When Nice Guys Do Not Always Finish Last

On October 5, 2007, the Lucas County Court of Appeals affirmed the summary judgment dismissal of a race discrimination case on the grounds that the plaintiff could not show that he was qualified for his position or had been treated more harshly than his similarly situated white co-workers after he had been granted repeated instances of leniency which had not been extended to his co-workers. Isbell v. Johns Manville, Inc., 2007-Ohio-5355. For instance, even though he was found sleeping on duty on numerous occasions and refusing to wear protective gear, he was not formally disciplined because his brother had been very ill and eventually died. Other employees, however, were formally disciplined each time they were caught. The plaintiff had already grieved and lost the union arbitration to challenge his termination before pursuing his race discrimination claims in court.

This decision is also interesting for its discussion of the employer’s new disciplinary system:

“By 2002, Johns Manville had adopted, as an alternative -- and purportedly less punitive -- approach to resolving performance problems, a system known as "performance counseling".1 Performance counseling consists of three phases: Phase I involves clarification of the employer's expectations; Phase II involves obtaining the employee's commitment to change; and Phase III involves a decision by the employee as to whether or not he wishes to continue employment with the company.”

The employer explained how it had exhausted the disciplinary process with the plaintiff before it terminated him for repeatedly failing to meet agreed-upon expectations about staying awake at work, etc. At one point, the plaintiff had provided written assurances that "From this day forward I will wear the protective gear that is required” and, without admitted to sleeping on duty, that "I realize that whether I was sleeping or not, this is not what Johns Manville pays me to do." Unfortunately for him, however, he failed to comply with these assurarnces.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/6/2007/2007-ohio-5355.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Sixth Circuit Finds FLSA Overtime Claim of Gas Station Manager to be Empty

Earlier today, the Sixth Circuit Court of Appeals in Cincinnati affirmed the dismissal on summary judgment of a FLSA overtime claim brought by a former store manager for Speedway SuperAmerica on the grounds that she was an exempt managerial employee. Thomas v. Speedway SuperAmerica LLC, No. 06-3768 (10/30/07). The manager (terminated in 2003 before the new FLSA exempt regulations were promulgated in August 2004) testified that she generally worked more than 50 hours each week and met with her own supervisor only once every 4-14 days.

She also testified that she “spent approximately sixty percent of her work time performing non-managerial tasks, such as stocking merchandise, sweeping floors, cleaning bathrooms, operating the register, and performing routine clerical duties. Even though [she] devoted a majority of her time to nonmanagerial activities, she testified that her “primary duty was to manage [her] store,” which required her to perform many management functions. She supervised, interviewed, hired, trained, and disciplined employees; she prepared weekly work schedule for her employees; she resolved employee complaints; she monitored her employees’ performance with formal evaluations; she recommended salary or merit increases for her employees (most of which were accepted by her district manager); she frequently recommended employee terminations to her district manager; and she even terminated some employees without prior approval from her district manager (although she would later notify her district manager of these unilateral termination decisions).

Because the plaintiff earned a base salary of $522 per week, the court applied the “short test” under the old FLSA regulations to determine whether she was a bona fide executive employee. “An employee qualifies for the executive exemption under the short test if: (1) her “primary duty consists of the management of the enterprise” and (2) her primary duty “includes the customary and regular direction of the work of two or more other employees.”

The central issue in the case was whether the plaintiff “had management as her primary duty. Numerous courts have addressed this issue in factually similar cases, and all have held that the plaintiff’s primary duty consisted of management.” In reviewing prior cases, the court stressed that it could not simply “rely upon the plaintiff’s or the employer’s description of the plaintiff’s position or authority; instead we must “look at the plaintiff’s actual duties” to determine whether she qualifies for the executive exemption.” “’Primary duty’ does not mean the most time-consuming duty; it instead connotes the “principal” or ‘chief’ — meaning the most important — duty performed by the employee. . . . Nevertheless, “[t]he amount of time spent in performance of . . . managerial duties is a useful guide in determining whether management is the primary duty of an employee.”

“[I]n situations where the employee does not spend over 50 percent of [her] time in managerial duties, [she] might nevertheless have management as [her] primary duty if the other pertinent [factors] support such a conclusion.” 29 C.F.R. § 541.103 (2003). These factors include: (1) “the relative importance of the managerial duties as compared with other types of duties”; (2) “the frequency with which the employee exercises discretionary powers”; (3) “[the employee’s] relative freedom from supervision”; and (4) “the relationship between [the employee’s] salary and the wages paid other employees for the kind of nonexempt work performed by [her].”

Under the first factor, the court “compare[d] the importance of the plaintiff’s managerial duties with the importance of her non-managerial duties, keeping in mind the end goal of achieving the overall success of the company.” In analyzing that first factor, the court compared the plaintiff’s non-managerial duties (which included stocking merchandise, sweeping floors, and cleaning bathrooms) with her managerial duties (which include hiring employees, training employees, and assigning the weekly work schedule) . The court observed that if the plaintiff failed to perform her nonmanagerial duties, the station would still function, albeit much less effectively. If, on the other hand, she failed to perform her managerial duties, the station would not function at all because no one else would perform these essential tasks.

The second factor examines “the frequency with which the employee exercises discretionary powers” or “the prevalence or regularity of the plaintiff’s discretionary decisions.” The court noted that an “employee’s exercise of discretion over matters of importance strengthens the employer’s showing under the second factor.” Even though her district manager was available by phone and frequently visited, he was not present enough to remove the plaintiff’s regular discretion in managing the station.

“The third factor considers the employee’s ‘relative freedom from supervision.’ [The plaintiff] was the most senior employee at her station; no other on-site employee was her equal. Thus, on a day-today basis, she generally operated without a supervisor looking over her shoulder, monitoring her every move.” “A ‘local store manager’s job is [no] less managerial for FLSA purposes simply because . . . she has an active [district manager].’” Only where the district manager was present virtually every day for several hours have courts found this factor to weigh in the employee’s favor.

The court compared the plaintiff’s salary to her subordinate employee’s wage rate in the fourth factor. Even considering the number of hours she worked, her regular salary equated to approximately 30% more than her subordinate employees without factoring in her eligibility for a monthly bonus or how much overtime the subordinates earned. Even if the subordinate’s overtime were considered, the plaintiff earned more than $7,000 more than the next highest paid employee at the store in the prior seven months. The court found that pay difference to be significant.

Finally, the court dismissed the plaintiff's claim for overtime wages under Ohio law because Ohio's overtime wage statute explicitly incorporates the FLSA exemptions. Ohio Rev. Code § 4111.03(A) (“An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee’s wage rate for hours worked in excess of forty hours in one workweek, in the manner and methods provided in and subject to the exemptions of . . . the ‘Fair Labor Standards Act of 1938’”).

Insomniacs may read the full opinion at http://caselaw.lp.findlaw.com/data2/circs/6th/063768p.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

EEOC Legal Victories Send Message to Unwary Employers

EEOC Wins Jury Verdict in Religious Discrimination Case Where Employees Were Denied a Requested Day Off to Attend a Church Convention.

On October 23, 2007, the EEOC announced a favorable jury verdict of $756,000 in a religious discrimination lawsuit brought in Arkansas federal court against AT&T Inc. on behalf of two male customer service technicians who were suspended and fired for attending a Jehovah’s Witnesses Convention. “The jury . . . awarded the two former employees, Jose Gonzalez and Glenn Owen (brothers-in-law), $296,000 in back pay and $460,000 in compensatory damages under Title VII of the 1964 Civil Rights Act. During the four-day trial, the jury heard evidence that both men had submitted written requests to their manager in January 2005 for one day of leave to attend a religious observance that was scheduled for Friday, July 15, to Sunday, July 17, 2005. Both men testified that they had sincerely held religious beliefs that required them to attend the convention each year. Both men had attended the convention every year throughout their employment with AT&T -- Gonzalez worked at the company for more than eight years and Owen was employed there for nearly six years.”

Title VII requires -- at 42 U.S.C. § 2000e(j) -- that an employer, short of "undue hardship," make "reasonable accommodations" to the religious needs of its employees. In particular, for purposes of Title VII’s prohibition against discrimination on the basis of religion: “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

Title VII’s “undue hardship” test, however, has been given a different meaning by the Supreme Court than the “undue hardship” test contained in the ADA. In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that an employer attempted to reasonably accommodate the religious objections of an employee to working on his Sabbath by permitting him to find a replacement and switch shifts. However, the Court held that the employer was not required to violate the seniority provisions of the collective bargaining agreement by giving the religious employee the preference of shift assignments over more senior employees because doing so would constitute an undue hardship.

“We agree that neither a collective bargaining contract nor a seniority system may be employed to violate the statute, but we do not believe that the duty to accommodate requires TWA to take steps inconsistent with the otherwise valid agreement. Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. . . . TWA would have had to adopt the latter in order to assure Hardison and others like him of getting the days off necessary for strict observance of their religion, but it could have done so only at the expense of others who had strong, but perhaps nonreligious, reasons for not working on weekends. There were no volunteers to relieve Hardison on Saturdays, and to give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath.”

The Supreme Court also rejected the argument that the religious employee could be given a four-day instead of a five-day shift because that would have left the employer short-handed one day each week: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship. Like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion.”

The full press release is available at http://www.eeoc.gov/press/10-23-07.html.

EEOC Settles Racial Harassment Suit Involving Hangman’s Nooses

On October 25, 2007, the EEOC announced that it had settled a discrimination lawsuit for $290,000 and obtained “significant injunctive relief against Helmerich & Payne International Drilling Co. (H & P) on behalf of African American men who were subjected to a racially hostile work environment on an oil rig. H & P is an energy oriented company engaged in contract drilling primarily in the United States, South America, and Africa. The racial harassment in the case including hangman’s nooses displayed on Rig 108, derogatory racial language, and race-based name calling, all of which was directed at black employees. In addition to the nearly $300,000 in compensatory damages to be apportioned among the seven class members, the two-year consent decree (filed in Birmingham, Alabama) settling the case (EEOC v. Helmerich & Payne International Drilling Co., Case No. 3:05-CV-691) contains the following injunctive relief:

• Enjoins H & P from engaging in racial harassment or retaliation;


• Requires that H & P conduct anti-discrimination training and post a notice about the settlement;


• Requires that H& P redistribute to the workforce its policies prohibiting racial harassment; and


• Requires reporting certain complaints of harassment or retaliation to the EEOC for monitoring.

A full copy of the press release can be reviewed at http://www.eeoc.gov/press/10-25-07.html.

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Pregnant Expectations in Ohio: Expansions and Contractions

Ohio Civil Rights Commission Expands Maternity Leave Benefits Beyond Those Required by Federal Law.

On Thursday, October 25, 2007, the Ohio Civil Rights Commission (OCRC) approved an amendment to Ohio Administrative Code § 4112-5-05 governing sex discrimination which will affect all employers (of four or more employees) who interview, hire or employ pregnant employees. The regulatory amendment must still be approved by the Joint Commission on Agency Rule Review and will then take affect in 30 days. If approved, the amendment will have a significant impact on employment policies governing maternity leave and other benefits given to employees:

• Pregnant employees are entitled to light duty positions, other modified work programs and receipt of fringe benefits to the same extent as non-pregnant employees who are similar in their ability to work regardless of any distinctions or qualifications currently made in the employer’s policies regarding length of service, nature of the medical condition or whether the medical conditions is related to an on-the-job injury. In other words, if certain benefits and light duty job assignments are only available to employees who were injured on the job (so that they could not received income replacement from a workers’ compensation injury) or only to employees who have been employed for at least, for example, six months, those same benefits must be made available to an “employee affected by pregnancy, childbirth or related medical condition” regardless of whether the pregnant employee was injured on the job or had only been employed one day. On the other hand, if the employer does not offer light duty or modified work assignments to any employees, pregnant employees will not be entitled to them either.


• Employment policies which provide for “less than twelve weeks of pregnancy, childbirth or maternity leave . . . shall be presumed to have a disparate impact on women and constitute unlawful sex discrimination unless justified by business necessity (when “an adverse employment action is taken against an employee who is temporarily limited, in part or in whole, in her ability to work due to pregnancy, childbirth or a related medical condition”).


• “No employer shall be permitted to place an employee affected by pregnancy, childbirth or a related medical condition on mandatory leave, or otherwise limit or alter her job duties, in the absence of an objective, verifiable safety justification and only when the pregnancy or related medical condition interferes with her ability to safely perform her position.”

The OCRC current regulation requires only a leave of absence for a “reasonable period of time” and subjected the leave to the same minimum length of service requirements as required of non-pregnant employees who were eligible for medical leaves of absence. Even if employers did not have a medical leave of absence policy, they are still required under the current regulations to provide a reasonable period of time for maternity leave.

Under federal non-discrimination law, employers are only required to treat pregnant employees the same as other employees who are similarly limited in their ability to work. Therefore, if the employer did not offer any medical or sick leave, pregnant employees were not entitled to any medical leave.

Under the FMLA, pregnant employees are entitled to twelve weeks of medical leave, but only to the extent that they qualify, have not otherwise exhausted their twelve-week entitlement in that calendar year, and, coodinate parental leave with a spouse who works for the same employer. The new OCRC regulation is silent about whether an employer must provide the twelve weeks of pregnancy leave without regard to the non-maternity leaves provided under the FMLA or how many weeks of maternity leave the employee has already taken in any twelve month period.

To view the redline version of the amendment, please click here.

Unemployment Compensation Denied to Able-Bodied Pregnant Employee Forced to Take Maternity Leave by CBA.

On October 11, 2007, the Cuyahoga County Court of Appeals affirmed the denial of unemployment compensation to a pregnant airline attendant who was forcibly laid off following her 27th week of pregnancy (despite her doctor’s certification that she was able to work) pursuant to the terms of a collective bargaining agreement (which the employer argued was required by FAA regulations). Continental Airlines, Inc. v. Ohio Dept. of Job & Family Servs., 2007-Ohio-5434. The court held that the CBA constituted a common law exception to the prohibition in Ohio Revised Code § 4141.29 against waivers of unemployment compensation. “The Unemployment Compensation Act is not intended for individuals who voluntarily agree to a period of partial unemployment, particularly when the individuals continue to accrue seniority, remain covered under the employer's insurance program, remain eligible for sick pay, and are able to return to their former job as soon as they are able." The court also noted that “the terms of the collective bargaining agreement, mutually negotiated at arms-length by [the claimant’s] union and Continental compel our conclusion that [the claimant] was voluntarily unemployed.”

The court followed a pre-Pregnancy Discrimination Act common pleas case from 1963, Leach v. Columbus Plastics Products, Inc., where the Franklin County Court of Common Pleas held that: "An employee on leave of absence for pregnancy, during a period that such leave is mandatory under rules established pursuant to a collective bargaining agreement, is not entitled to unemployment compensation benefits since she is not `available for suitable work' as required by division (A)(4) of Section 4141.29, Revised Code."

“The overarching analysis of Ohio unemployment compensation law as it relates to this case must determine whether [the claimant] is the type of temporarily unemployed worker to whom the law contemplates providing unemployment benefits. Our analysis concludes that she is not. As a union represented worker, [the claimant] is a party to the collective bargaining agreement. As such, she agreed to stop flying after her 27th week of pregnancy in exchange for the accrual of seniority while on maternity leave, continued coverage under Continental's health insurance plan for the duration of the leave, the option of using sick time during the maternity leave, and full reinstatement at the end of maternity leave. In addition, the collective bargaining agreement gave [the claimant] a one-time option to extend maternity leave for up to 12 months. These contract terms were reached as a result of arms-length negotiations between Continental and [the claimant’s] union, so [the claimant] validly waived the right to unemployment compensation benefits.”

While the court questioned the legality and discriminatory nature of the mandatory maternity leave provision in the CBA, it refused to alter its analysis of the unemployment statute. Its analysis is consistent with a 1987 Supreme Court decision upholding the denial of unemployment compensation to a Missouri woman who was refused reinstatement to her job following a maternity leave under a similar unemployment statute which provided that unemployment compensation is not available to an employee who "has left his work voluntarily without good cause attributable to his work or to his employer." Wimberly v. Labor and Industrial Relations Commission of Missouri, 479 U.S. 511. While federal law at that time precluded the denial of unemployment compensation “solely” on the basis of pregnancy, this did not require preferential treatment for pregnancy when the state law provided that all persons who leave their jobs are disqualified from receiving benefits unless they leave for reasons directly attributable to the work or to the employer.

Insomiacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/8/2007/2007-ohio-5434.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Sixth Circuit: FMLA Does Not Cover Care For Adult Child With Temporary Impairment and Does Not Require Employers to Obtain Second Medical Opinion

On September 28, 2007, the federal Sixth Circuit Court of Appeals affirmed summary judgment in favor of an employer and dismissal of the FMLA claims of a former employee. Novak v. MetroHealth Medical Center, No. 06-3036 (6th Cir. 9/28/07). First, the Court noted that the employee could not prove that she suffered from a “serious health condition” covered by the FMLA because the medical certifications she had submitted to her employer were insufficient. Among other things, the physician who purportedly provided the incomplete certifications of the chronic back condition admitted that she had not seen or treated the plaintiff in over four months before the plaintiff sought FMLA leave. The employer gave the plaintiff a week to cure the deficiency, and she submitted three additional (but deficient) certification forms, but she never sought a certification from her actual treating physician. The court also held that the employer was not required to obtain a second medical opinion before rejecting the plaintiff’s deficient certification forms. While the FMLA permits employers to obtain second medical opinions, it does not require them to do so.

The Court also rejected the plaintiff’s argument that she was entitled to FMLA leave to care for her 18-year daughter while she suffered from temporary post-partum depression. First, the court noted that the plaintiff had failed to provide any medical certification that her daughter was even temporarily disabled from taking care of herself:

“The FMLA authorizes leave to care for a child 18 years of age or older only if the child is suffering from a serious health condition and “incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12)(B). Notably, [Plaintiff] did not provide any evidence or medical certification that [her daughter] was in fact unable to care for herself; rather, the certification and [her daughter’s] testimony all related to [her daughter’s] difficulty in caring for her newborn child (i.e., [Plaintiff’s] grandchild). But the FMLA does not entitle an employee to leave in order to care for a grandchild.”

Second, the Court found that the FMLA only permitted leave when the adult child was “disabled” as governed by the ADA. However, the evidence showed that the daughter’s post-partum depression was neither severe nor long term, as required by the ADA to qualify as a covered disability:

“We conclude, based on our evaluation of all the relevant factors, that [Plaintiff’s] daughter, . . . was not substantially limited in any major life activities — such as the activity of caring for oneself — and therefore was not disabled for purposes of the FMLA. First, [Plaintiff] has not presented sufficient evidence for a jury to conclude that [her daughter’s] impairment was severe. . . . Second, the undisputed facts clearly show that [her daughter’s] condition lasted only a week or two. . . . Such a short-term restriction on a major life activity generally does not constitute a disability. See Hein, 232 F.3d at 487. Third, [Plaintiff] has not produced any evidence indicating that [her daughter’s] postpartum depression inflicted any permanent or long-term impact on her health. In fact, the record evidence is to the contrary, demonstrating that [her daughter] recovered in a short period of time, and giving no indication that she endured any long-term adverse effects. Because [Plaintiff] has not established that her adult daughter suffered from a disability, the FMLA does not authorize [Plaintiff’s] leave to care for her.”

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney. Insomiacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/07a0398p-06.pdf.