Last month, the Franklin County Court of Appeals affirmed summary judgment in favor of an east-side dental practice in a declaratory judgment action involving its obligation to make retirement, or deferred compensation, payments under an employment agreement to its founder who retired after a serious illness and then opened up a competing dental practice after his recovery. Drs. Kristal & Forche, D.D.S., Inc. v. Erkis, 2009-Ohio-5671. The dispute centered on the meaning of “retirement,” which was not defined in the agreement. The Court implied the non-competition obligation from the fact that the Professional Services Agreement signed by the defendant dentist contained a resignation clause which permitted him to leave the practice for any reason upon 90 days notice, but, unlike the retirement clause, did not obligate his remaining partners to provide him with deferred income during his retirement. Therefore, the Court concluded that “retirement” meant from the profession, not just the dental practice, or the resignation clause would be rendered superfluous.
According to the Court’s opinion, the defendant dentist formed the practice, which was ultimately joined by two additional dentists. They formed a professional corporation and each signed professional services agreements. The agreements provided that each dentist could resign upon 90 days notice. The agreement also provided that the defendant dentist could retire at any time and at any age and be entitled to over $1.1M in deferred compensation paid out in monthly installments of $40,000. Retirement was not defined in the agreement. The only other clauses where a dentist was entitled under the agreement to deferred compensation was when the dentist died or became disabled, which also involved leaving the profession, rather than just the practice.
In early 2003, the defendant dentist became seriously ill, accepted disability payments under the agreement and retired in May 2003. The practice purchased back his shares and paid him $306,000 in retirement compensation through May 2005. He then made a remarkable recovery and opened his own competing practice in October 2004, which involved soliciting some of his former employees and clients. The practice then filed a declaratory judgment action in August 2005 concerning its obligation to continue making retirement payments to the defendant dentist on the grounds that the defendant dentist had breached his agreement by competing against it and, by soliciting clients and referral sources, had decreased its revenue to the point that it could no longer afford to fund his “retirement.”
The practice argued that “retirement” meant from the profession, not just the practice. As a result, by the defendant-dentist’s competition against them, he breached the agreement by returning to the profession and relieved them of their obligation to make retirement payments to him. Thus, under the practice’s interpretation, the agreement’s retirement clause imposed an implied non-compete obligation upon the defendant dentist. In turn, the dentist argued that “retirement” meant any and all retirements and did not require him to remain unemployment or to leave the profession permanently.
The Court agreed with the practice’s argument because (1) the voluntary and involuntary termination provisions permitted the dentist to leave the practice without requiring the practice to provide deferred compensation and (2) deferred compensation was only required if the dentist left because of death, disability or retirement. Therefore, the Court could infer the parties’ intent from the structure of the agreement to define “retirement” as meaning from the profession, rather than just the practice.
Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5671.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.
Thursday, November 19, 2009
Wednesday, November 18, 2009
EEOC Revises Its “Equal Employment Opportunity Is the Law” Poster To Reflect November 21 Effective Date of Genetic Information Nondiscrimination Act
The EEOC has posted on its website the new EEO Is the Law poster which reflects the November 21 effective date of GINA. Every employer with more than 15 employees and most federal contractors are required to post a notice about the rights of applicants and employees under Title VII, the ADA, the ADEA, the GINA, the Equal Pay Act, Executive Order 11246, the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act, etc. Employers may post a supplemental poster next to their existing poster of employees news rights under GINA and the ADAA or may post an all new poster which incorporates the new rights under GINA. Employers may print out these posters in English and Spanish directly from the EEOC website or may order larger (and more readable) version to be mailed.
GINA was enacted in 2008 and has broader application to employers and healthcare providers than its name implies. Title I applies to group health plans sponsored by private employers, unions, and state and local government employers, issuers in the group and individuals health insurance markets, etc.
GINA was enacted in 2008 and has broader application to employers and healthcare providers than its name implies. Title I applies to group health plans sponsored by private employers, unions, and state and local government employers, issuers in the group and individuals health insurance markets, etc.
Thursday, November 12, 2009
Sixth Circuit: “Reasonable Time for Negotiations” or “It’s Déjà Vu All Over Again.”
This week, the Sixth Circuit affirmed an August 2008 bargaining order by the NLRB involving the voluntary recognition of a union by a small plumbing company in May 2000, two decertification petitions submitted by the employees in March 2002 and May 2003 and two sets of negotiations, the last of which ended in May 2003 and none of which resulted in an initial bargaining agreement. Town & Country Plumbing & Heating, Inc. v. National Labor Relations Board, Nos. 08-2242/2384 (6th Cir. 11/9/09). By the time the employer decided to fight in June 2003, the dispute sat at the NLRB for five years when it was finally resolved against the employer by the NLRB on stipulated facts. In short, the NLRB found that the employer had failed to recognize the union for the required six month period in compliance with the parties’ settlement agreement because the NLRB does not recognize the “modern” business practice of correspondence or telephones and, instead required the parties to meet face-to-face before the clock started ticking on the six-month period.
The union began an organizational campaign in early 2000, which culminated in unfair labor practices being filed against the employer. When the General Counsel issued a complaint, the employer instead decided to informally settle the complaint by voluntarily recognizing the union in May 2000 and providing back pay to twelve employees. The employer and union then negotiated in good faith for almost two years without ever reaching an initial bargaining agreement. In March 2002, the employees filed a decertification petition and the employer withdrew recognition from union on March 14, 2002. The union again filed ULP charges, the General Counsel again issued a complaint and the employer again agreed to settle the complaint by voluntarily recognizing the union and negotiating in good faith in October 2002.
Unfortunately for the employer, this settlement agreement contained a clause that it did not become effective until approved by the NLRB – which did not happen until February 3, 2003 and it was not judicially approved by a Court until September 2003. Notwithstanding this, the employer immediately attempted to negotiate with the union, submitted proposals and responded to information requests by the union. The parties agreed in writing to a limited wage increase for five employees on October 30, 2002. However, for a variety of reasons, the union refused to meet face-to-face with the employer until January 16, 2003. The parties then met two more times, but exchanged information and proposals several times over the next five months and came close to reaching an initial agreement.
As in 2002, the employee again submitted a decertification petition to the employer and, as in 2002, the employer withdrew recognition from the Union on June 27, 2003 – almost eight months after they began negotiating in writing in October 2002, but only five months after the Board approved the formal settlement agreement on February 3, 2003 and 5.5 months after they met face-to-face for their first bargaining meeting on January 16, 2003. Again, the union filed a ULP and, again, the General Counsel issued a complaint. However, this time, the employer decided to fight. The parties waived a hearing before an ALJ and instead issued stipulated facts directly to the NLRB, which did not rule on the dispute until August 2008 – more than eight years after the employer first recognized the union for the first time.
The NLRB decided that it was in the interest of industrial peace to require the employer to negotiate with the union for at least six months before honoring any decertification petition submitted by the employees. The NLRB was not influenced in any way by the 22 months when the employer had already bargained with the union without reaching a bargaining agreement in 2000-2002. The NLRB’s prior decision in Lee Lumber requires a presumptive six-month bargaining period following an adjudicated unfair labor practice during which a union has an irrebuttable presumption of majority status after re-recognition. In this case, the employer argued that the six-month period began in October 2002 when the parties exchanged and agreed upon proposals, information, and limited wage increases, but the union argued that the six month period did not begin until February 3 when the settlement agreement was approved by the Board. The NLRB ultimately split the baby and decided that the six months did not begin until the parties first met face-to-face on January 16, 2003. Accordingly, six months had not passed when the employer withdrew recognition on June 27, 2003 after receiving its second decertification petition in two years.
The Court affirmed the Board’s decision as reasonable and not unduly prejudicial of the employees’ rights to be free of an ineffective union since the employer was only required to recognize the union for another six months before it could, once again, entertain a third decertification petition and withdraw recognition from the union for a third time in this never-ending story . . . ..
Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0729n-06.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.
The union began an organizational campaign in early 2000, which culminated in unfair labor practices being filed against the employer. When the General Counsel issued a complaint, the employer instead decided to informally settle the complaint by voluntarily recognizing the union in May 2000 and providing back pay to twelve employees. The employer and union then negotiated in good faith for almost two years without ever reaching an initial bargaining agreement. In March 2002, the employees filed a decertification petition and the employer withdrew recognition from union on March 14, 2002. The union again filed ULP charges, the General Counsel again issued a complaint and the employer again agreed to settle the complaint by voluntarily recognizing the union and negotiating in good faith in October 2002.
Unfortunately for the employer, this settlement agreement contained a clause that it did not become effective until approved by the NLRB – which did not happen until February 3, 2003 and it was not judicially approved by a Court until September 2003. Notwithstanding this, the employer immediately attempted to negotiate with the union, submitted proposals and responded to information requests by the union. The parties agreed in writing to a limited wage increase for five employees on October 30, 2002. However, for a variety of reasons, the union refused to meet face-to-face with the employer until January 16, 2003. The parties then met two more times, but exchanged information and proposals several times over the next five months and came close to reaching an initial agreement.
As in 2002, the employee again submitted a decertification petition to the employer and, as in 2002, the employer withdrew recognition from the Union on June 27, 2003 – almost eight months after they began negotiating in writing in October 2002, but only five months after the Board approved the formal settlement agreement on February 3, 2003 and 5.5 months after they met face-to-face for their first bargaining meeting on January 16, 2003. Again, the union filed a ULP and, again, the General Counsel issued a complaint. However, this time, the employer decided to fight. The parties waived a hearing before an ALJ and instead issued stipulated facts directly to the NLRB, which did not rule on the dispute until August 2008 – more than eight years after the employer first recognized the union for the first time.
The NLRB decided that it was in the interest of industrial peace to require the employer to negotiate with the union for at least six months before honoring any decertification petition submitted by the employees. The NLRB was not influenced in any way by the 22 months when the employer had already bargained with the union without reaching a bargaining agreement in 2000-2002. The NLRB’s prior decision in Lee Lumber requires a presumptive six-month bargaining period following an adjudicated unfair labor practice during which a union has an irrebuttable presumption of majority status after re-recognition. In this case, the employer argued that the six-month period began in October 2002 when the parties exchanged and agreed upon proposals, information, and limited wage increases, but the union argued that the six month period did not begin until February 3 when the settlement agreement was approved by the Board. The NLRB ultimately split the baby and decided that the six months did not begin until the parties first met face-to-face on January 16, 2003. Accordingly, six months had not passed when the employer withdrew recognition on June 27, 2003 after receiving its second decertification petition in two years.
The Court affirmed the Board’s decision as reasonable and not unduly prejudicial of the employees’ rights to be free of an ineffective union since the employer was only required to recognize the union for another six months before it could, once again, entertain a third decertification petition and withdraw recognition from the union for a third time in this never-ending story . . . ..
Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0729n-06.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.
Tuesday, November 10, 2009
Sixth Circuit: Judgment for Employer is Affirmed on Sexual Harassment Claim When Investigation and Termination Was Handled Properly.
This morning, the Sixth Circuit Court of Appeals affirmed summary judgment in favor of a hospitality industry employer on a sexual harassment claim when the employer properly investigated and terminated the employee. Balding-Margolis v. Cleveland Arcade d/b/a Hyatt Regency Cleveland, No. 09-3017 (11/10/09). Retired Justice Sandra Day O’Connor was part of the panel which issued the decision. The plaintiff was a long-time waitress who was found to have violated many cash-handling procedures over a period of time, including rules against increasing the amount of her tip on a customer’s credit card payment. After she was fired, she alleged that, among other things, she had been subjected to a hostile work environment and treated differently on account of her age and sex.
According to the Court’s decision, when the plaintiff was hired, she was given copies of several policies, including the employer’s sexual harassment policy (which permitted her to bring concerns to her manager, the Director of Human Resources and a national toll-free hotline), and that she could be immediately terminated for violating cash-handling procedures. Her employment was also governed by a bargaining agreement with the UNITE HERE union. “[T]he Cash Handling Rules generally prohibited an employee from altering a guest check; required that an employee follow proper procedures; and prohibited an employee from handling checks, cash, and credit cards in an improper manner. The restrictions on altering a guest check included prohibitions on changing the tip amount or closing out a check that differed in any way from the customer’s signed receipt.” Notwithstanding these rules, and the fact that she was a trainer who oriented new employees about these rules, “[i]n October 2005, she was issued a warning when two guests left the restaurant without providing a valid form of payment. In January 2006, [plaintiff] received another warning because of a large cash variance following her shift. In May 2006, [plaintiff] received a third warning—a “Final Written Warning”—for adding an additional eighteen-percent gratuity without the customer’s permission.”
A year later, her supervisor noticed that her credit card tips equaled almost 1/3 of her receipts for the day (not including cash tips). “The high tips-to-sales ratio was suspicious and caused [her supervisor] to audit [plaintiff’s] transactions that day. [He] concluded that there were problems with one-third of [her] sales, including receipts for discounted meals that lacked the required discount coupons; ten checks without a signed copy of the room charge, credit card, or other documentation; and two unsigned receipts with listed tips that exceeded the actual food-sales amount. [He] conducted an audit of the two workers with whom [she] had been serving that day but found no similar discrepancies.” He then went back and audited the prior few weeks and involved the Controller and Human Resources Manager, confirmed that there consistently were similar violations and decided to terminate her employment. She “was given the opportunity to explain the various discrepancies, but she failed to do so.”
Plaintiff then filed an EEOC Charge and union grievance alleging sexual harassment and age discrimination. Hyatt conducted an investigation, interviewed co-workers and did not find any basis for her claims. She then filed suit in federal court.
The Court concluded that she could not satisfy a prima facie case of age discrimination because she could not show that she was replaced by a substantially younger employee or that younger employees were treated more favorably. A bartender was not her “replacement” because he had already worked in the restaurant part-time before her termination. A “person is not replaced when another employee is assigned to perform the plaintiff’s duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff’s duties.”
She also could not show that others were treated more favorably because their alleged violations were not the same.
Plaintiff also brought pay discrimination claims because trainers at non-Cleveland Hyatt hotels were paid more than her... However, she presented no evidence that she was paid less than co-workers outside of her protected class in Cleveland “‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . . . [She] concedes that she was the only server-trainer in Cleveland, and she has presented no evidence that other non-protected employees held “substantially equal” jobs and were paid more. . . . . . [She] further concedes that those employees who were paid a higher rate had greater seniority and were being paid pursuant to the provisions of the CBA.” She also presented no evidence about the age or sex of the non-Cleveland trainers, even if they could be considered as part of the same establishment.
The Court found that the plaintiff presented a prima facie case of sexual harassment, especially based on two allegations of improper physical contact and her supervisor’s daily bragging about his sexual life:
In light of her evidence of sexual harassment, Hyatt would be liable for the supervisor’s actions unless it could show by a preponderance of the evidence “that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and that [the plaintiff] ‘unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’ . . . Generally, an employer satisfies the first part of this two-part standard when it has promulgated and enforced a sexual harassment policy.”
The Court found that Hyatt had an effective sexual-harassment reporting policy and that the plaintiff failed “to take advantage of Hyatt’s corrective policy was unreasonable.”
Likewise, the Court rejected her retaliation claim. She failed to testify in her deposition about any instances of complaining to management about any sex or age discrimination, even though she complained in writing and verbally about a number of other matters. In order to invoke the protections of federal or state law, an employee needs to be direct in complaining about discrimination:
In any event, the Court also concluded that even if the plaintiff could satisfy her prima facie case, the employer had shown a legitimate, nondiscriminatory and non-retaliatory reason for firing her.
Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0732n-06.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.
According to the Court’s decision, when the plaintiff was hired, she was given copies of several policies, including the employer’s sexual harassment policy (which permitted her to bring concerns to her manager, the Director of Human Resources and a national toll-free hotline), and that she could be immediately terminated for violating cash-handling procedures. Her employment was also governed by a bargaining agreement with the UNITE HERE union. “[T]he Cash Handling Rules generally prohibited an employee from altering a guest check; required that an employee follow proper procedures; and prohibited an employee from handling checks, cash, and credit cards in an improper manner. The restrictions on altering a guest check included prohibitions on changing the tip amount or closing out a check that differed in any way from the customer’s signed receipt.” Notwithstanding these rules, and the fact that she was a trainer who oriented new employees about these rules, “[i]n October 2005, she was issued a warning when two guests left the restaurant without providing a valid form of payment. In January 2006, [plaintiff] received another warning because of a large cash variance following her shift. In May 2006, [plaintiff] received a third warning—a “Final Written Warning”—for adding an additional eighteen-percent gratuity without the customer’s permission.”
A year later, her supervisor noticed that her credit card tips equaled almost 1/3 of her receipts for the day (not including cash tips). “The high tips-to-sales ratio was suspicious and caused [her supervisor] to audit [plaintiff’s] transactions that day. [He] concluded that there were problems with one-third of [her] sales, including receipts for discounted meals that lacked the required discount coupons; ten checks without a signed copy of the room charge, credit card, or other documentation; and two unsigned receipts with listed tips that exceeded the actual food-sales amount. [He] conducted an audit of the two workers with whom [she] had been serving that day but found no similar discrepancies.” He then went back and audited the prior few weeks and involved the Controller and Human Resources Manager, confirmed that there consistently were similar violations and decided to terminate her employment. She “was given the opportunity to explain the various discrepancies, but she failed to do so.”
During the termination meeting, [plaintiff] made general complaints regarding the way that [her supervisor] had administered the staff, but she made no complaints of sex- or age-based discrimination or harassment. Following her termination, Hyatt continued auditing [her] receipts for five dates in April 2007, revealing additional discrepancies. Because [she] had alleged during her termination meeting that [her supervisor] was attempting to get her fired and that he had papered her file and/or stolen the supporting documentation that she needed to explain the discrepancies, Hyatt conducted an audit of [her] transactions during a two week period prior to [his] employment at Hyatt. That audit revealed similar cash-handling problems. Hyatt also conducted an audit of all the checks closed out by the servers on April 25, May 1 through 4, and May 8, 2007, and found that none of them had discrepancies or cash-handling violations similar to [her] discrepancies.
Plaintiff then filed an EEOC Charge and union grievance alleging sexual harassment and age discrimination. Hyatt conducted an investigation, interviewed co-workers and did not find any basis for her claims. She then filed suit in federal court.
The Court concluded that she could not satisfy a prima facie case of age discrimination because she could not show that she was replaced by a substantially younger employee or that younger employees were treated more favorably. A bartender was not her “replacement” because he had already worked in the restaurant part-time before her termination. A “person is not replaced when another employee is assigned to perform the plaintiff’s duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff’s duties.”
She also could not show that others were treated more favorably because their alleged violations were not the same.
She claims that the younger employees’ practice of marrying alcohol and their admitted but unproven failure to turn in receipts were sufficiently serious to merit comparison to the disciplinary violation that led to her termination—the cash-handling-policy violation and misappropriation of funds. . . . This is not the case. Marrying alcohol may be a violation of Ohio law, but [she] never engaged in the practice and was never disciplined for not participating. The fact that [she] was terminated for engaging in an illegal practice does not automatically make marrying alcohol and [her] infraction comparable. Misappropriation of funds and marrying alcohol are different circumstances involving distinguishable conduct.
Plaintiff also brought pay discrimination claims because trainers at non-Cleveland Hyatt hotels were paid more than her... However, she presented no evidence that she was paid less than co-workers outside of her protected class in Cleveland “‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . . . [She] concedes that she was the only server-trainer in Cleveland, and she has presented no evidence that other non-protected employees held “substantially equal” jobs and were paid more. . . . . . [She] further concedes that those employees who were paid a higher rate had greater seniority and were being paid pursuant to the provisions of the CBA.” She also presented no evidence about the age or sex of the non-Cleveland trainers, even if they could be considered as part of the same establishment.
The Court found that the plaintiff presented a prima facie case of sexual harassment, especially based on two allegations of improper physical contact and her supervisor’s daily bragging about his sexual life:
(1) The Director of Sexual “once invited [her] to lie down in his room;”
(2) The Security Director once told [her] that she was attractive;”
(3) The Director Security “once hit [her] on the buttocks and “untied [her] apron, which was tied in the back;”
(4) Her supervisor “once commented that he had a large penis;”
(5) Her supervisor “once told [her] that he had sex with one of her customers, [her] to provide a free meal to that customer, and then “put his hands . . . against the wall and dry humped it or did a pelvic thrust against it,” stating “I did her, I did her,”;
(6) Her supervisor “had once asked a female line cook to do the “boobie dance,” which involved putting the cook’s “hands underneath her chest” and moving them “up and down” and shaking “her hips;”
(7) Her supervisor “repeatedly bragged to [her] about the day that he had sexual intercourse with a fellow Hyatt server and [her] female co-worker at the Hyatt;”
(8) Her supervisor “repeatedly talked to [her] ‘about a sexual relationship he had with a former co-worker, how that co-worker was pregnant, how [he] needed to mail that pregnant woman a check so that the woman can pay for an abortion,” and how he wanted [plaintiff] to put [his] check in the mail.”
In light of her evidence of sexual harassment, Hyatt would be liable for the supervisor’s actions unless it could show by a preponderance of the evidence “that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and that [the plaintiff] ‘unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’ . . . Generally, an employer satisfies the first part of this two-part standard when it has promulgated and enforced a sexual harassment policy.”
The Court found that Hyatt had an effective sexual-harassment reporting policy and that the plaintiff failed “to take advantage of Hyatt’s corrective policy was unreasonable.”
Although her post-deposition affidavit states that she complained to Hyatt management verbally over thirty times, [her] deposition testimony indicates that she never complained to anyone concerning [her supervisor’s] harassment and discriminatory conduct other than to [her supervisor] himself. Her deposition testimony further establishes that she never complained to anyone about [the Security Director’s] conduct. [Plaintiff] failed to make these complaints notwithstanding that she testified that she was aware of the open-door policy, the complaint procedure, and the fact that if her immediate supervisor failed to act on her complaint she could go elsewhere. [She] clearly took advantage of the complaint process with regard to a variety of run-of-the-mill matters, but she failed to take advantage of the policies when it mattered most.
Likewise, the Court rejected her retaliation claim. She failed to testify in her deposition about any instances of complaining to management about any sex or age discrimination, even though she complained in writing and verbally about a number of other matters. In order to invoke the protections of federal or state law, an employee needs to be direct in complaining about discrimination:
a vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice. An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination.
In any event, the Court also concluded that even if the plaintiff could satisfy her prima facie case, the employer had shown a legitimate, nondiscriminatory and non-retaliatory reason for firing her.
Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0732n-06.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.
Friday, November 6, 2009
Franklin County Court of Appeals: Whistleblower Protection Is Not Available When Employee Submitted Complaint to OIG Which She Did Not Write Herself.
Yesterday, the Franklin County Court of Appeals affirmed the dismissal of a civil service proceeding where an administrative assistant was placed on 30-day suspension for submitting a complaint to the Office of Inspector General about an incident in her workplace because her husband wrote it for her and she was less than honest about the circumstances during the investigation. Ressler v. Ohio Dept. of Transp., 2009-Ohio-5857. The Court agreed that she was not entitled to protection under Ohio’s Whistleblower statute because her husband wrote the complaint instead of her even though she was the person who admittedly submitted the complaint to the OIG.
According to the Court’s opinion, ODOT’s chief inspector chewed out a number of employees about a missing computer hard drive. The employee heard about the incident after the fact, told her husband about it and later faxed an anonymous complaint about the incident (written by her husband) to the OIG. The complaint said that the investigator twice “threatened employees by saying he was going to drop a bomb on District 5” if the hard drive did not appear by quitting time on Friday. The investigator allegedly "said it he was acting like a mad man. He was shaking his finger in the employees [sic] faces. He would ask a question but before you could answer he would start yelling again." The complaint also indicated that employees were afraid and did not want to return to work unless the investigator was removed. Remarkably, the OIG treated this as a bomb threat.
In its subsequent investigation, the employee initially denied any involvement in the complaint, but later admitted that she faxed it without reading it or knowing its contents. The OIG’s office found her to be evasive and uncooperative and subsequently wrote the ODOT Director to report that she "committed acts of wrongdoing by sending false statements to this office and providing false testimony under oath." Accordingly, ODOT suspended her for 30 days for failure of good behavior and failing to cooperate in an official investigation. She appealed the suspension to SPBR and claimed protection as a whistleblower under R.C. 124.341. The SPBR dismissed both claims for lack of jurisdiction. The SPBR did not have jurisdiction over a suspension or over whistleblower claims where the employee was not the author of the complaint. On appeal, the trial agreed.
R.C. 12.341 prohibits retaliation against employees who file reports. The relevant portion of the statute provides:
The clear language of the statue only requires an employee to file a written report. The Court has recognized that “the primary objective of R.C. 124.341 is to protect state employees who report violations or misuse from retaliation." However, notwithstanding this fact, the Franklin County Court of Appeals has refused to protect employees who file reports under this statute unless they also wrote the report. According to the Court:
In this case, the employee was indisputably suspended in part for her role in sending the complaint to the OIG. However, she “did not author the letter on which she now relies for whistleblower protection. Although [she] was responsible for the letter's transmission to the appropriate authority, her being a "mere courier," . . . is not sufficient. Simply causing the letter's transmission, without any part in the letter's authorship, does not meet the written report requirement under R.C. 124.341.” Moreover, her suspension was based on more than faxing the complaint to OIG; it was also based on her evasive and uncooperative behavior during the subsequent investigation.
It would be a more interesting case if the employee had claimed to be more than a “mere courier” and had, instead, admitted knowledge and agreement with the contents of the complaint as being the basis for her faxing it to the OIG.
Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5857.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.
According to the Court’s opinion, ODOT’s chief inspector chewed out a number of employees about a missing computer hard drive. The employee heard about the incident after the fact, told her husband about it and later faxed an anonymous complaint about the incident (written by her husband) to the OIG. The complaint said that the investigator twice “threatened employees by saying he was going to drop a bomb on District 5” if the hard drive did not appear by quitting time on Friday. The investigator allegedly "said it he was acting like a mad man. He was shaking his finger in the employees [sic] faces. He would ask a question but before you could answer he would start yelling again." The complaint also indicated that employees were afraid and did not want to return to work unless the investigator was removed. Remarkably, the OIG treated this as a bomb threat.
In its subsequent investigation, the employee initially denied any involvement in the complaint, but later admitted that she faxed it without reading it or knowing its contents. The OIG’s office found her to be evasive and uncooperative and subsequently wrote the ODOT Director to report that she "committed acts of wrongdoing by sending false statements to this office and providing false testimony under oath." Accordingly, ODOT suspended her for 30 days for failure of good behavior and failing to cooperate in an official investigation. She appealed the suspension to SPBR and claimed protection as a whistleblower under R.C. 124.341. The SPBR dismissed both claims for lack of jurisdiction. The SPBR did not have jurisdiction over a suspension or over whistleblower claims where the employee was not the author of the complaint. On appeal, the trial agreed.
R.C. 12.341 prohibits retaliation against employees who file reports. The relevant portion of the statute provides:
If an employee in the classified or unclassified civil service becomes aware in the course of employment of a violation of state or federal statutes, rules, or regulations or the misuse of public resources, and the employee’s supervisor or appointing authority has authority to correct the violation or misuse, the employee may file a written report identifying the violation or misuse with the supervisor or appointing authority. In addition to or instead of filing a written report with the supervisor or appointing authority, the employee may file a written report with the office of internal auditing created under section 126.45 of the Revised Code.
. . . If an appointing authority takes any disciplinary or retaliatory action against a classified or unclassified employee as a result of the employee’s having filed a report under division (A) of this section, the employee’s sole and exclusive remedy, notwithstanding any other provision of law, is to file an appeal with the state personnel board of review within thirty days after receiving actual notice of the appointing authority’s action.
The clear language of the statue only requires an employee to file a written report. The Court has recognized that “the primary objective of R.C. 124.341 is to protect state employees who report violations or misuse from retaliation." However, notwithstanding this fact, the Franklin County Court of Appeals has refused to protect employees who file reports under this statute unless they also wrote the report. According to the Court:
retaliation based on the mere transmission of a report is tenuous at best, explaining "the statutory scheme clearly contemplates that the employee making the report play a bigger role than that of mere courier . . . We thus concluded an employee's responsibility for delivering the writing is not sufficient to comply with the statute's reporting requirements.
In this case, the employee was indisputably suspended in part for her role in sending the complaint to the OIG. However, she “did not author the letter on which she now relies for whistleblower protection. Although [she] was responsible for the letter's transmission to the appropriate authority, her being a "mere courier," . . . is not sufficient. Simply causing the letter's transmission, without any part in the letter's authorship, does not meet the written report requirement under R.C. 124.341.” Moreover, her suspension was based on more than faxing the complaint to OIG; it was also based on her evasive and uncooperative behavior during the subsequent investigation.
It would be a more interesting case if the employee had claimed to be more than a “mere courier” and had, instead, admitted knowledge and agreement with the contents of the complaint as being the basis for her faxing it to the OIG.
Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5857.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.
Wednesday, November 4, 2009
Franklin County Court of Appeals Affirms SERB Finding that Cincinnati Assistant Fire Chiefs Are Not Managers.
Yesterday, the Franklin County Court of Appeals affirmed a SERB ruling that Assistant Fire Chiefs were not management level employees and, thus, could join the IAFF bargaining unit. Cincinnati v. State Emp. Relations Bd., 2009-Ohio-5782. While the trial court noted that there was some evidence in the record supporting the City’s argument (that its four Assistant Chiefs were managers), it concluded that it must presume the correctness of the SERB factual findings when they were supported by substantial evidence. The Court of Appeals concluded that it could only reverse the factual conclusions for an abuse of discretion, which it did not find. In particular, the evidence showed that many of the Assistant Chief’s former management and administrative duties were transferred to the new Executive Officer hired in July 2007 and who began to act as the Chief in his absence (rather than the Assistant Chiefs).
To start, the Court noted that “public employees” have the right under Ohio Revised Code 4117.03 to join unions unless they are, among other things, “management level employees” as defined by 4117.01. In turn, § 4117.01(L) defines a management level employee as "an individual who formulates policy on behalf of the public employer, who responsibly directs the implementation of policy, or who may reasonably be required" on the public employer's behalf "to assist in the preparation for the conduct of collective negotiated agreements, or have a major role in personnel administration."
After the Executive Officer position was created in 2007, the Assistant Chiefs testified that they no longer filled in for the Chief and could not authorize purchases. While they presided over grievance hearings and could recommend disciplinary action, their recommendations had to be first approved (and could be changed) by the Chief, the Law Director and the City Manager. They could not settle grievances on their own authority. While they implement and enforce the bargaining agreement, all interpretation is left to the Human Resources Department. Admittedly, the Assistant Chiefs review District Chiefs (who in turn review Captains, who review Lieutenants, etc.). There was also evidence that they had no control over setting policy, although they could make recommendations.
While Assistant Chiefs had participated on the management team in bargaining negotiations in 2001 and 2003, they thereafter refused to participate on the grounds that they were IAFF members (even though not part of the bargaining unit). Therefore, they did not meet the statutory definition under that clause, either.
The Court rejected the City’s argument that the Assistant Chiefs outrank the Executive Officer at a fire scene because the Department followed “incident command” where the ranking officer was in Charge, whether it was the Chief, the Assistant Chief, the District Commander, Captain or Lieutenant. In contrast with the management level Captains in Twinsburg Fire Fighters, Local 3630 v. SERB, the Cincinnati Assistant Chiefs never or rarely “recommended changes to the Standard Operating Procedures and Guidelines that were adopted, updated the personnel manual, . . . re-wrote the driver's training manual without needing approval of the content, . . . enforced discipline, were in charge of fire safety programs and safety committees, and represented management during contract negotiations.”
Finally, the Court rejected the City’s argument that the Assistant Chief’s testimony should be disregarded when they accepted the benefits of a contract (which then became a City Ordinance) which gave them a 16% raise on account of their non-bargaining unit and fiduciary status. The Court agreed with the trial court that the analysis was governed by Revised Code 4117 instead of a written agreement between the parties.
Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5782.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.
To start, the Court noted that “public employees” have the right under Ohio Revised Code 4117.03 to join unions unless they are, among other things, “management level employees” as defined by 4117.01. In turn, § 4117.01(L) defines a management level employee as "an individual who formulates policy on behalf of the public employer, who responsibly directs the implementation of policy, or who may reasonably be required" on the public employer's behalf "to assist in the preparation for the conduct of collective negotiated agreements, or have a major role in personnel administration."
After the Executive Officer position was created in 2007, the Assistant Chiefs testified that they no longer filled in for the Chief and could not authorize purchases. While they presided over grievance hearings and could recommend disciplinary action, their recommendations had to be first approved (and could be changed) by the Chief, the Law Director and the City Manager. They could not settle grievances on their own authority. While they implement and enforce the bargaining agreement, all interpretation is left to the Human Resources Department. Admittedly, the Assistant Chiefs review District Chiefs (who in turn review Captains, who review Lieutenants, etc.). There was also evidence that they had no control over setting policy, although they could make recommendations.
While Assistant Chiefs had participated on the management team in bargaining negotiations in 2001 and 2003, they thereafter refused to participate on the grounds that they were IAFF members (even though not part of the bargaining unit). Therefore, they did not meet the statutory definition under that clause, either.
The Court rejected the City’s argument that the Assistant Chiefs outrank the Executive Officer at a fire scene because the Department followed “incident command” where the ranking officer was in Charge, whether it was the Chief, the Assistant Chief, the District Commander, Captain or Lieutenant. In contrast with the management level Captains in Twinsburg Fire Fighters, Local 3630 v. SERB, the Cincinnati Assistant Chiefs never or rarely “recommended changes to the Standard Operating Procedures and Guidelines that were adopted, updated the personnel manual, . . . re-wrote the driver's training manual without needing approval of the content, . . . enforced discipline, were in charge of fire safety programs and safety committees, and represented management during contract negotiations.”
Finally, the Court rejected the City’s argument that the Assistant Chief’s testimony should be disregarded when they accepted the benefits of a contract (which then became a City Ordinance) which gave them a 16% raise on account of their non-bargaining unit and fiduciary status. The Court agreed with the trial court that the analysis was governed by Revised Code 4117 instead of a written agreement between the parties.
Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5782.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.
Tuesday, November 3, 2009
Sixth Circuit Dismisses FMLA Claim of Employee Hit By Car for Lack of Specific Medical Evidence Despite Employer’s Own FMLA Violation.
This morning, a divided federal Sixth Circuit Court of Appeals affirmed the dismissal of an FMLA claim, but on different grounds than the trial court. Stimpson v. UPS, 08-2263 (6th Cir. 11/3/09). The Court found that the employee did not qualify for FMLA leave because he failed to show that he suffered from a serious health condition even though he had been injured when his bicycle was hit by an automobile, visited an emergency room, was prescribed medication and produced statements from two different physicians that he was unable to work for several weeks. Rather, the Court was influenced by the plaintiff’s failure to fill the drug prescription given to him in the ER and the lack of specificity by his medical providers. Nonetheless, the Court also rejected the argument that the plaintiff failed to give sufficient notice of his need for FMLA leave and noted that the employer violated the FMLA when it only gave the employee 72 hours to produce a medical statement under the collective bargaining agreement because the FMLA gave the employee 15 days to produce such a statement. However, the employer’s violation did not save the employee’s FMLA claim because he failed to produce the requested medical statement within fifteen days.
As described by the Court, the plaintiff was riding his bicycle (while intoxicated) when it was struck by a car around 3:30 p.m. on April 29, 2006. The motorist was cited for following him too closely. He denied medical treatment at the scene, but later visited an ER where he was prescribed medication after complaining about lower back pain and the physicians noted extensive bruising where he had collided with the road pavement in the earlier accident. He was also diagnosed with an acute lumbar strain. He was discharged 2.5 hours after checking in. Even though he never filled the medical prescription, he returned to the ER the next day because of his back pain and was promptly discharged for failing to fill his earlier prescription. There was evidence that he also notified his supervisors at UPS about his accident, but he did not return to work for about three weeks, failed to call off daily under regular UPS procedures and failed to provide medical documentation of his inability to work before May 22. UPS claims that it verbally requested medical documentation and sent him a letter requesting medical documentation to be submitted within 72 hours (as required under the CBA). When the plaintiff failed to submit medical documentation before May 12 (because, as he claimed, he had moved and did not receive the UPS letter until May 22), he was terminated.
On May 23, the plaintiff filed a grievance with the union and submitted three medical statements that he could not work until May 20. When his grievance was denied, he filed an Unfair Labor Practice Charge with the NLRB on the grounds that he was being retaliated against for his prior union activities (in that he had previously been terminated by UPS for union activities and was reinstated by court order in September 2005 after an earlier ULP Charge he filed with the NLRB). However, unlike his prior ULP Charge, the NLRB dismissed this Charge. He then filed his FMLA lawsuit.
The District Court granted summary judgment to UPS because it concluded that the plaintiff was not eligible for FMLA leave in that -- even disregarding his earlier unlawful termination – he had not worked 1250 hours in the prior 12 months and had failed to give proper notice of his need for FMLA leave. In addition, the trial court questioned whether he suffered from a serious health condition under the circumstances.
The Court of Appeals agreed with the plaintiff that there was a material factual dispute about how many hours he would have worked in the prior 12 months if he had not previously been unlawfully terminated. Even though the NLRB only required payment of a certain amount of back pay (less than 1250 hours), it failed to address the plaintiff’s claim that he would have worked additional hours and such evidence had been submitted to the District Court. Accordingly, summary judgment on that issue was inappropriate.
The Court also found sufficient evidence that the plaintiff had properly notified UPS of his accident and potential need for FMLA leave. The Court also noted that UPS acted entirely properly by notifying the plaintiff in writing that it wanted more medical information before designating FMLA leave. The Court did not address the question of whether the plaintiff was required to call off each day as required by UPS internal procedures.
However, the Court found that UPS violated the FMLA by only giving the plaintiff 72 hours written notice of the need for medical documentation:
Section 2652(b) of the FMLA provides that: “The rights established for employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan.”
Ultimately, the Court majority concluded that UPS’s mistake was irrelevant because even if he had submitted the information within fifteen days, the plaintiff failed to show that he suffered from a serious health condition. The plaintiff had never been admitted as an inpatient. His failure to fill his ER prescription also meant that he could not show a regiment of continuing care. “For example, an outpatient procedure with a follow-up appointment is not a “regimen of continuing treatment.” See Morris v. Family Dollar Stores of Ohio, Inc., No. 07-3417, 2009 U.S. App. LEXIS 6852, at *17-18 (6th Cir. Mar. 31, 2009).”
Surprisingly, the Court also found the medical statements submitted by his physicians to be deficient:
The Court was also influenced by the fact that the plaintiff failed to follow his physician’s treatment advice:
In short, even though two different physicians indicated that the plaintiff should not return to work for three weeks and even though there was no contrary medical evidence offered by the employer, the Court disregarded their expert medical opinions of the treating physicians and focused, instead, on the particular diagnosis and the fact that the plaintiff failed to follow medical advice (which presumably lengthened his period of disability).
In contrast, the dissent concluded that UPS would be required to first notify the plaintiff why his medical certification was deficient before he could be terminated for failing to satisfy his burden of proof. The majority dismissed this concern on the grounds that the plaintiff failed to submit any medical documentation within fifteen days. Thus, only when medical certification has been timely submitted would an employer be required to permit an employee to cure a deficiency.
The dissent also noted that while bruises probably are not serious health conditions, an acute lumbar strain could be:
The majority dismissed this concern as merely hypothetical in light of the lack of evidence and specificity in the medical statements.
Insomniacs may read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0712n-06.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.
As described by the Court, the plaintiff was riding his bicycle (while intoxicated) when it was struck by a car around 3:30 p.m. on April 29, 2006. The motorist was cited for following him too closely. He denied medical treatment at the scene, but later visited an ER where he was prescribed medication after complaining about lower back pain and the physicians noted extensive bruising where he had collided with the road pavement in the earlier accident. He was also diagnosed with an acute lumbar strain. He was discharged 2.5 hours after checking in. Even though he never filled the medical prescription, he returned to the ER the next day because of his back pain and was promptly discharged for failing to fill his earlier prescription. There was evidence that he also notified his supervisors at UPS about his accident, but he did not return to work for about three weeks, failed to call off daily under regular UPS procedures and failed to provide medical documentation of his inability to work before May 22. UPS claims that it verbally requested medical documentation and sent him a letter requesting medical documentation to be submitted within 72 hours (as required under the CBA). When the plaintiff failed to submit medical documentation before May 12 (because, as he claimed, he had moved and did not receive the UPS letter until May 22), he was terminated.
On May 23, the plaintiff filed a grievance with the union and submitted three medical statements that he could not work until May 20. When his grievance was denied, he filed an Unfair Labor Practice Charge with the NLRB on the grounds that he was being retaliated against for his prior union activities (in that he had previously been terminated by UPS for union activities and was reinstated by court order in September 2005 after an earlier ULP Charge he filed with the NLRB). However, unlike his prior ULP Charge, the NLRB dismissed this Charge. He then filed his FMLA lawsuit.
The District Court granted summary judgment to UPS because it concluded that the plaintiff was not eligible for FMLA leave in that -- even disregarding his earlier unlawful termination – he had not worked 1250 hours in the prior 12 months and had failed to give proper notice of his need for FMLA leave. In addition, the trial court questioned whether he suffered from a serious health condition under the circumstances.
The Court of Appeals agreed with the plaintiff that there was a material factual dispute about how many hours he would have worked in the prior 12 months if he had not previously been unlawfully terminated. Even though the NLRB only required payment of a certain amount of back pay (less than 1250 hours), it failed to address the plaintiff’s claim that he would have worked additional hours and such evidence had been submitted to the District Court. Accordingly, summary judgment on that issue was inappropriate.
The Court also found sufficient evidence that the plaintiff had properly notified UPS of his accident and potential need for FMLA leave. The Court also noted that UPS acted entirely properly by notifying the plaintiff in writing that it wanted more medical information before designating FMLA leave. The Court did not address the question of whether the plaintiff was required to call off each day as required by UPS internal procedures.
However, the Court found that UPS violated the FMLA by only giving the plaintiff 72 hours written notice of the need for medical documentation:
The regulations state that “[t]he employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so.” 29 C.F.R. § 825.305(b). While UPS argues that its labor agreement with the Teamsters allows it to provide a shorter time period of seventy-two hours, the FMLA expressly provides that no collective bargaining agreement, such as that UPS has with the Teamsters Union, may diminish any protection granted by the FMLA. 29 U.S.C. § 2652(b). The fifteen-day period expired on May 20, 2006, two days before [the plaintiff] submitted his medical information. However, UPS terminated [the plaintiff] on May 12, 2006, well before the expiration of the fifteen-day period. [The plaintiff] missed the deadline, but UPS had first terminated him under a mistaken understanding of the applicable deadline.
Section 2652(b) of the FMLA provides that: “The rights established for employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan.”
Ultimately, the Court majority concluded that UPS’s mistake was irrelevant because even if he had submitted the information within fifteen days, the plaintiff failed to show that he suffered from a serious health condition. The plaintiff had never been admitted as an inpatient. His failure to fill his ER prescription also meant that he could not show a regiment of continuing care. “For example, an outpatient procedure with a follow-up appointment is not a “regimen of continuing treatment.” See Morris v. Family Dollar Stores of Ohio, Inc., No. 07-3417, 2009 U.S. App. LEXIS 6852, at *17-18 (6th Cir. Mar. 31, 2009).”
Surprisingly, the Court also found the medical statements submitted by his physicians to be deficient:
While [the plaintiff] has produced three separate notes from physicians stating that he could not return to work, the most detailed notation given on the forms is that [the plaintiff] cannot work “for medical reasons.” These notes fall far short of the requirement that any doctor’s certification must contain at a minimum “(1) the date on which the serious health condition began, (2) the probable duration of the condition, (3) the appropriate medical facts within the health care provider’s knowledge, and (4) a statement that the employee is unable to perform [his] job duties” in order to be valid.
The Court was also influenced by the fact that the plaintiff failed to follow his physician’s treatment advice:
[The plaintiff] also has not provided any other medical evidence to counter the emergency treating physician’s final diagnosis of bruises and mild back pain. Importantly, none of the medical information [the plaintiff] has provided suggests that his back pain significantly limited his movement or lifting ability, particularly when treated with the prescription [the plaintiff] refused to take. Because [the plaintiff] cannot demonstrate that he suffered from a serious health condition, he is not eligible for FMLA leave.
In short, even though two different physicians indicated that the plaintiff should not return to work for three weeks and even though there was no contrary medical evidence offered by the employer, the Court disregarded their expert medical opinions of the treating physicians and focused, instead, on the particular diagnosis and the fact that the plaintiff failed to follow medical advice (which presumably lengthened his period of disability).
In contrast, the dissent concluded that UPS would be required to first notify the plaintiff why his medical certification was deficient before he could be terminated for failing to satisfy his burden of proof. The majority dismissed this concern on the grounds that the plaintiff failed to submit any medical documentation within fifteen days. Thus, only when medical certification has been timely submitted would an employer be required to permit an employee to cure a deficiency.
The dissent also noted that while bruises probably are not serious health conditions, an acute lumbar strain could be:
Symptoms vary depending on the severity of the strain, but “[t]ypically, the patient with a low back strain moves with care, particularly when sitting down or standing up.” Id. Treatment “includes patient reassurance, brief bed rest during the acute phase of low back pain, a firm mattress with a bed board, and the judicious use of analgesics or nonsteroidal anti-inflammatory drugs (NSAIDs).” Id. ¶ 15A.46. Additionally, “the patient should be instructed to avoid activities that intensify back pain.” Id. The recovery period depends upon the severity of the strain. Although “[t]he acute back strain patient generally experiences gradual improvement over a period lasting approximately two weeks,” patients with severe strains may not recover for up to three weeks. Id. ¶ 15A.47. Finally, there is a “significant likelihood of recurrence,” and “[w]hile the first episode of back pain is usually the briefest and least severe, the vast majority of such patients are at risk of developing another episode of back pain that will be more severe and longer lasting.” Id. Clearly, an acute lumbar strain can be a “serious health condition that makes the employee unable to perform the functions of [his] position.” 29 U.S.C. § 2612(a)(1)(D).
The majority dismissed this concern as merely hypothetical in light of the lack of evidence and specificity in the medical statements.
Insomniacs may read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0712n-06.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.
Thursday, October 29, 2009
New Act Expands Servicemember and Caregiver Leave under the FMLA.
As discussed in the February 13, 2008 posting at Servicemember Leave Amendments to the FMLA: Overdue or Raising More Questions Than Answered? , on January 28, 2008, President Bush signed the National Defense Authorization Act of 2008, § 585 of which amended the FMLA to create two new forms of family leave: exigency leave and caregiver leave for members of the families of military servicemembers. Yesterday, President Obama signed the National Defense Authorization Act for Fiscal Year 2010, which amended the NDAA Amendment to the FMLA. In this very long Act, section 565 amends the FMLA in a number of respects.
In short, the new FMLA amendments delete references to “contingency operations,” replaces “active duty” to “covered active duty,” expands exigency leave coverage to members of the families of active members of the regular armed forces (instead of just members of the reserved forces and national guard) and expands coverage of the 26-week servicemember leave to families of veterans who served in covered active duty at any point in the prior five years and were injured in the line of covered active duty.
First, the new amendment deletes the “newish” subsection (16) of the amended FMLA and amends the “newish” subsections (14), (15), and (19):
These “newish” subjections have been replaced by the following language:
The “newish” subsections (16) through (19) have now been renumbered as paragraphs (15) through (18), respectively. In other words, the language of “newish” subjections (17) and (18) has not changed, but they have been renumbered to (16) and (17) and “newish” subjection (16) [on contingency operations] was deleted entirely.
Second, the new amendment modified 29 U.S.C. § 2612(a)(1)(E), which currently provides:
To the following language:
Third, 29 U.C.S. § 2612 (e)(3) has been amended as follows:
From the current language:
To the new language:
Fourth, the new Act inserts the following language for 29 U.S.C. § 2611(19):
Finally, the employee’s duties regarding foreseeable leave under 29 U.S.C. § 2612(e)(2)(A) have been amended as follows:
Revised FMLA regulations are sure to follow at some point . . . .
Insomniacs can read the new Act in its entirety at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2647enr.txt.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.
In short, the new FMLA amendments delete references to “contingency operations,” replaces “active duty” to “covered active duty,” expands exigency leave coverage to members of the families of active members of the regular armed forces (instead of just members of the reserved forces and national guard) and expands coverage of the 26-week servicemember leave to families of veterans who served in covered active duty at any point in the prior five years and were injured in the line of covered active duty.
First, the new amendment deletes the “newish” subsection (16) of the amended FMLA and amends the “newish” subsections (14), (15), and (19):
(14) ACTIVE DUTY.—The term ‘active duty’ means duty under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) CONTINGENCY OPERATION.—The term ‘contingency operation’ has the same meaning given such term in section 101(a)(13) of title 10, United States Code.
(16) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.
. . .
(19) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’, in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.
These “newish” subjections have been replaced by the following language:
(14) COVERED ACTIVE DUTY.—The term ‘covered active duty’ means—
‘‘(A) in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
(B) in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means—
(A) a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
(B) a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
. . .
(18) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’—
(A) in the case of a member of the Armed Forces (including a member of the National Guard or Reserves), means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating; and
‘‘(B) in the case of a veteran who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during a period described in paragraph (15)(B), means a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred
by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.
The “newish” subsections (16) through (19) have now been renumbered as paragraphs (15) through (18), respectively. In other words, the language of “newish” subjections (17) and (18) has not changed, but they have been renumbered to (16) and (17) and “newish” subjection (16) [on contingency operations] was deleted entirely.
Second, the new amendment modified 29 U.S.C. § 2612(a)(1)(E), which currently provides:
(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.
To the following language:
(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.
Third, 29 U.C.S. § 2612 (e)(3) has been amended as follows:
From the current language:
NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on active duty, or because of notification of an impending call or order to active duty in support of a contingency operation, the employee shall provide such notice to the employer as is reasonable and practicable.
To the new language:
NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on covered active duty, or because of notification of an impending call or order to covered active duty, the employee shall provide such notice to the employer as is reasonable and practicable.
Fourth, the new Act inserts the following language for 29 U.S.C. § 2611(19):
(19) VETERAN.— The term ‘veteran’ has the meaning given the term in section 101 of title 38, United States Code.
Finally, the employee’s duties regarding foreseeable leave under 29 U.S.C. § 2612(e)(2)(A) have been amended as follows:
(2) Duties of employee.
In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) of this section is foreseeable based on planned medical treatment, the employee -
(A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer,subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, parent, or covered servicemember of the employee, as appropriate; and
Revised FMLA regulations are sure to follow at some point . . . .
Insomniacs can read the new Act in its entirety at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2647enr.txt.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.
Tuesday, October 27, 2009
Ohio Court of Appeals: Employer Not Entitled to Self-Help By Keeping Employee’s Pay Check When He Removed Information from the Company’s Laptop.
Last month, the Ohio Court of Appeals for Richland County affirmed a trial court judgment which held that an resigning employee was entitled to his salary and final paycheck which his former employer withheld when it discovered that he had deleted information from the employer’s laptop. Bush v. Signals Power and Grounding Specialists, Inc., 2009-Ohio-5095 (9/25/09). However, the court remanded the case in order for the trial court to determine whether the employee should be liable for converting the employer’s property by wiping clean the laptop’s hard drive.
According to the court’s opinion, the plaintiff was employed to train his co-workers and to design and make presentations about the defendant’s business. In doing so, he developed a library of research which he stored on the laptop issued to him by the employer. When he decided to resign, he removed and/or wiped clean the hard drive of the laptop, erased the internet history and changed his password before returning it. Upon discovering that the information was missing, the employer emailed the plaintiff complaining about these actions and stating that he would not receive his final paycheck until this was all straightened out.
The employee then sued for his unpaid wages, unpaid vacation pay and unreimbursed employment expenses. The employer brought a counter-claim for conversion. The employee was ultimately awarded over $16,000 plus interest by the trial court, which dismissed the employer’s conversion counterclaim. The employer appealed.
Conversion consists essentially of retaining another’s property after its return has been requested. The trial court concluded that the employer could not prevail in this case because it had never demanded the return of its property. The employer argued both that it was not required to demand the return of its property under the circumstances and that, in any event, it had done so. The court of appeals agreed that the employer’s demand was a necessary element of the conversion claim, but that its email complaining about the deletion of the information and threatening to withhold the final paycheck until the matter was resolved could arguably constitute a demand for the return of its property under the circumstances. Therefore, the employer’s counterclaim was remanded back to the trial court to resolve on the merits.
The court of appeals also affirmed the verdict in favor of the employee’s wage claim. The employer argued that it was entitled to retain the employee’s wages because he had been a “faithless servant” by deleting/keeping the information library, etc. However, the court distinguished this situation from where an employee embezzles from his employer over time and the employer recoups his unpaid wages earned during the period of criminal faithlessness in order to minimize the amount of the theft. In this situation, the employee abruptly deleted the information in the minutes before he resigned and it was not accomplished over a lengthy period of time. Thus, retaining the wages he earned over the prior month was disproportionate to an action which took only a few minutes.
Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/5/2009/2009-ohio-5095.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.
According to the court’s opinion, the plaintiff was employed to train his co-workers and to design and make presentations about the defendant’s business. In doing so, he developed a library of research which he stored on the laptop issued to him by the employer. When he decided to resign, he removed and/or wiped clean the hard drive of the laptop, erased the internet history and changed his password before returning it. Upon discovering that the information was missing, the employer emailed the plaintiff complaining about these actions and stating that he would not receive his final paycheck until this was all straightened out.
The employee then sued for his unpaid wages, unpaid vacation pay and unreimbursed employment expenses. The employer brought a counter-claim for conversion. The employee was ultimately awarded over $16,000 plus interest by the trial court, which dismissed the employer’s conversion counterclaim. The employer appealed.
Conversion consists essentially of retaining another’s property after its return has been requested. The trial court concluded that the employer could not prevail in this case because it had never demanded the return of its property. The employer argued both that it was not required to demand the return of its property under the circumstances and that, in any event, it had done so. The court of appeals agreed that the employer’s demand was a necessary element of the conversion claim, but that its email complaining about the deletion of the information and threatening to withhold the final paycheck until the matter was resolved could arguably constitute a demand for the return of its property under the circumstances. Therefore, the employer’s counterclaim was remanded back to the trial court to resolve on the merits.
The court of appeals also affirmed the verdict in favor of the employee’s wage claim. The employer argued that it was entitled to retain the employee’s wages because he had been a “faithless servant” by deleting/keeping the information library, etc. However, the court distinguished this situation from where an employee embezzles from his employer over time and the employer recoups his unpaid wages earned during the period of criminal faithlessness in order to minimize the amount of the theft. In this situation, the employee abruptly deleted the information in the minutes before he resigned and it was not accomplished over a lengthy period of time. Thus, retaining the wages he earned over the prior month was disproportionate to an action which took only a few minutes.
Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/5/2009/2009-ohio-5095.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.
Wednesday, September 23, 2009
EEOC Proposes New Regulations Under ADAA.
Last week, the EEOC proposed new ADA regulations to implement the Americans With Disabilities Amendment Act (ADAA) which took affect on January 1, 2009. The new regulations were published this morning in the Federal Register. The EEOC published a Q&A brochure about the new regulations on its website last week. Among other things, the new regulations indicate the existence of per se disabilities and per se non-disabilities.
Impairments. The proposed regulations indicate that certain “impairments will consistently meet the definition of disability,” and assessment of the existence of a disability can be conducted quickly and easily in these situations, such as when the individual has cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis, major depression, PTSD, etc. By way of comparison, other impairments may be disabling for some and not for others. Still others will typically not be considered disabilities, such as the common cold, seasonal or common flue, sprains, non-chronic gastrointestinal disorders, etc.
Major Life Activities. As discussed in a prior summary at Congress Passes ADA Amendments Act to Abrogate Pro-Employer Supreme Court Decisions, the ADAA broadened the definition of “major life activity” and provided that disability should be broadly construed in favor of coverage. With that in mind, the new proposed regulations specify that major life activities include “concentrating, thinking, communicating, interacting with others”, etc. and that an individual is substantially limited in a major life activity if that person is limited in any one of those activities, regardless of whether the individual is substantially limited in the ability to work or limited “in the ability to perform activities of central importance to daily life.” Rather, “an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.” Moreover, “[t]he comparison of an individual’s limitation to the ability of most people in the general population often may be made using a common sense standard, without resorting to scientific or medical evidence.”
That being said, the EEOC still proposes a regulation on what it means to be substantially limited in the major life activity of working. An impairment will be considered to substantially limit the ability to work “if it substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue” which “includes the job the individual has the individual has been performing, or for which the individual is applying, and jobs with similar qualifications or job-related requirements which the individual would be substantially limited in performing because of the impairment.”
While there is a “transitory and minor” exception to “substantially working” for impairments which are not expected to last more than six months, this exception “does not establish a durational minimum for the definition of ‘disability’” for an actual disability or record of disability. “An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.” Notably, “the focus is on how a major life activity is substantially limited, not on what an individual can do in spite of an impairment.” In addition, “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples may include . . . asthma, . . . psychiatric disabilities, such as depression,” etc.
Mitigating Measures. The ADAA removed the “mitigating measures” doctrine from the consideration of what constitutes a covered disability, except with respect to the use of contacts or eye glasses. As stated in the proposed regulations, an individual who would be substantially limited in a major life activity without the use of medication or other mitigating measure would be considered to be disabled. By way of example, “[a]n individual who is taking a psychiatric medication for depression, . . . has a disability if there is evidence that the mental impairment, . . if left untreated, would substantially limit a major life activity.”
Record of Impairment. An individual has a covered record of disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” For example, “[a]n employee who in the past was misdiagnosed with bipolar disorder and hospitalized as the result of a temporary reaction to medication she was taking has a record of a substantially limiting impairment, even though she did not actually have bipolar disorder.”
Regarded As Disabled. An individuals will have a covered disability
“[C]overage can be established whether or not the employer was motivated by myths, fears, or stereotypes. . . an individual is regarded as disabled when an [employer] takes some action prohibited by the ADA . . . because of an actual or perceived impairment” or symptoms or “mitigating measures, such as medication that an individual uses because of an impairment.”
Employers are not required to provide reasonable accommodations to employees who are merely regarded as disabled, but are to employees who are actually disabled or have a record of disability.
Defenses. Employers may still defend accusations of disability discrimination by showing that the employee did not establish that he or she was otherwise qualified for the position based on a “qualification standard” that is “job related and consistent with business necessity,” or that she or she poses “a direct threat to health or safety based on the best available objective medical evidence and an individualized assessment of the risk if any, posed.” Employers may also argue that the impairment was both transitory and minor.
The EEOC will accept written comments on the proposed rules until November 23, 2009.
Insomniacs can read the proposed regulations at http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf and the EEOC’s Questions and Answer brochure at http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.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. 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.
Impairments. The proposed regulations indicate that certain “impairments will consistently meet the definition of disability,” and assessment of the existence of a disability can be conducted quickly and easily in these situations, such as when the individual has cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis, major depression, PTSD, etc. By way of comparison, other impairments may be disabling for some and not for others. Still others will typically not be considered disabilities, such as the common cold, seasonal or common flue, sprains, non-chronic gastrointestinal disorders, etc.
Major Life Activities. As discussed in a prior summary at Congress Passes ADA Amendments Act to Abrogate Pro-Employer Supreme Court Decisions, the ADAA broadened the definition of “major life activity” and provided that disability should be broadly construed in favor of coverage. With that in mind, the new proposed regulations specify that major life activities include “concentrating, thinking, communicating, interacting with others”, etc. and that an individual is substantially limited in a major life activity if that person is limited in any one of those activities, regardless of whether the individual is substantially limited in the ability to work or limited “in the ability to perform activities of central importance to daily life.” Rather, “an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.” Moreover, “[t]he comparison of an individual’s limitation to the ability of most people in the general population often may be made using a common sense standard, without resorting to scientific or medical evidence.”
That being said, the EEOC still proposes a regulation on what it means to be substantially limited in the major life activity of working. An impairment will be considered to substantially limit the ability to work “if it substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue” which “includes the job the individual has the individual has been performing, or for which the individual is applying, and jobs with similar qualifications or job-related requirements which the individual would be substantially limited in performing because of the impairment.”
While there is a “transitory and minor” exception to “substantially working” for impairments which are not expected to last more than six months, this exception “does not establish a durational minimum for the definition of ‘disability’” for an actual disability or record of disability. “An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.” Notably, “the focus is on how a major life activity is substantially limited, not on what an individual can do in spite of an impairment.” In addition, “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples may include . . . asthma, . . . psychiatric disabilities, such as depression,” etc.
Mitigating Measures. The ADAA removed the “mitigating measures” doctrine from the consideration of what constitutes a covered disability, except with respect to the use of contacts or eye glasses. As stated in the proposed regulations, an individual who would be substantially limited in a major life activity without the use of medication or other mitigating measure would be considered to be disabled. By way of example, “[a]n individual who is taking a psychiatric medication for depression, . . . has a disability if there is evidence that the mental impairment, . . if left untreated, would substantially limit a major life activity.”
Record of Impairment. An individual has a covered record of disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” For example, “[a]n employee who in the past was misdiagnosed with bipolar disorder and hospitalized as the result of a temporary reaction to medication she was taking has a record of a substantially limiting impairment, even though she did not actually have bipolar disorder.”
Regarded As Disabled. An individuals will have a covered disability
if the individual is subjected to an action prohibited by this part, including . .denial of any other term, condition, or privilege of employment based on an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. Proof that the individual was subjected to a prohibited employment action e.g., excluded from one job, because of an impairment other than an impairment that is transitory and minor . . . ) is sufficient to establish coverage. . . . Evidence that the employer believed the individual was substantially limited in any major life activity is not required.(emphasis added).
“[C]overage can be established whether or not the employer was motivated by myths, fears, or stereotypes. . . an individual is regarded as disabled when an [employer] takes some action prohibited by the ADA . . . because of an actual or perceived impairment” or symptoms or “mitigating measures, such as medication that an individual uses because of an impairment.”
Proof that the individual was subjected to a prohibited employment action . . . is sufficient to establish coverage under the ‘regarded as’ definition . . . Evidence that the employer believed the individual was substantially limited in any major life activity is not required.
Employers are not required to provide reasonable accommodations to employees who are merely regarded as disabled, but are to employees who are actually disabled or have a record of disability.
Defenses. Employers may still defend accusations of disability discrimination by showing that the employee did not establish that he or she was otherwise qualified for the position based on a “qualification standard” that is “job related and consistent with business necessity,” or that she or she poses “a direct threat to health or safety based on the best available objective medical evidence and an individualized assessment of the risk if any, posed.” Employers may also argue that the impairment was both transitory and minor.
The EEOC will accept written comments on the proposed rules until November 23, 2009.
Insomniacs can read the proposed regulations at http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf and the EEOC’s Questions and Answer brochure at http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.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. 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.
Monday, September 14, 2009
EEOC Obtains $4.5M Settlement Based on ADEA Disparate Impact Claim When Insurance Company Adopted Year-Long Hiring Freeze
On Friday, the EEOC announced “a major settlement of an age discrimination class lawsuit against Allstate Insurance Company, one of the nation’s largest insurers, for $4,500,000 to be paid to approximately 90 older former employees, in addition to significant remedial relief.”
The EEOC filed a lawsuit under the ADEA against Allstate in October 2004alleging “that in the year 2000 Allstate adopted a hiring moratorium for a period of one year, or while severance benefits were being received, that applied to all its employee-sales agents who were part of its Preparing For The Future Reorganization Program. The program was part of Allstate’s reorganization from employee agents to what the company considered independent contractors. The EEOC alleged that the policy had a disproportionate impact on Allstate’s employees over the age of 40 because more than 90 percent of the agents subjected to the hiring moratorium were 40 years of age or older. Allstate denies that its hiring moratorium violated the ADEA.” Disparate impact claims were recognized by the Supreme Court’s 2005 decision in Smith v. City of Jackson.
The terms of the settlement, which is “pending approval by U.S. District Judge E. Richard Webber in U.S. District Court for the Eastern District of Missouri (Civil Action No. 4:04CV01359 ERW), Allstate will pay former employees who sought employment -- or would have sought employment with the company in the absence of its policy -- a total of $4.5 million to be divided among the class via a settlement fund. The order, in effect for three years, also provides for discrimination prevention training, posting of notices, reporting and monitoring, and other relief designed to educate Allstate managers in order to prevent future violations of the ADEA.” A 2007 settlement for $250,000 of disparate treatment claims under ADEA brought by two individual employees is not part of this larger settlement agreement.
Insomniacs can read the full press release at http://www.eeoc.gov/press/9-11-09a.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. 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.
The EEOC filed a lawsuit under the ADEA against Allstate in October 2004alleging “that in the year 2000 Allstate adopted a hiring moratorium for a period of one year, or while severance benefits were being received, that applied to all its employee-sales agents who were part of its Preparing For The Future Reorganization Program. The program was part of Allstate’s reorganization from employee agents to what the company considered independent contractors. The EEOC alleged that the policy had a disproportionate impact on Allstate’s employees over the age of 40 because more than 90 percent of the agents subjected to the hiring moratorium were 40 years of age or older. Allstate denies that its hiring moratorium violated the ADEA.” Disparate impact claims were recognized by the Supreme Court’s 2005 decision in Smith v. City of Jackson.
The terms of the settlement, which is “pending approval by U.S. District Judge E. Richard Webber in U.S. District Court for the Eastern District of Missouri (Civil Action No. 4:04CV01359 ERW), Allstate will pay former employees who sought employment -- or would have sought employment with the company in the absence of its policy -- a total of $4.5 million to be divided among the class via a settlement fund. The order, in effect for three years, also provides for discrimination prevention training, posting of notices, reporting and monitoring, and other relief designed to educate Allstate managers in order to prevent future violations of the ADEA.” A 2007 settlement for $250,000 of disparate treatment claims under ADEA brought by two individual employees is not part of this larger settlement agreement.
Insomniacs can read the full press release at http://www.eeoc.gov/press/9-11-09a.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. 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.
Thursday, September 10, 2009
Sixth and Third Circuits Address Employment Discrimination Against Gay and Lesbian Employees.
At the end of August, the federal Sixth and Third Circuit Courts of Appeal both addressed the same issue: whether gay and lesbian employees could pursue religion discrimination claims under Title VII against employers who discriminated against them on account of their sexual orientation. In both cases, the Courts refused to permit the employees to pursue religion discrimination claims under Title VII on the grounds that they were not being discriminated against because of their religious or other voluntary beliefs, but rather, because of who they were. However, in both cases, the Court found possible alternative theories of relief for the plaintiffs. In the Sixth Circuit, the Court found the plaintiffs could maintain a constitutional First Amendment claim against the non-profit employer on account of legislative appropriations to that specific agency. Pedreira v. Kentucky Baptists Homes for Children, Inc., No. 08-5583 (6th Cir. 8/31/09). In the Third Circuit, the court found the plaintiff could pursue a sex-stereotyping claim on the grounds that he was being discriminated against for not being a stereotypical macho, blue-collar man. Prowel v. Wise Business Forms, Inc., No. 07-3997 (3rd Cir. 8/28/09).
Title VII Claims
The Pedreira plaintiff was terminated from her position with the non-profit children’s home “because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values.” After her termination, the employer announced a policy of refusing to employ any homosexuals. She brought a claim under the Kentucky Civil Rights Act, which was analyzed as a Title VII claim. The Court, however, found that she failed to state a claim for relief: “Pedreira does not allege that her sexual orientation is premised on her religious beliefs or lack thereof, nor does she state whether she accepts or rejects Baptist beliefs. While there may be factual situations in which an employer equates an employee’s sexuality with her religious beliefs or lack thereof, in this case, Pedreira has “failed to state a claim upon which relief could be granted.” See also Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (Title VII does not encompass discrimination on account of sexual orientation). In short, the plaintiff did not allege that her sexual orientation was a voluntary decision akin to religious beliefs and practices. Another plaintiff brought a failure to hire claim on the grounds that she did not apply for a social worker opening because of the employer’s homophobic policy. The court surprisingly dismissed that claim on the grounds it was speculative (in that she never applied for a job) instead of on the grounds that such discrimination is not actionable under either Title VII or the KCRA. Thus, the possibility remains that the Sixth Circuit could recognize a case of sexual orientation discrimination under Title VII under a different factual situation.
The Prowell plaintiff was involuntarily laid off after he complained about workplace harassment on account of his sexual orientation. He filed suit, claiming that he was unlawfully discriminated against in violation of Title VII on account of his sex and religion. Like the Pedreira case, the Third Circuit dismissed the religion discrimination claim because his testimony showed that he was discriminated against on account of his sexual orientation, not his beliefs or the religious beliefs of others. Like the Sixth Circuit, the Third Circuit had previously determined that Title VII did not encompass discrimination on account of sexual orientation. Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir.2001).
However, the Third Circuit found that the Prowell plaintiff could pursue a sex stereotyping claim to the same extent that a woman could. The plaintiff described himself as an “effeminate man” and claimed he did not fit in with his other male co-workers because he did not conform to gender stereotypes. Because the facts of the harassment showed that the plaintiff had been harassed about his non-macho mannerisms and lifestyle even before his sexual orientation became public knowledge, he could show that his discrimination was related to the fact that he did not conform to societal stereotypes about how a “real” man is supposed to act. Title VII has for some years now prohibited discrimination against women who did not fit societal stereotypes of “ladies.”
First Amendment Claims
In Pedreira, the plaintiffs also brought a taxpayer suit challenging state support of a non-profit with a religious mission on the grounds that it violated the Establishment Clause of the First Amendment. “In their amended complaint, they refer to the Kentucky statutes authorizing the funding of services such as KBHC. However, nowhere in the record before the district court did the plaintiffs explain what the nexus is between their suit and a federal legislative action. The district court found that the plaintiffs’ allegations were more akin to those in Hein, which raised a general Establishment Clause challenge to federal agencies’ use of federal money to promote the President’s faith-based initiatives.” In the end, the Court determined that the plaintiffs lacked standing as federal taxpayers, but not as state taxpayers.
“As with federal taxpayer standing, the plaintiffs must demonstrate “a good-faith pocketbook” injury to demonstrate state taxpayer standing . . . . The plaintiffs point to the alleged $100 million received by KBHC from Kentucky as the requisite “pocketbook” injury . . . . the Kentucky legislature also appropriated sums of money specifically to KBHC. 2005 Ky. Laws Ch. 173 (HB 267) (H)(10)(5), available at http://www.lrc.ky.gov/record/05RS/HB267.htm. Unlike in the federal taxpayer analysis,the plaintiffs have alleged a “concrete and particularized” injury.”
In addition, “the plaintiffs have sufficiently demonstrated a link between the challenged legislative actions and the alleged constitutional violations, namely that Kentucky’s statutory funding for neglected children in private childcare facilities knowingly and impermissibly funds a religious organization. As discussed above, the plaintiffs have pointed to Kentucky statutory authority, legislative citations acknowledging KBHC’s participation, and specific legislative appropriations to KBHC. Through these specifications, the plaintiffs have demonstrated a nexus between Kentucky and its allegedly impermissible funding of a pervasively sectarian institution.”
Insomniacs can read the full court decisions at http://www.ca6.uscourts.gov/opinions.pdf/09a0316p-06.pdf and http://www.ca3.uscourts.gov/opinarch/073997p.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.
Title VII Claims
The Pedreira plaintiff was terminated from her position with the non-profit children’s home “because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values.” After her termination, the employer announced a policy of refusing to employ any homosexuals. She brought a claim under the Kentucky Civil Rights Act, which was analyzed as a Title VII claim. The Court, however, found that she failed to state a claim for relief: “Pedreira does not allege that her sexual orientation is premised on her religious beliefs or lack thereof, nor does she state whether she accepts or rejects Baptist beliefs. While there may be factual situations in which an employer equates an employee’s sexuality with her religious beliefs or lack thereof, in this case, Pedreira has “failed to state a claim upon which relief could be granted.” See also Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (Title VII does not encompass discrimination on account of sexual orientation). In short, the plaintiff did not allege that her sexual orientation was a voluntary decision akin to religious beliefs and practices. Another plaintiff brought a failure to hire claim on the grounds that she did not apply for a social worker opening because of the employer’s homophobic policy. The court surprisingly dismissed that claim on the grounds it was speculative (in that she never applied for a job) instead of on the grounds that such discrimination is not actionable under either Title VII or the KCRA. Thus, the possibility remains that the Sixth Circuit could recognize a case of sexual orientation discrimination under Title VII under a different factual situation.
The Prowell plaintiff was involuntarily laid off after he complained about workplace harassment on account of his sexual orientation. He filed suit, claiming that he was unlawfully discriminated against in violation of Title VII on account of his sex and religion. Like the Pedreira case, the Third Circuit dismissed the religion discrimination claim because his testimony showed that he was discriminated against on account of his sexual orientation, not his beliefs or the religious beliefs of others. Like the Sixth Circuit, the Third Circuit had previously determined that Title VII did not encompass discrimination on account of sexual orientation. Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir.2001).
However, the Third Circuit found that the Prowell plaintiff could pursue a sex stereotyping claim to the same extent that a woman could. The plaintiff described himself as an “effeminate man” and claimed he did not fit in with his other male co-workers because he did not conform to gender stereotypes. Because the facts of the harassment showed that the plaintiff had been harassed about his non-macho mannerisms and lifestyle even before his sexual orientation became public knowledge, he could show that his discrimination was related to the fact that he did not conform to societal stereotypes about how a “real” man is supposed to act. Title VII has for some years now prohibited discrimination against women who did not fit societal stereotypes of “ladies.”
First Amendment Claims
In Pedreira, the plaintiffs also brought a taxpayer suit challenging state support of a non-profit with a religious mission on the grounds that it violated the Establishment Clause of the First Amendment. “In their amended complaint, they refer to the Kentucky statutes authorizing the funding of services such as KBHC. However, nowhere in the record before the district court did the plaintiffs explain what the nexus is between their suit and a federal legislative action. The district court found that the plaintiffs’ allegations were more akin to those in Hein, which raised a general Establishment Clause challenge to federal agencies’ use of federal money to promote the President’s faith-based initiatives.” In the end, the Court determined that the plaintiffs lacked standing as federal taxpayers, but not as state taxpayers.
“As with federal taxpayer standing, the plaintiffs must demonstrate “a good-faith pocketbook” injury to demonstrate state taxpayer standing . . . . The plaintiffs point to the alleged $100 million received by KBHC from Kentucky as the requisite “pocketbook” injury . . . . the Kentucky legislature also appropriated sums of money specifically to KBHC. 2005 Ky. Laws Ch. 173 (HB 267) (H)(10)(5), available at http://www.lrc.ky.gov/record/05RS/HB267.htm. Unlike in the federal taxpayer analysis,the plaintiffs have alleged a “concrete and particularized” injury.”
In addition, “the plaintiffs have sufficiently demonstrated a link between the challenged legislative actions and the alleged constitutional violations, namely that Kentucky’s statutory funding for neglected children in private childcare facilities knowingly and impermissibly funds a religious organization. As discussed above, the plaintiffs have pointed to Kentucky statutory authority, legislative citations acknowledging KBHC’s participation, and specific legislative appropriations to KBHC. Through these specifications, the plaintiffs have demonstrated a nexus between Kentucky and its allegedly impermissible funding of a pervasively sectarian institution.”
Insomniacs can read the full court decisions at http://www.ca6.uscourts.gov/opinions.pdf/09a0316p-06.pdf and http://www.ca3.uscourts.gov/opinarch/073997p.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.
Wednesday, September 9, 2009
Sixth Circuit Revives Claim of Sex Discrimination in Hiring When HR Director Could Not Get Her Story Straight.
Today, a divided Sixth Circuit Court of Appeals reversed the entry of summary judgment in favor of an employer on a claim that the company had refused to hire a female applicant on account of her sex. Peck v. Elyria Foundry, No. 08-3301 (6th Cir. 9/9/09). In doing so, the Court found that a jury could determine whether the employer’s HR Director was being truthful when she testified in her deposition that she hired less qualified male applicants because she thought the female applicant only wanted certain jobs and/or because the employer did not have adequate “facilities” for female employees and/or because the plaintiff had a poor attendance record and/or because her attorney sent an inflammatory letter and/or because of a physical impairment. The Court concluded that the inconsistencies in the HR Director’s explanation created sufficient pretext to warrant the case being submitted to a jury to determine who was the most credible.
In the decision, the Court relates that the plaintiff and her boyfriend both applied for jobs at the defendant employer. The plaintiff had relevant experience which she listed on her application, but her boyfriend did not. He indicated that he would take any job, but she listed two possible positions – as a tow motor operator and a grinder -- and a “?.” She also put “?” when asked about her desired salary. Her boyfriend was hired but she was not. Her many phone calls inquiring about the status of her application were never returned. When she questioned the HR Director, she was told that her application was still being considered and she would be called in a few days. She was not.
The plaintiff retained an attorney, who wrote the company and alleged sex discrimination. When the company failed to respond, she filed a Charge of Discrimination with the EEOC and then filed suit for sex discrimination.
The district court concluded that the plaintiff could not prove a prima facie case because she only applied for tow operator and grinder positions and there were no tow operators hired and she was physically precluded from grinding However, the Court of Appeals concluded that there was a factual dispute because her application indicated that she would take any job when she put “?” next to those to job titles. Such an application put the employer on reasonable notice that she would take something other than the two listed jobs, particularly when she put the same mark next to desired salary.
The Court also found she was qualified for the jobs because she had five years of relevant prior experience, unlike fourteen of the men hired since the time of her application. In any event, the HR Director conceded that the plaintiff appeared to be qualified from the face of her job application.
The Court also found possible pretext in the HR Director’s explanation for why the plaintiff was not hired. In the affidavit filed with the motion for summary judgment, the HR Director indicated that the job application was limited to the two listed positions. However, in her deposition she testified that the employer’s “facilities” for women needed improvement and she delayed plaintiff’s application while waiting for these improvements. (Surprisingly, the plaintiff did not argue that this was discriminatory under Title VII even though Title VII prohibits discriminatory facilities.) Still later, the HR Director testified that a current employee and former co-worker of the plaintiff had relayed that the plaintiff was an unreliable employee because of unreliable transportation and childcare. Finally, her application was set aside after receiving letter from the plaintiff’s attorney which was full of “insults and lies.” (Again, it was surprising that the plaintiff did not bring a retaliation claim for a refusal to hire her after the employer had been accused of sex discrimination.).
The Court majority also found it problematic that the HR Director claimed to keep the plaintiff’s application open – despite receiving negative reports from a former co-worker – until the inflammatory letter received by the plaintiff’s attorney. During the time period between when plaintiff applied and her attorney wrote the company, the employer hired 22 men – many of whom had no relevant prior experience for their new job.
In contrast, the dissent argued that the HR Director’s testimony was not inconsistent. Although the HR Director “honestly believed” that the plaintiff only applied for two positions, she held her application open in case one of those positions ultimately became available. Nonetheless, the majority found this to be irrelevant because the plaintiff presented evidence that the employer sometimes hired men for positions different from the jobs listed on their applications. In other words, the employer was limiting the female applicant to the jobs listed on her application, but was not similarly limiting male applicants.
Finally, the Court found no evidence that any of the men hired instead of the plaintiff were more qualified than her or that her medical condition would have disqualified her from non-grinder positions.
Therefore, the case was remanded for the district court to hold a trial on the plaintiff’s sex discrimination claim. (The plaintiff’s request to amend her complaint to add a public policy claim based on the retaliation she suffered from her attorney writing a letter was denied on the grounds that Ohio only recognizes public policy torts in wrongful discharges, not in failure to hire disputes).
Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0634n-06.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.
In the decision, the Court relates that the plaintiff and her boyfriend both applied for jobs at the defendant employer. The plaintiff had relevant experience which she listed on her application, but her boyfriend did not. He indicated that he would take any job, but she listed two possible positions – as a tow motor operator and a grinder -- and a “?.” She also put “?” when asked about her desired salary. Her boyfriend was hired but she was not. Her many phone calls inquiring about the status of her application were never returned. When she questioned the HR Director, she was told that her application was still being considered and she would be called in a few days. She was not.
The plaintiff retained an attorney, who wrote the company and alleged sex discrimination. When the company failed to respond, she filed a Charge of Discrimination with the EEOC and then filed suit for sex discrimination.
The district court concluded that the plaintiff could not prove a prima facie case because she only applied for tow operator and grinder positions and there were no tow operators hired and she was physically precluded from grinding However, the Court of Appeals concluded that there was a factual dispute because her application indicated that she would take any job when she put “?” next to those to job titles. Such an application put the employer on reasonable notice that she would take something other than the two listed jobs, particularly when she put the same mark next to desired salary.
The Court also found she was qualified for the jobs because she had five years of relevant prior experience, unlike fourteen of the men hired since the time of her application. In any event, the HR Director conceded that the plaintiff appeared to be qualified from the face of her job application.
The Court also found possible pretext in the HR Director’s explanation for why the plaintiff was not hired. In the affidavit filed with the motion for summary judgment, the HR Director indicated that the job application was limited to the two listed positions. However, in her deposition she testified that the employer’s “facilities” for women needed improvement and she delayed plaintiff’s application while waiting for these improvements. (Surprisingly, the plaintiff did not argue that this was discriminatory under Title VII even though Title VII prohibits discriminatory facilities.) Still later, the HR Director testified that a current employee and former co-worker of the plaintiff had relayed that the plaintiff was an unreliable employee because of unreliable transportation and childcare. Finally, her application was set aside after receiving letter from the plaintiff’s attorney which was full of “insults and lies.” (Again, it was surprising that the plaintiff did not bring a retaliation claim for a refusal to hire her after the employer had been accused of sex discrimination.).
Employers may have more than one reason for passing on a job candidate. And considered individually, any of [the employer’s] reasons for not hiring [the plaintiff] could explain its hiring decision. The problem here, however, is that some of its reasons are inconsistent at best, if not outright contradictory, and are thus “so intertwined” that the credibility of any of them is in doubt. . . . Moreover, “an employer’s changing rationale for making an adverse employment decision can be evidence of pretext." Here, it would be a logical feat for a jury to believe both [the HR Director’s] testimony that she did not hire [the plaintiff] because she thought [the plaintiff] did not apply for more than two positions and that she did consider her more broadly, yet passed because she received damning input from a former coworker, and because the women’s bathrooms were not up to par. A contradiction by the same employee in the same deposition raises serious credibility concerns; either [the HR Director] considered [the plaintiff] for more than two positions or she did not.
The Court majority also found it problematic that the HR Director claimed to keep the plaintiff’s application open – despite receiving negative reports from a former co-worker – until the inflammatory letter received by the plaintiff’s attorney. During the time period between when plaintiff applied and her attorney wrote the company, the employer hired 22 men – many of whom had no relevant prior experience for their new job.
In contrast, the dissent argued that the HR Director’s testimony was not inconsistent. Although the HR Director “honestly believed” that the plaintiff only applied for two positions, she held her application open in case one of those positions ultimately became available. Nonetheless, the majority found this to be irrelevant because the plaintiff presented evidence that the employer sometimes hired men for positions different from the jobs listed on their applications. In other words, the employer was limiting the female applicant to the jobs listed on her application, but was not similarly limiting male applicants.
Our conclusion that these inconsistencies suggest pretext does not mean that a company is precluded from pursuing alternative lines of defense to convince a jury that its decision was not motivated by sex discrimination. But at the summary judgment stage, a plaintiff may meet her burden of demonstrating pretext by showing, in addition to proffered evidence, that an employer’s reasons are so incoherent, weak, inconsistent, or contradictory that a rational jury could conclude the reasons were not believable.
Finally, the Court found no evidence that any of the men hired instead of the plaintiff were more qualified than her or that her medical condition would have disqualified her from non-grinder positions.
Therefore, the case was remanded for the district court to hold a trial on the plaintiff’s sex discrimination claim. (The plaintiff’s request to amend her complaint to add a public policy claim based on the retaliation she suffered from her attorney writing a letter was denied on the grounds that Ohio only recognizes public policy torts in wrongful discharges, not in failure to hire disputes).
Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0634n-06.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.
Thursday, September 3, 2009
EEOC: Taco Bell to Pay $350K to Two Teenaged Employees Who Were Raped by Store Manager at Work.
On Friday, the EEOC announced that it had settled a sexual harassment lawsuit brought against Taco Bell alleging that two minor employees had been raped by a store manager in Memphis. One of the girls was raped on her first day of work and another five months earlier. The manager was ultimately criminally charged, pled guilty to the rapes in 2009 and was sentenced to two eight-year terms as well as permanent designation as a sex offender under Tennessee law. The EEOC’s suit (Civil Action No. 2:07-cv-02579, filed in the U.S. District Court for the Western District of Tennessee at Memphis) alleged violation of Title VII’s prohibition against sexual harassment.
Under the terms of the consent decree, “ Taco Bell will pay a total of $350,000” and “will maintain a written policy against sexual harassment and will widely distribute it to all employees” in that region “within 30 days of the entry of the decree. The company will also conduct anti-discrimination training and posting of anti-discrimination notices.”
Insomniacs can read the full press release at http://www.eeoc.gov/press/8-28-09a.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. 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.
Under the terms of the consent decree, “ Taco Bell will pay a total of $350,000” and “will maintain a written policy against sexual harassment and will widely distribute it to all employees” in that region “within 30 days of the entry of the decree. The company will also conduct anti-discrimination training and posting of anti-discrimination notices.”
Insomniacs can read the full press release at http://www.eeoc.gov/press/8-28-09a.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. 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.
Friday, August 28, 2009
Sixth Circuit: School Violated FMLA By Placing Employee on Involuntary, Unpaid Leave in Part Because FMLA Leave
On Wednesday, the Sixth Circuit reversed summary judgment entered in favor of an Ohio school district employer on an employee’s FMLA claim. In Hunter v. Valley View Local Schools, No. 08-4109 (6th Cir. 8/26/09), the School District placed the employee on an involuntary and unpaid leave of absence for two years when she attempted to return to work with significant medical restrictions following an FMLA medical leave of absence. In doing so, the School’s superintendant testified that the decision was motivated both by the plaintiff’s excessive absenteeism (which consisted almost entirely of her FMLA medical leave of absence) and medical restrictions placed by the employee’s physician. The plaintiff brought suit in state court alleging violations of the FMLA and Ohio’s disability discrimination statute. The district court in Dayton found that the employer would have treated the plaintiff the same regardless of her FMLA leave, granted summary judgment to the school on the FMLA claim and refused to exercise pendent jurisdiction over the state law disability discrimination claims. The Sixth Circuit reversed on the grounds that that the school employer illegally discriminated against the plaintiff in violation of the FMLA by placing her on involuntary and unpaid leave in part because of her protected use of the FMLA.
As noted by the Sixth Circuit: “An employer may not discriminate or retaliate against an employee for taking FMLA leave. 29 U.S.C. § 2615(a)(2). In particular, an employer is prohibited from “us[ing] the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. § 825.220(c) . . . . Employers who violate the FMLA are liable to the employee for damages. 29 U.S.C. § 2617(a)(1) . . . There are two theories of recovery under the FMLA: an interference (or entitlement) theory and a retaliation (or discrimination) theory.” Notwithstanding the Supreme Court’s recent decision in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2348-49 (2009), the Court determined that Title VII’s burden-shifting approached remained applicable to mixed-motive FMLA retaliation claims.
Further, the Court recognized that FMLA regulations prohibit employers from taking FMLA leave into account when making adverse employment decisions: “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies.29 C.F.R. § 825.220(c) (emphasis added). . . . . The phrase ‘a negative factor’ envisions that the challenged employment decision might also rest on other, permissible factors.”
The school superintendent’s testimony that she considered the plaintiff’s FMLA absences as a negative factor in placing her on an involuntary and unpaid leave of absence was found to constitute direct evidence of impermissible motive because employers are not permitted under FMLA regulations to use FMLA leave as a negative factor in employment decisions. Further, when the superintendent denied that she would have placed the plaintiff on unpaid leave solely because of her medical restrictions – which might have created an issue of disability discrimination and unlawful failure to accommodate -- the court had no difficulty in finding the illegal consideration of FMLA leave was a motivating factor.
Insomniacs may read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0311p-06.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.
As noted by the Sixth Circuit: “An employer may not discriminate or retaliate against an employee for taking FMLA leave. 29 U.S.C. § 2615(a)(2). In particular, an employer is prohibited from “us[ing] the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. § 825.220(c) . . . . Employers who violate the FMLA are liable to the employee for damages. 29 U.S.C. § 2617(a)(1) . . . There are two theories of recovery under the FMLA: an interference (or entitlement) theory and a retaliation (or discrimination) theory.” Notwithstanding the Supreme Court’s recent decision in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2348-49 (2009), the Court determined that Title VII’s burden-shifting approached remained applicable to mixed-motive FMLA retaliation claims.
Further, the Court recognized that FMLA regulations prohibit employers from taking FMLA leave into account when making adverse employment decisions: “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies.29 C.F.R. § 825.220(c) (emphasis added). . . . . The phrase ‘a negative factor’ envisions that the challenged employment decision might also rest on other, permissible factors.”
The school superintendent’s testimony that she considered the plaintiff’s FMLA absences as a negative factor in placing her on an involuntary and unpaid leave of absence was found to constitute direct evidence of impermissible motive because employers are not permitted under FMLA regulations to use FMLA leave as a negative factor in employment decisions. Further, when the superintendent denied that she would have placed the plaintiff on unpaid leave solely because of her medical restrictions – which might have created an issue of disability discrimination and unlawful failure to accommodate -- the court had no difficulty in finding the illegal consideration of FMLA leave was a motivating factor.
Insomniacs may read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0311p-06.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.
Thursday, August 27, 2009
Lactation Discrimination in Ohio: Toto: We’re Not In Kansas Anymore.
This morning, the Ohio Supreme Court issued a decision which had initially promised to decide whether Ohio law prohibited an employer from discriminating against an employee who was lactating. However, the per curiam decision (i.e., non-binding authority) remarkably avoided that issue altogether and, instead, affirmed an employer’s right to fire an employee for insubordination when the employee admittedly took unauthorized breaks without the employer’s knowledge or consent. Allen v. Totes/Isotoner Corp., Slip Opinion No. 2009-Ohio-4231. The Court’s action might not have raised an eyebrow if it were not for the facts of the case and that many people in Ohio have watched the oral argument previously broadcast on the Ohio Channel (which is part of PBS).
By way of background, after returning to work following her maternity leave, the plaintiff requested her supervisor for breaks to pump her breast milk to feed her five-month old infant. The employer apparently told her that she could do so during her regular lunch break. Employees were otherwise forbidden to take breaks unless they needed to urinate, etc. The plaintiff decided that her breasts needed pumped more often or later in the morning than her regular break schedule permitted and so, without her supervisor’s knowledge or consent, she began taking an extra break later in the morning to use the breast pump. The supervisor found out and fired her for failing to follow directions. There was some factual dispute about whether the plaintiff ever notified the employer that its prior arrangement was unsuitable before she added or rescheduled her own rest break.
When the plaintiff brought claims for wrongful discharge under the Ohio Pregnancy Discrimination Act, the trial court granted summary judgment to the employer on the grounds that lactation five months after child birth is not related to pregnancy because lactation would have stopped in the natural course of events if the employee had decided not to breast feed her baby. (In his mind, the fact that she was lactating five months later was related to her decision to breast feed and not to her pregnancy). This was important because pregnancy is covered by statute and breastfeeding is not. The Court of Appeals affirmed, but only on the grounds that she did not satisfy her prima facie case and an employer may legitimately fire an employee for taking an unauthorized rest break.
As mentioned, a majority of the Supreme Court could not agree on a basis to affirm or reverse the judgment. While a majority could agree on affirming the judgment, they could not agree why. Most of the majority apparently agreed that it was non-discriminatory to fire an employee for taking unauthorized rest breaks. However, they could not agree whether the act of using a breast pump put the plaintiff into a protected status under the Pregnancy Discrimination Act and refused to address the issue at all on the disingenuous rationale that it would constitute an advisory opinion.
Surprisingly, both Chief Justice Moyer and Justice O’Connor agreed that lactation should be a covered activity under the Pregnancy Discrimination Act. As Justice O’Connor noted in her opinion, the relevant Ohio statute includes as sex discrimination any action taken “because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes * * *.” R.C. 4112.01(B).” The oral argument in this case spent most of the debate focusing on this language. Finding no legal support for her position in any federal court decision on the issue (even though she acknowledged that the Ohio statutory language quotes the federal Pregnancy Discrimination Act verbatim) and even though a number of states have passed specific breastfeeding protection statutes to address the lapse, she decided it was beyond dispute that Ohio’s statute covered breastfeeding.
However, both Moyer and O’Conner felt that the plaintiff was asking for preferential treatment by taking an extra break to pump breast milk, and thus, could be fired like any other employee for taking an unauthorized rest break. They do not believe that Ohio law requires employers to give breastfeeding/breastpump breaks to employees. Unlike the ADA, the federal PDA does not require preferential treatment or reasonable accommodation for pregnant women. (Ohio law, on the other hand, mandates a reasonable maternity leave even when an employer does not provide any medial leave). On a strict comparative basis analysis, the plaintiff did not show that she was fired for engaging in the same conduct as others because no one else was taking an extra fifteen-minute break each day to pump breast mile (or any other reason). While I agree that an employee who takes surreptitious breaks or violates her supervisor’s direct order has been insubordinate, I am not certain that this issue is so simple since there seemed to be a factual dispute about whether the employee was treated differently on account of her breastfeeding break or whether Ohio law requires some sort of reasonable accommodation (assuming, of course, that lactating is covered by the PDA, which I do not think it is).
Justice Pfeifer agreed that the plaintiff’s lactating was covered by the Pregnancy Discrimination Act, but felt that the plaintiff was discriminated against because she was fired for taking a rest break for the purpose of pumping breast milk, but admittedly would not have been fired if she had taken the same rest break in order to urinate. While this rationale has its benefits, is an employer required to treat breastfeeding the same as urination? If so, would employers then have an incentive to ban urination breaks? Is that a world in which we want to live? Are there time limits on either (how long you have to urinate vs pump breast milk)? Is it relevant that she may never have told the employer that its prior arrangement was insufficient? Does the employee get to decide for herself when she gets to take a break and how often or does she have to work that out first with her employer?
In any event, Isotoner now finds itself in the unenviable position of manufacturing a product (i.e., fashion gloves, slippers and umbrellas) to women who it will not permit to take a daily fifteen minute break to pump breast milk for suckling infants. Ohio employers are left unsure whether a future court decision will address this question or whether the Ohio legislature will eventually take it up. For now, there is no law in Ohio giving women the right to take breaks to pump breast milk for their infants.
Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-4231.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.
By way of background, after returning to work following her maternity leave, the plaintiff requested her supervisor for breaks to pump her breast milk to feed her five-month old infant. The employer apparently told her that she could do so during her regular lunch break. Employees were otherwise forbidden to take breaks unless they needed to urinate, etc. The plaintiff decided that her breasts needed pumped more often or later in the morning than her regular break schedule permitted and so, without her supervisor’s knowledge or consent, she began taking an extra break later in the morning to use the breast pump. The supervisor found out and fired her for failing to follow directions. There was some factual dispute about whether the plaintiff ever notified the employer that its prior arrangement was unsuitable before she added or rescheduled her own rest break.
When the plaintiff brought claims for wrongful discharge under the Ohio Pregnancy Discrimination Act, the trial court granted summary judgment to the employer on the grounds that lactation five months after child birth is not related to pregnancy because lactation would have stopped in the natural course of events if the employee had decided not to breast feed her baby. (In his mind, the fact that she was lactating five months later was related to her decision to breast feed and not to her pregnancy). This was important because pregnancy is covered by statute and breastfeeding is not. The Court of Appeals affirmed, but only on the grounds that she did not satisfy her prima facie case and an employer may legitimately fire an employee for taking an unauthorized rest break.
As mentioned, a majority of the Supreme Court could not agree on a basis to affirm or reverse the judgment. While a majority could agree on affirming the judgment, they could not agree why. Most of the majority apparently agreed that it was non-discriminatory to fire an employee for taking unauthorized rest breaks. However, they could not agree whether the act of using a breast pump put the plaintiff into a protected status under the Pregnancy Discrimination Act and refused to address the issue at all on the disingenuous rationale that it would constitute an advisory opinion.
Surprisingly, both Chief Justice Moyer and Justice O’Connor agreed that lactation should be a covered activity under the Pregnancy Discrimination Act. As Justice O’Connor noted in her opinion, the relevant Ohio statute includes as sex discrimination any action taken “because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes * * *.” R.C. 4112.01(B).” The oral argument in this case spent most of the debate focusing on this language. Finding no legal support for her position in any federal court decision on the issue (even though she acknowledged that the Ohio statutory language quotes the federal Pregnancy Discrimination Act verbatim) and even though a number of states have passed specific breastfeeding protection statutes to address the lapse, she decided it was beyond dispute that Ohio’s statute covered breastfeeding.
However, both Moyer and O’Conner felt that the plaintiff was asking for preferential treatment by taking an extra break to pump breast milk, and thus, could be fired like any other employee for taking an unauthorized rest break. They do not believe that Ohio law requires employers to give breastfeeding/breastpump breaks to employees. Unlike the ADA, the federal PDA does not require preferential treatment or reasonable accommodation for pregnant women. (Ohio law, on the other hand, mandates a reasonable maternity leave even when an employer does not provide any medial leave). On a strict comparative basis analysis, the plaintiff did not show that she was fired for engaging in the same conduct as others because no one else was taking an extra fifteen-minute break each day to pump breast mile (or any other reason). While I agree that an employee who takes surreptitious breaks or violates her supervisor’s direct order has been insubordinate, I am not certain that this issue is so simple since there seemed to be a factual dispute about whether the employee was treated differently on account of her breastfeeding break or whether Ohio law requires some sort of reasonable accommodation (assuming, of course, that lactating is covered by the PDA, which I do not think it is).
Justice Pfeifer agreed that the plaintiff’s lactating was covered by the Pregnancy Discrimination Act, but felt that the plaintiff was discriminated against because she was fired for taking a rest break for the purpose of pumping breast milk, but admittedly would not have been fired if she had taken the same rest break in order to urinate. While this rationale has its benefits, is an employer required to treat breastfeeding the same as urination? If so, would employers then have an incentive to ban urination breaks? Is that a world in which we want to live? Are there time limits on either (how long you have to urinate vs pump breast milk)? Is it relevant that she may never have told the employer that its prior arrangement was insufficient? Does the employee get to decide for herself when she gets to take a break and how often or does she have to work that out first with her employer?
In any event, Isotoner now finds itself in the unenviable position of manufacturing a product (i.e., fashion gloves, slippers and umbrellas) to women who it will not permit to take a daily fifteen minute break to pump breast milk for suckling infants. Ohio employers are left unsure whether a future court decision will address this question or whether the Ohio legislature will eventually take it up. For now, there is no law in Ohio giving women the right to take breaks to pump breast milk for their infants.
Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-4231.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.
Tuesday, August 4, 2009
EEOC Obtains $90K Consent Judgment in Federal Court In Columbus Over ADA Violations When Employer Required Employees to be 100% Fit.
Last week, the EEOC announced that “AVI Foodsystems, Inc. (AVI) will pay more than $90,000 and offer jobs to discrimination victims to settle a class disability discrimination suit brought” by the EEOC in federal court in Columbus, Ohio. “The EEOC charged in its suit (Case no. 2:09-cv-00656-JDH-MRA . . . . that AVI violated federal law by failing to allow employees with disabilities to return to work without a full-duty, no-restriction doctor’s release. The EEOC asserted that this policy violated the Americans With Disabilities Act (ADA). The agency said disabled employees who had been on leave and are able to return to work with some physical restrictions, but are still able to perform their jobs, should be allowed to do so. The policy adversely affected more than 80 AVI employees in several states, including Ohio, New York, Pennsylvania, Michigan, Illinois, Kentucky, and West Virginia.”
According to the EEOC, “[t]he consent decree settling the suit provides that AVI will offer jobs to discrimination victims named in the decree, make payments to individuals who are not provided jobs, comply with the ADA, and train managers on the provisions of the ADA. According to company information, Warren, Ohio-based AVI, the largest independently owned and operated food service in the United States, maintains vending and dining services in commercial locations such as factories, universities, and health-care facilities.”
Insomniacs can read the full EEOC press release at http://
According to the EEOC, “[t]he consent decree settling the suit provides that AVI will offer jobs to discrimination victims named in the decree, make payments to individuals who are not provided jobs, comply with the ADA, and train managers on the provisions of the ADA. According to company information, Warren, Ohio-based AVI, the largest independently owned and operated food service in the United States, maintains vending and dining services in commercial locations such as factories, universities, and health-care facilities.”
Insomniacs can read the full EEOC press release at http://
Tuesday, July 14, 2009
Sixth Circuit: Employer’s Resentment of Work Employee Missed Due to Military Service Supported Imposing Wrongful Discharge Liability Under USERRA.
Earlier this month, the Sixth Circuit affirmed a bench trial verdict in a wrongful discharge case brought under USERRA by an employee who had been fired in part because of insubordination, but which the trial court found was motivated mostly by the employee’s missing work because of his national guard service. The Court, however, remanded the case for reconsideration of the $352,846 of damages imposed by the trial judge. Hance v. Norfolk Southern Railway Co., No. 07-5475 (6th Cir. 7/1/09). Although the employee’s alleged insubordination had been independently investigated and substantiated in a union arbitration, the Court believed there was sufficient evidence that the employer would not have terminated the employee for the alleged insubordination if his supervisor and manager had not both expressed resentment of the amount of work he missed because of his national guard service.
As stated by the Court:
The Court also refused to accord res judicata status to the labor arbitration which upheld the plaintiff’s discharge for insubordination. Although courts “accord broad deference” to arbitration decisions, the Court has
Insomniacs may read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/09a0224p-06.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.
As stated by the Court:
On appeal, [the employer] argues that the district court erred in attributing antimilitary animus to [the employer]and in concluding that [the employer] failed to prove that a nondiscriminatory reason actually motivated the discharge. Regarding the attribution of anti-military animus to the company, [the employer] argues that [the plaintiff’s] immediate supervisor, lacked the authority to investigate or terminate [the plaintiff] and, therefore, that [the supervisor’s] anti-military animus cannot be imputed to the company. But in addition to evidence of [the supervisor’s] hostile attitude, testimony by union representative . . . indicated that Assistant Superintendent Bryson had also expressed concern about [the plaintiff’s] taking “too much time off for the military.” Significantly, Bryson was responsible for the decision to dismiss [the plaintiff]. This evidence of anti-military animus from a decisionmaker, combined with the close temporal relationship between [the plaintiff’s] two-week leave for military service and his discharge was legally sufficient to support the district court’s finding that [the plaintiff] was discharged in violation of USERRA.
The Court also refused to accord res judicata status to the labor arbitration which upheld the plaintiff’s discharge for insubordination. Although courts “accord broad deference” to arbitration decisions, the Court has
previously recognized as an exception to this rule that district courts are not bound by arbitration decisions in employment discrimination cases under Title VII or 42 U.S.C. § 1981. . . . “a federal court may, in the course of trying a Title VII or section 1981 action, reconsider evidence rejected by an arbitrator in previous proceedings.” Id. at 142. In the context of an employment discrimination case, deference is due to an arbitrator’s interpretation of provisions in a collective bargaining agreement or other employment contract, but Becton cautions that an arbitrator’s decision regarding “just cause” for termination is not equivalent to the inquiry and burden-shifting framework mandated by Congress in an employment discrimination case. See id. Hence, a federal court should not consider an arbitrator’s decision binding in a discrimination suit, because to do so would “unnecessarily limit[] the plaintiff’s opportunity to vindicate his statutory and constitutional rights.” Id.
In this case, the district court considered the arbitrator’s decision, the factual dispute over whether Hance’s reporting instructions were clear, and the evidence of anti-military animus by Hance’s superiors. Because the district court was not required to consider the arbitrator’s determination as conclusive, that determination could not prevent the court from holding – correctly, we conclude – that Norfolk Southern had failed to demonstrate a valid, nondiscriminatory basis for Hance’s dismissal, as measured by the standard required under section 4311(c)(1).
Insomniacs may read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/09a0224p-06.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.
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