Franklin County Court of Appeals Helps Pro Se Plaintiff with FMLA Claim.

Last week, the Franklin County Court of Appeals partially reversed summary judgment against an employee on his FMLA claim. Randolph v. Grange Mutual Casualty Co., 2009-Ohio-6782 (12/22/09). The pro se plaintiff had been summarily fired after failing to report to or timely call off work on the last day of an attendance probation. He claimed that he had blacked out during an episode of depression, which he claimed was aggravated when he learned he had been fired after he finally woke up and started to drive to his doctor and call his supervisor. In his lawsuit, he claimed that the employer interfered with his right to take FMLA leave. The trial court found that he failed to notify the employer of his need for FMLA leave as soon as practicable and his absence was not encompassed by his earlier FMLA request for intermittent leave for “treatment.” However, the appellate court found that the employee’s depressive episode could arguably constitute a serious medical condition which would support new, unforeseeable FMLA leave and that a jury could conclude that he had notified the employer in sufficient time.

According to the Court’s opinion, the employer’s policy:

requires an employee to report any absence and the reason for it within a half-hour of the employee's scheduled start time and states that failure to report an absence may result in disciplinary action up to and including termination. Under the absenteeism policy, an employee with seven absences in a 12- month period is placed on "absence probation," during which the employee may have only one absence. More than one absence during the absence probation subjects an employee to termination.

The plaintiff had been placed on attendance probation on June 24 until December 5 for reasons unrelated to an FMLA leave he had taken the prior year. Nonetheless, the employer did not count against his probation his absences as excused by his physician for his depression or for an asthma attack which he admitted was not covered by FMLA.

On the last day of his probation, the plaintiff failed to report to or call off work within 30 minutes of the beginning of his shift. His supervisor claimed that she left him a voice mail near the end of the day terminating his employment for violating the terms of his probation. According to the plaintiff, he awoke from a blackout in the late afternoon, realized he needed immediate medical attention and when he began to call his supervisor while driving to the doctor, he checked his voice mail and learned he had already been fired. At this point, he claimed that he began to have a nervous breakdown and drove to his mother’s home instead of his physician. His mother then telephoned the supervisor that evening and attempted to explain the situation and how her son would probably be hospitalized. The plaintiff himself called his supervisor and human resources first thing in the morning and explained the same. Nonetheless, the employer refused to reconsider his termination.

While the Court agreed that the plaintiff’s FMLA rights had not been interfered with before December 5, it found a factual dispute as to whether he was entitled to new, unforeseeable FMLA leave beginning on December 5 even though he failed to call off work during his shift that day. The Court agreed that the plaintiff’s earlier FMLA certification only covered “treatment” and “recovery from treatment” and did not encompass the December 5 absence because he had not received any treatment that day. However, to the extent that his need for leave on December 5 was unforeseeable, the plaintiff was only required by both the earlier and current FMLA regulations to give notice of his need for leave “as soon as practicable.” This could be two days, or less, or more depending on the particular factual circumstances of the situation.

The employer argued that the plaintiff had admitted that the depressive episode began on November 30 and thus, plaintiff was on notice days earlier that he might need FMLA leave. However, the court found a reasonable jury could conclude that the plaintiff did not require time off work until he blacked out during the evening of December 4, and thus, he notified his employer as soon as practicable under the circumstances. In reaching this decision, the Court found it relevant that the employer summarily terminated the employee by voice mail and how this notice of his termination adversely affected his mental health, preventing him from calling his employer any earlier in the day under the circumstances.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court: Discovery Order Requiring Employer to Disclose Attorney’s Conversation with Employee Is Not Immediately Appealable.

‘Tis the season for discovery and evidentiary rulings involving employers. This week, a pretty unanimous United States Supreme Court affirmed the dismissal of an appeal filed by an employer after the district court ordered it to disclose information about a conversation between its litigation attorney and an employee who later brought a wrongful termination lawsuit claiming he was fired because of that conversation. Although the employer claimed that the conversation was protected by attorney-client privilege and it would be irreparable harmed by disclosing the information, the Court held that it could not appeal the ruling until suffered a sanction for disobeying the court’s order. Mohawk Industries, Inc. v. Carptenter, No. 08-678 (12/8/09).

According to the Court’s opinion, the employer was defending class action litigation which alleged that it was driving down the wages of its legal employees by employing undocumented immigrant workers (or illegal aliens). Unaware of this, the plaintiff emailed the employer’s human resources department that it was employing undocumented workers. Accordingly, he was asked to meet with the employer’s attorney who was defending the class action litigation. The plaintiff claims that he was unlawfully fired after he refused to recant his statement when pressured by the attorney. The district court ordered the employer to produce information about the plaintiff’s meeting with the attorney and the termination decision. Although the court agreed with the employer that the information was privileged, it found that the privileged had been implicitly waived through disclosures in the class action. In particular, when the class action plaintiffs sought information about the plaintiff’s termination, the employer claimed that he had been fired for recommending the hiring of undocumented workers and had been interviewed by the attorney to substantiate the investigation. By revealing the content of the communication and its relation to the plaintiff’s termination in the class action, the court found the employer waived attorney client privilege in the wrongful termination litigation as well. The district court stayed its order, but refused to certify the issue for immediate appeal. The Court of Appeals dismissed the appeal as well. On appeal, all of the Justices affirmed the dismissal, although Justice Thomas wrote his own concurring opinion.

On appeal, the employer conceded that the discovery order was not a final appealable order, but argued that jurisdiction existed nonetheless because it was an appealable collateral order.

The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.

The crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. We routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system.

The Court concluded that the employer could protect its privileged communications in a number of ways:

First, a party may ask the district court to certify, and the court of appeals to accept, a ninterlocutory appeal pursuant to 28 U. S. C. §1292(b). The preconditions for §1292(b) review—“a controlling question of law,” the prompt resolution of which “may materially advance the ultimate termination of the litigation”—are most likely to be satisfied when a privilege ruling involves a new legal question or is of special consequence, and district courts should not hesitate to certify an interlocutory appeal in such cases. Second, in extraordinary circumstances—i.e., when a disclosure order “amount[s] to a judicial usurpation of power or a clear abuse of discretion,” or otherwise works a manifest injustice—a party may petition the court of appeals for a writ of mandamus. . . [Third, a]nother long-recognized option is for a party to defy a disclosure order and incur court-imposed sanctions. District courts have a range of sanctions from which to choose, including “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action,” “prohibiting the disobedient party from supporting or opposing designated claims or defenses,” or “striking pleadings in whole or in part.” Fed. Rule Civ. Proc. 37(b)(2)(i)–(iii). Such sanctions allow a party to obtain post judgment review without having to reveal its privileged information. [Finally], when the circumstances warrant it, a district court may hold a noncomplying party in contempt. The party can then appeal directly from that ruling, at least when the contempt citation can be characterized as a criminal punishment.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Court of Appeals Gets Tough with Unemployment Claimants

The Franklin County Court of Appeals issued two decisions yesterday denying unemployment compensation. In the first case, the employee was fired after not showing up for an investigatory interview that had been scheduled less than 24 hours earlier and even though he had been told by a Human Resources employee that she knew nothing about any such interview and there was a question whether the conduct underlying the investigation would have justified his termination. Williams v. Ohio Dept. of Jobs & Family Servs., 2009-Ohio-6328. In the second, an employee was fired for tardiness even though she admittedly only received one prior warning that her employer was dissatisfied with her timeliness and none about her general work performance. White v. DKS Group Inc., Proteam Staffing, 2009-Ohio-6329.

In Williams, the employee managed a group home for youths. After serving a two-week suspension for work issues, he was suspended again pending an investigation into additional allegations about his failure to take corrective action against a subordinate (which ultimately may have proved to be unfounded). He then filed a grievance against his two superiors and was placed on paid administrative leave pending an investigation of his grievance. Although the employer’s policy provided for resolving such grievances for two weeks, he heard nothing further from the employer for six weeks. The employer had attempted to contact him by mail, but the letters were returned by the Post Office. The employer also claimed to have left several voice mail messages, but the employee denied that. At that point, he received a telephone call that he was to meet with the employer’s attorney the following day, but was given no further details – such as a telephone number or location. He then called Human Resources, where an employee told him that no decision had been rendered on his grievance and she knew nothing about any meeting with the attorney. Therefore, he failed to attend the scheduled interview. Accordingly, the employer then terminated him for abandoning his job and he received notice the following month.

His unemployment compensation application was denied by the ALJ, the UCBR and the common pleas court. A divided Court of Appeals affirmed.

First, it was concluded that the employee failed to make reasonable efforts to maintain contact with his employer and ascertain the status of his grievance. He argued that he had been informed in writing and verbally to have no contact with his employer while on administrative leave, but the employer explained that this meant only his peers and subordinates – not HR or management. The Court found the employee’s testimony to be confusing on this point because he denied receiving the written instruction to not contact the employer and never claimed that he had been told not to contact HR. In fact, he contacted HR after receiving the telephone call and again three weeks later (when he learned he had been fired).

Second, it was concluded that the employee unreasonably failed to appear at the interview scheduled with the attorney. For reasons that were not explained in any detail, the Court concluded that it was unreasonable for the employee to rely on what he was told by HR and that, instead, he should have requested her to investigate further or to have requested more information – such as the attorney’s telephone number and email address so that he could independently confirm her information. It also found that if he found the short notice to be unreasonable, he should have requested the interview to be rescheduled instead of ignoring it altogether.

Third, the Court was unconcerned with the employee’s argument that the employer violated its own policy by not resolving his grievance within two weeks as called for in its policy because, among other things, the employee failed to introduce a copy of the policy into evidence. However, the dissent noted that the employee attempted to introduce the policy into the record, but the ALJ refused to accept it on the mistaken belief that it had been earlier admitted. The dissent also had difficulty affirming the denial of unemployment compensation to an employee who was terminated while on administrative leave pending a tardy resolution of his own grievance when there were no other grounds to support the termination and he had relied on incorrect information given to him by the employer’s HR employee and a direction to not contact any employee at the employer.

In White, the employee worked for a temporary staffing company, which claimed that she had been removed from 50% of her prior assignments for complaints about her poor work performance and from her last assignment because of tardiness. The employer “testified that [its] policy provided that, if an employee was tardy three or more times in a 30-day period, then discipline, including termination, could result. Upon learning from [the client] that [the employee] had attendance issues, and after reviewing [the employee’s client] timesheets, [the employer] concluded that [the employee] had violated the [company’s] attendance policy.”

In turn, the employee testified that no one had ever mentioned that her performance had been in any way unsatisfactory and that her temporary assignments had just ended as scheduled. However, the company did not produce the purchase orders she had subpoenaed to support her argument and her attorney failed to object to this to preserve the error. Instead, she testified that her last assignment had been scheduled to last another three months before she was fired. She also denied that her timeliness violated the client’s flex-time policy and that after it was first mentioned to her, she stopped using flex time. However, when confronted with copies of her time sheets, she admitted that she arrived after her scheduled start time on several occasions (because of, among other things, transportation issues) and sometimes failed to work 40 hours in a week.

The hearing officer reversed her grant of unemployment benefits, which was not reviewed by the Unemployment Compensation Board of Review and was affirmed by the common pleas court. On appeal, the Court found no error because of the evidence that the employee had been late on numerous occasions and sometimes failed to work 40 hours/week in violation of the policies of both her employer and its client. Further, it found insufficient evidence that missing evidence would have changed the result.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Appeals Court Affirms Discovery Sanction Against Employer to Produce Copies of Computer Hard Drives.

Discovery sanctions are in the news a lot these days. There were two notable discovery abuse decisions last week. In both, the appellate court affirmed the trial court’s sanction against the uncooperative defendants who failed to comply with their obligations to produce information requested by plaintiffs before trial. First, the Washington Supreme Court affirmed entry of an $8M default judgment plus attorney fees against Hyundai Motor Company for its “willful efforts to frustrate and undermine truthful pretrial discovery.”
The parties continued to argue about their discovery obligations, including the location and timing of depositions and whether the defendants had produced all responsive documents which had been requested. Although defendants had asserted that it has responded fully to the discovery requests, it did not respond to the Plaintiff’s second motion to compel discovery and did not seek a protective order to protect confidential information encompassed by the Plaintiff’s discovery requests. Not surprisingly, the trial court granted the second motion to compel, suggested that defendants submit a protective order for consideration and directed defendants to produce the requested documents or face sanctions. However, defendants again insisted that they had already fully complied with the discovery requests and produced no further documents. Therefore, in November 2007, Plaintiff moved for a default judgment as a discovery sanction. In response, the defendants, “[t]o the extent that they might have withheld any documents, defendants blamed their failure to produce on Plaintiff’s refusal to explain what documents were missing from defendants' response.”

The trial court referred the discovery dispute to a magistrate. Defendants submitted an affidavit in support of their position, but then the information was contradicted by the testimony of their witness, who admitted that the defendants had not produced relevant documents in discovery because of, among other things, confidentiality concerns and the breadth of the discovery requests. Unfortunately, the defendants had never sought a protective order to protect the confidentiality of the information or submitted any objections based on the overbreadth of the discovery requests. Thus, the magistrate found the defendant’s failure to comply with the prior court orders to be willful.

Nonetheless, the magistrate did not order a default judgment for the defendants’ willful disregard of court orders. Instead, he ordered the defendants to produce the documents within 20 days, to pay the Plaintiff’s discovery expenses (i.e., attorney fees) and to “provide, at their own cost: (1) a forensic copy of the computer hard drives of Martin, Citynet's Chief Financial Officer ("CFO"); and Citynet's Chief Operating Officer ("COO"); and (2) any schedule, calendar, .pst file, Outlook application, or PDP application utilized by Martin.” The parties then agreed upon a mutually satisfactory protective order. The trial court then affirmed most of the magistrate’s recommendations over the defendant’s objections:

In sum, the trial court approved and adopted the magistrate's decision with a few relevant caveats. First, the trial court allowed defendants to redact from the forensic copies of the hard drives any privileged material. Second, the trial court permitted defendants to designate personal information contained on the forensic copies for "attorneys' eyes only." Finally, the trial court required Bennett to execute an affidavit confirming that, to the best of his knowledge, he is engaged in no professional activity that is in any way competitive to the business activity of the Citynet entities, that he does not encounter any of the Citynet entities competively in the course of his professional life, and that he otherwise does not engage in competition with any of the Citynet entities. Apparently, the trial court ordered such an affidavit to ensure that Bennett would not use the confidential business information contained in the forensic copies to achieve a competitive advantage over defendants.

The defendants immediately appealed and the Court of Appeals found the discovery order to be a final and appealable order. “[A]ppellate courts have reasoned that as long as an appellant presents a "colorable claim" that the documents subject to a discovery order are privileged and/or confidential, the proceeding that resulted in that order qualifies as a "provisional remedy." Moreover, “[b]ecause information is no longer confidential after dissemination, defendants would not have an effective remedy if forced to delay appeal until after final judgment.”

The Court affirmed the trial court’s sanction in part because of the defendants’ deliberate flaunting of its discovery obligations and of the court’s discovery orders.

A forensic image, or "mirror image," of a hard drive " 'replicates bit for bit, sector for sector, all allocated and unallocated space, including slack space, on a computer hard drive.' " . . . Generally, courts are reluctant to compel forensic imaging, largely due to the risk that the imaging will improperly expose privileged and confidential material contained on the hard drive. Because allowing direct access to a responding party's electronic information system raises issues of privacy and confidentiality, courts must guard against undue intrusiveness. . . .

In the case at bar, [Plaintiff] has demonstrated that defendants repeatedly represented that they had disclosed all responsive documents, when, in fact, they had not. As the magistrate found, such obfuscation displays a willful disregard of the discovery rules and the trial court's orders. Moreover, defendants' last-minute discovery of certain responsive documents indicates that when not outright defying the trial court's orders, defendants adopted a lackadaisical and dilatory approach to providing discovery. Given this background of noncompliance, we cannot conclude that the trial court abused its discretion in ordering defendants to produce forensic copies of the hard drives of Citynet's CEO, CFO, and COO.

In arguing to the contrary, defendants first contend that trial court's order impermissibly allows [Plaintiff] to discover vast amounts of irrelevant information which cannot possibly relate to [Plaintiff’s] age discrimination, retaliation, and breach of contract claims. While defendants may be correct, they fail to appreciate that their own intransigence in the course of discovery justifies the scope of the trial court's order.

Nonetheless, even though the trial court permitted the defendants to redact privileged matters and to designation confidential information “for attorneys’ eyes only,” the Court was still sympathetic about producing confidential and trade secret information directly to Plaintiff, who now worked for one of defendants’ direct competitors. In such cases, sometimes

courts adopt a protocol whereby an independent computer expert, subject to a confidentiality order, creates a forensic image of the computer system. The expert then retrieves any responsive files (including deleted files) from the forensic image, normally using search terms submitted by the plaintiff. The defendant's counsel reviews the responsive files for privilege, creates a privilege log, and turns over the non-privileged files and privilege log to the plaintiff. . . . .

[Plaintiff] deserves a remedy for the prejudice caused by defendants' misconduct, but that remedy should not require defendants to sacrifice highly-sensitive, confidential information that has no bearing on [Plaintiff’s] claims. Additionally, private information of the computers' users—such as personal financial information and communications with friends and family—should not be subject to disclosure. Therefore, we conclude that the trial court abused its discretion in devising the procedure for the forensic imaging. We urge the trial court to adopt a protocol similar to the one described above. We believe that such a protocol would allow [Plaintiff] sufficient access to the computer systems to recover useful information, while also providing defendants with an opportunity to identify and protect privileged and confidential matter.

The discovery sanction and forensic imaging was otherwise affirmed.

Insomniacs can read the full court opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-6195.pdf

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court: Death and Taxes May Be Certain, but the Timing Alone is Too Indefinite to Form a Binding Promise.

Last month, the Franklin County Court of Appeals affirmed summary judgment against a former corporate officer who had been promised employment for the life by the majority shareholder. Steele v. Mara Enterprises, Inc., No. 2009-Ohio-5716. In that case, the plaintiff worked his way up to become president of the corporation. When the founder died, his widow inherited his majority interest and eventually transferred her ownership to a trust. She promised him that he would keep his job as long as she was alive and in reliance on this promise, he turned down two offers of employment. Nonetheless, the Court found her promise to be too indefinite to support a promissory estoppel claim.

According to the Court’s opinion, after many years of employment, membership on the Board of Directors and the purchase of one share in the corporation, the plaintiff was fired after the Board all voted to resign and the new Board was elected. The Court found the verbal promises of employment for the lifetime of the majority shareholder to be too indefinite to be legally binding:

Death, although inevitable, is unpredictable. A future event that, by its very nature, could occur in ten minutes or ten years is too indefinite to constitute a "specific term" for purposes of promissory estoppel. Such statements are, at best, discussions of "possible future career developments and opportunities." . . . . Similarly, here, Laverne Hill's statements were tied to her own death and, as a result, suffered the same deficiency as those "promises" made in Callander: they fail to unambiguously promise continued employment for a specific period of time. Indeed, the statements lacked specificity in other aspects. The statements never included a discussion of job title, job responsibilities, compensation, or contingencies in the event the business closed or Laverne Hill decided to part with her ownership interest before her death. The complete lack of details suggests Laverne Hill's statements were anything but clear and unambiguous promises of continued employment. . . . .

In any event, even if the promise were sufficiently unambiguous, the Court questioned whether a majority shareholder could bind the corporation since she was not an officer, did not make these promises in a meeting of the Board members, was never ratified by the Board and never reduced to writing. On the contrary, the Employee Handbook (created by the plaintiff) provided that all employees were employed at will unless given a written contract.

Finally, the Court rejected the breach of fiduciary duty claim by a minority shareholder because the duty is owed by the majority shareholder (who was not named as a defendant) and not the corporation (who was the only named defendant).

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5716.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.