II, the D.C. Circuit reversed its own previous decision, declaring that non-physical compensatory damages are taxable as gross income.

National Whistleblower Center General Counsel David K Colapinto, who represents Ms. Murphy, released the following statements regarding the Court's decision

"The DC Circuit's decision was contradictory and wrong. It will have a tragic impact on thousands of whistleblowers and victims of discrimination. We are not surprised though, that the Supreme Court declined to hear the case, as there was not a traditional "split in the circuits," as the DC Circuit was the first court to take this issue on. Given the DC Circuit's difficulty in dealing with this issue, I expect that it will be taken up in other courts across the country."

"It is unfair and unconstitutional to tax victims of discrimination and retaliation when the awards were simply compensation to make them whole again. The money is to restore a loss for personal injury; it is not income."

Unfortunately, as a result of the Court's decision not to hear the Murphy case, whistleblowers and other civil rights victims whose make whole compensatory damages awards are taxed will have to continue to fight the IRS through the courts. The only alternative to continued litigation is for Congress to change the tax code.

Currently pending before Congress is the Civil Rights Tax Relief Act of 2007 ("CRTRA"), H.R. 1540, which would end unfair taxation of noneconomic damages received by those who have suffered unlawful discrimination in the workplace or other violations of their employment rights.

The CRTRA was introduced in the House by Representative John Lewis (D-GA), who was joined by a bipartisan group of original CRTRA cosponsors, including Representatives Deborah Pryce (R-OH), Sander Levin (D-MI), Jim Ramstad (R-MN), Xavier Becerra (D-CA), and Phil English (R-PA). The Senate companion bill was introduced by Senators Jeff Bingaman (D-NM) and Susan Collins (R-ME).

The CRTRA has broad bi-partisan support. It is supported by employer and employee advocacy groups alike because both business and employee organizations recognize that taxing non-economic make whole compensatory damages makes settlement more difficult and results in protracted litigation in employment disputes.

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