Employment Law

• DOI: http://doi.org/10.1002/nba.30159
• Date: 01 February 2016
• Published date: 01 February 2016

10

FEBRUARY 2016

NONPROFIT BUSINESS ADVISOR

© 2016 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Age discrimination

Lack of essential facts dooms former

employee’s case

In 1984, Raquel Del Valle-Santana began working

for the nonprot Servicios Legales de Puerto Rico Inc.

as a subdirector of one of its ofces. During her tenure,

she was transferred several times to be the director of

other SLPR ofces.

Upon her return in 2008 from a yearlong leave of

absence, Del Valle-Santana was made a subdirector at

the Carolina ofce because all other positions were oc-

cupied. She was then transferred to director of the ap-

peals unit a year later. In a letter, the executive director

wrote that the transfer was a “lateral move,” and that

her salary and benets would remain the same. During

the next four years, Del Valle-Santana remained there,

but she also performed some director duties for other

ofces, and did some work as an appellate attorney.

In 2011, funding cuts caused the 2012 budget to be

slashed. In response to that crisis, the board of direc-

tors ultimately decided to lay off several employees.

The ages of those employees ranged from 28 to 76. The

board also eliminated the appeals unit, which consisted

of Del Valle-Santana and an administrative secretary.

As a result, she was terminated in January 2012 at the

age of 63. No replacements were sought for the appeals

unit because it was completely eliminated.

Del Valle-Santana ultimately led a suit claiming

that she was the victim of age discrimination.

SLPR led a motion for summary judgment.

In response to the motion, Del Valle-Santana

led an afdavit that identied several directors who

remained on the payroll, and that stated they were

younger and less experienced. However, the trial court

judge granted summary judgment in favor of SLPR.

On appeal, Del Valle-Santana argued that her trans-

fer to the appeals unit was a lateral move. Therefore,

she contended that her position was not unique, and

that younger employees in other SLPR ofces had

remained in the same type of director positions she

had held before being terminated. She asserted that

whether those director positions were different from

hers should be decided by a jury.

In response, SLPR argued that younger employees

were not retained in the same director positions be-

cause the appeals unit director position was unique,

and remained unoccupied after the appeals unit was

completely eliminated.

Assuming for the purpose of argument that Del

Valle-Santana’s position was no different from the

other director positions, the appellate court said she

was required to show that the other directors who

remained were signicantly younger. It explained that

a three-year age difference had previously been ruled

inconsequential in another case.

EMPLOYER WINS ➔ Since Del Valle-Santana

had never anywhere specied the actual ages of the

younger directors who were retained—and since she

had not provided any examples of animosity toward

older employees—the court afrmed the ruling of the

trial judge.

[Del Valle-Santana v. Servicios Legales de Puerto

Rico Inc. et al., U.S. Court of Appeals for the 1st Cir-

cuit, No. 14-2057, 10/20/2015].

Free speech

Public nature of speech kills terminated

employee’s suit

In 2007, Gina Holub began working as an internal

auditor for the School District of Adams County,

Colorado. Not long after, she identied millions in the

district’s budget that she claimed was improper because

it was for unsupported salary expenses.

Holub conveyed her ndings to District Superinten-

dent Chris Gdowski, who advised her to speak to CFO

Shelley Becker about her concerns. In several meetings,

Becker and others explained to Holub that Holub had

not considered other salary budget items—including

overtime pay and coaching stipends—which properly

accounted for the greater budgeted amount Holub had

reported.

Those meetings satised Gdowski that Holub’s con-

cerns were unfounded. But Holub did not accept those

explanations and went outside the chain of command

to speak to two board members about her concerns.

A few weeks later, Holub delivered a memorandum

to Gdowski in which she asserted that the district had

acted illegally. Because she claimed state law violations,

the district hired an independent expert, who eventually

concluded that the concerns were unfounded.