Wednesday, October 19, 2016

11th Circuit Holds Job Applicants Cannot Sue For Age Discrimination Under the ADEA

In a decision that has sent shockwaves to plaintiff's attorneys in the 11th Circuit and beyond, a recent decision by the Court of Appeals for the Eleventh Circuit has held that job applicants cannot sue for disparate impact under the Age Discrimination in Employment Act ("ADEA") based upon a plain reading of the text.  The decision itself is 76 pages and went deep into the tenets of statutory construction and is beyond the scope of a blog article.  However, Harvard University law professor Noah Feldman wrote about the decision in a Bloomberg article headlined, “Subtle Age Discrimination Gets a Court’s Blessing” and sums up the decision and its effect very well.

The 11th Circuit covers Alabama, Florida and Georgia, not Wisconsin as we reside in the 7th Circuit.

Tuesday, October 18, 2016

8th Circuit: Trucking Company's Requirement That Drivers with High BMI Submit to Sleep Study Does Not Violate ADA

The Court of Appeals for the Eighth Circuit recently held that a trucking company who subjected one of its truck drivers to a sleep study to see if he had obstructive sleep apnea because he had a body mass index ("BMI") over 35, did not violate the Americans with Disabilities Act ("ADA"), nor did it discriminate against the plaintiff, Robert J. Parker ("Parker"), when he was terminated for refusing to take a sleep study.


The defendant, Crete Carrier Corporation ("Crete") hired Parker as an over-the-road truck driver in 2006.  As a driver of a commercial motor vehicle for a motor carrier, Parker was bound by regulations issued by the USDOT's Federal Motor Carrier Safety Administration.  In 2010, Crete began a sleep apnea program based primarily on recommendations from two advisory committees.  The program required drivers at risk for obstructive sleep apnea to undergo in-lab sleep studies.  Crete required an in-lab sleep study if either (1) the driver's BMI was 35 or above, or (2) the driver's physician recommended a sleep study.  At parker's most recent DOT physical, his BMI was over 35.

In July 2013, Parker visited a certified physician not affiliated with Crete who wrote a prescription stating, in whole, "I do not feel it is medically necessary for Robert to have a sleep study."  Parker then refused to participate in a sleep study and then Crete took Parker out of service.  Parker then sued Crete alleging it required a medical examination violating 42 U.S.C. section 12112(d)(4)(A) and discriminated against him because it regarded him as having a disability, violating 42 U.S.C. section 12112(a).

                                 CRETE'S SLEEP STUDY DID NOT VIOLATE THE ADA

The ADA prohibits employers from "requiring a medical examination ... unless such examination ... is shown to be job-related and consistent with business necessity."  When an employer requires a medical exam of its employees, the employer has the burden of showing that the exam is job-related and that "the asserted 'business necessity' is vital to the business and the request for a medical examination or inquiry is no broader or more intrusive than necessary."  "[C]ourts will readily find a business necessity if an employer can demonstrate ... a medical examination or inquiry is necessary to determine ... whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee's capacity to perform his or her duties."  "The examination or inquiry need not be the only way to achieve a business necessity, but it must be a reasonably effective method to achieve the employer's goals." 

Parker argued that Crete failed to consider his individual characteristics before mandating the sleep study.  However, the Court held that the text of the ADA (section 12112(d)(4)(A)) does not require this, and, to the contrary, the ADA permits employers to require a CLASS of employees to get medical exams.  When an employer does this, they meet their burden by showing a "reasonable basis for concluding" that the class poses a genuine safety risk and the exam requirement allows the employer to decrease that risk effectively.  Crete met this burden as its required class--drivers with BMIs of 35 or above--had to submit to an in-lab sleep study, a medical exam. 

The Court found that, by their undisputed facts, the sleep study requirement is job-related because it deals with a condition that impairs drivers' abilities to operate their vehicles and it is consistent with business necessity because it is necessary to determine whether an individual has obstructive sleep apnea, a condition that poses a public safety hazard by increasing the risk of motor vehicle accidents.  Furthermore, the Court held Crete had reasons to suspect that Parker had sleep apnea because of his BMI being over 35.


The Court also found that Crete did not discriminate against Parker based upon perceived disability because of his failure to submit to a lawful sleep study for the reasons previously mentioned, which serves as a legitimate, non-discriminatory reason for his termination.

For all of these reasons, the 8th Circuit upheld the District Court's grant of summary judgment, dismissing all of Parker's claims.  The case is Robert J. Parker v. Crete Carrier Corporation, No. 16-1371 (8th Cir. Oct. 12, 2016).

Tuesday, October 11, 2016

NLRB Issues Complaint Against Postmates

The National Labor Relations Board ("NLRB") recently announced that it has issued a complaint against the popular mobile food delivery app, Postmates.  From the press release on the complaint:
The complaint alleges that Postmates violated the National Labor Relations Act by requiring employee drivers to enter into arbitration agreements as a term of employment. Additionally, the Region 13 Office found that Postmates interfered with employees Section 7 rights by prohibiting them from discussing terms and conditions of employment, including safety, with other drivers.

To remedy the unfair labor practices, the complaint seeks an order requiring that Postmates rescind the overly broad provisions in their arbitration agreements then notify the employees of this change; post a notice both electronically and at all Postmates facilities in the U.S.; and cease and desist from enforcing their unlawful policies.

Parties have until October 19th to respond to the complaint. Absent a settlement, the NLRB is scheduled to begin litigation in Chicago on January 26th.

Wednesday, September 28, 2016

7th Circuit Finds No Hostile Work Environment When Employee Finds Noose in Work Space

Undoubtedly, most, if not all, laypersons, and even most lawyers, who read the title of this post will instantly wonder how any court could not find a hostile work environment claim to have merit when a noose is discovered in the workplace by an African-American employee.  I often find myself in very difficult phone call consultations with people when I have to hear their very difficult work situations and then have to explain the law to them.  Indeed, some of these callers hang up on me as if I do not know what I am talking about and they do not want to hear it anymore.  However, as this case highlights, plaintiffs in discrimination, harassment and hostile work environment cases, have very difficult burdens to meet.


The plaintiff, Jerome Cole, worked for Northern Illinois University in the Building Services Department since 1998.  Cole is African-American and alleges that, beginning in 2009, he experienced race discrimination, retaliation, and a hostile work environment based on his race.  He sued the university's board of trustees and eleven (11) individuals under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment. 

In 2009, Cole because a sub-foreman.  In 2011, Cole claims he was promoted to foreman (the defendants disputed this, but for purposes of summary judgment, Cole's assertion was taken as true).  At all times relevant, Cole was the only African-American foreman or sub-foreman in the department.  Cole alleged that his promotion to sub-foreman marked the start of a "laundry list of events" he claims amounted to unfair and discriminatory treatment.  Cole was demoted in 2012 because the acting superintendent learned that Cole and Ruth Stone, an acting sub-foreman in the same department, had been promoted without attention to proper procedures.

In mid-November 2012, Cole discovered a hangman's noose in his work area.  Cole threw the noose away, but inexplicably, the next day he discovered the same or possibly a second noose outside the building.  A department sub-foreman, John Holmes, told Cole that he, and two others found the noose earlier in an office on the other side of Cole's new work area.  Cole called two police officers he knew for advice and was told to "keep his cool" to try to "smoke out" the perpetrator.  Cole took the noose to the university police department.  He later emailed one of the Building Services supervisors, Richards, and told her that he had discovered a noose and taken it to the police.

Richards took Cole's email to the police station and turned it in to the acting superintendent and spoke to two other university officials about the incident.  By February 2013, the university police had begun an investigation.  A detective interviewed Holmes and Cole but the detective was then told by his supervisor to stop the investigation.  The person who left the noose in the break room was never identified.  The police investigation, which ultimately proved fruitless, was the only substantial step the university took after the noose incident.  Nothing in the record suggested that the noose incident was repeated after that.

7th Circuit Finds No Hostile Work Environment

The district court granted the defendants' motion for summary judgment, rejecting the hostile work environment claim, holding that (1) most of the hostile events were not based on Cole's race; (2) Cole had not produced evidence that the noose was intentionally left for him to find; and (3) Cole had not shown a basis for employer liability.

Harassment sufficiently severe or pervasive to alter the terms and conditions of employment is actionable under Title VII as a claim of hostile work environment.  To prove a claim for hostile work environment based on race, an employee must show:  (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe or pervasive so as to alter the conditions of the employee's work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability.  Thus, as I mentioned at the outset of this article, a plaintiff has a large burden to meet and a lot of things to prove to meet their burden.

The crux of Cole's hostile work environment claim is the discovery of the noose.  The 7th Circuit found that the first and second prongs were easily met as the noose undoubtedly qualifies as "unwelcome harassment" and that given its disturbing history and status as a symbol of racial terror, the Court had no difficulty assuming that the harassment could be treated as based on race.

The Court agreed with the district court that the record in the case does not support a reasonable inference that most of the hostility Cole encountered was connected to his race as there was almost no evidence of racial animus in the record:  no hostile or ambiguous remarks, no racial slurs, nothing beyond the notable exception of the noose itself and the later secondhand report of a racist sign posted somewhere, at some unknown time by some unknown person.

With respect to the third prong, the Court held that they were hesitant to agree with the district court when they found that Cole count not produce evidence that the noose had been displayed or intentionally left for him to find.  The Court noted that a noose on display is generally likely to have more of an impact on employees than one hidden away in a co-worker's desk.  Thus, the Court decided not to lay down firm rules for when a noose in the workplace is or is not severe enough to be actionable.

No Employer Liability
The Court did find that Cole failed to present evidence to support the fourth element of his claim: a basis for employer liability.  Employers are strictly liable for supervisor harassment, but when a plaintiff claims that co-workers are responsible for the harassment, "he must show that his employer has 'been negligent either in discovering or remedying the harassment.'"  There was no evidence that a supervisor was involved in leaving the noose, so Cole had to present evidence allowing a reasonable jury to find that the university was negligent--which means in this context that it failed to take "prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring."

A prompt investigation is the first step toward a reasonable corrective action.  The undisputed facts in this case, the Court held, show that Cole notified a supervisor of the discovery of the noose, the supervisor spoke to him about it and delivered her notes of the incident to the university police.  The supervisor also reported the incident to a couple university officials.  The Court held that in these circumstances, it was reasonable for the administration, having involved the university police, to leave the investigation to them.

The Court was also careful to make it clear that they were not holding that an employer necessarily fulfills its responsibility to take appropriate corrective action if it has reported an incident to some other party--such as university police.  The question is whether the employer took corrective action "reasonably likely" to prevent harassment from recurring.

The Court did conclude by stating that, "bad 'joke' or not, the presence of a hangman's noose in the workplace is not acceptable.  But based on the circumstances here, including Cole's reaction and the fact that the Building Services Department turned the matter over to the police for investigation...we see no basis for employer liability in this case."

Plaintiff's Race Discrimination and Retaliation Claims Likewise Failed

The 7th Circuit also upheld the district court's granting of summary judgment for the defendants on Cole's disparate treatment and retaliation claims finding that Cole presented no direct or circumstantial evidence of disparate treatment based on race and that Cole had not engaged in protected activity to survive a retaliation claim.  While these claims were not the highlight of this case, it is important to note that this decision cites a recent significant case, Ortiz v. Werner Enterprises, Inc., No. 15-2574, - F.3d -, -, 2016WL 4411434, at *4 (7th Cir. Aug. 19, 2016), which is a case that held that "evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself--or whether just the 'direct' evidence does so, or the 'indirect' evidence."  I blogged about this case previously.

The case is Jerome Cole v. Board of Trustees of Northern Illinois University, et al., No. 15-2305 (7th Cir. Sept. 27. 2016).

Tuesday, September 27, 2016

EEOC Loses Another Battle Against Employer's Wellness Program

Back in January I blogged about a case out of the Western District of Wisconsin whereby the federal district court there granted summary judgment against the Equal Employment Opportunity Commission ("EEOC") in their challenge to an employer's wellness program.  Undeterred, the EEOC continued with a suit it had previously filed in the Eastern District of Wisconsin against Orion Energy Systems, Inc., also alleging their wellness program violated the Americans with Disabilities Act ("ADA") and that Orion retaliated against an employee who chose to speak out against the program and opted out of the wellness program.  The judge in the Eastern District likewise ruled against the EEOC, but on very different grounds than the Western District, potentially giving rise to the 7th Circuit finally addressing this issue.


In 2008, Orion decided to switch from a fully insured health plan to a self-insured health plan, believing that a self-insured company can reduce or at least slow the increase of its health care costs by improving the health of its employees.  Toward that end, in the spring of 2009, Orion decided on a wellness initiative including three (3) components:
(1)  employees who elected to enroll in Orion's plan would have to certify that they did not smoke or pay a surcharge ($80/month for single coverage);
(2) employees would have to exercise sixteen (16) times per month on a range of motion machine located in Orion's fitness center or pay a surcharge ($50/month); and
(3) employees would have to either complete a health risk assessment (HRA) at the beginning of the insurance year or pay the entire monthly premium equivalent amount, which was $413.43 for single coverage, $744.16 for limited family coverage, and $1,130.83 for family coverage.  Employees who completed the HRA paid no premium equivalent, but still had to pay their own deductibles, co-pays and out-of-pocket expenses.

Wendy Schobert was an employee in Orion's accounting department from 2003 until May 18, 2009 when her employment was terminated.  Before ultimately opting out of the HRA in April 2009, Schobert raised questions about the new wellness initiative, including the HRA.  She questionied whether medical information collected in the HRA would remain confidential and also questioned how the premium amount was calculated, and believed it was excessive in light of the service fee Orion was paying its third-party administrator, Auxiant.  Due to privacy concerns in which Orion was conducting the HRA's, Schobert sent a letter to Orion's HR director, stating she elected not to participate in the HRA.  Sometime around April 2009, Schobert was "talked to" by her supervisor where Schobert claims she was told to keep her opinions about the new wellness program to herself.  On May 7, 2009, Schobert sent an email challenging and criticizing Orion's then CEO's request for information on how much time employees were using to get water and coffee in light of what Schobert believed were Orion's extravagant spending decisions on a variety of programs.  A few days later, the CEO instructed the CFO to terminate Schobert.

Legal Analysis

The EEOC alleged that Orion's wellness program violated Section 12112(d)(4)(A) of the ADA, which states that a covered entity "shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature of severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."  Section 12112(d)(4)(B), however, permits employers to conduct "voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site."  The EEOC argued that the HRA was not "voluntary" under (d)(4)(B) given Orion shifted 100% of the health benefit premium to employees who opted out, and also given that Schobert was fired 3 weeks after opting out (she was the only employee to opt out).

Orion argued that its wellness program did not violate section 12112(d)(4)(A) for 3 reasons:
(1) the ADA's safe harbor provision relating to insurance applies to the challenged aspects of the wellness program;
(2) Orion did not "make inquiries" as prohibited by (d)(4)(A) where Orion received only anonymous, aggregated employee responses and results from the HRA; and
(3) the wellness program was voluntary because Orion's employees had a choice regarding whether to participate and sufficient time to make that choice.

The Safe Harbor Provision Found to Not Apply
The district court judge found that the safe harbor provision did not apply, but that the wellness program was voluntary even though Orion shifted 100% of the health premium to any employee that opted out. 

In arguing that their wellness program is protected by the safe harbor provision, Orion relied on Seff v Broward County, 691 F.3d 1221 (2012), and EEOC v. Flambeau, Inc., 131 F. Supp. 3D 849 (W.D. Wis. 2015), the case I mentioned back in January 2016 and cited above.  The EEOC argued that these cases were wrongly decided and the Eastern District noted that the EEOC had since created a new regulation on this issue, which should receive "Chevron deference," and the court agreed.  However, the court also held that even without relying on the regulation, the safe harbor provision did not apply to Orion's wellness program, declining to adopt the holdings of Seff and Flambeau, because Orion's wellness program was not use to underwrite, classify, or administer risk and, in short, Orion's wellness program was wholly independent from its insurance plan.

The Court Held Orion's Wellness Program to be Voluntary
An employer cannot conduct a medical examination or make medical inquiries of an employee, "unless such examination or inquiry is shown to be job-related and consistent with business necessity."  A medical examination or inquiry that is "voluntary" and part of a health program does not violate the ADA.  The Court found Orion's wellness program to be voluntary because, even though opting out means paying 100% of the premium cost, the court noted that "a hard choice is not the same as no choice," citing the U.S. Supreme Court case of United States v. Martinez-Salazar, 528 U.S. 304, 315 (2000).  Thus, the court granted Orion summary judgment as to the EEOC's claim that their wellness program, including the HRA, violated the ADA.

EEOC's Retaliation Claim Allowed to Move Forward
Because Orion's wellness plan was ruled lawful, they argued that the EEOC's retaliation and interference claims fail as a matter of law, because, Schobert did not therefore engage in protected activity.  The ADA's retaliation provision does not protect an employee's right to complain generally.  However, the court noted, it is well established that an employee may engage in protected activity even if the challenged practice is not actually illegal, so long as the employee has a sincere and reasonable belief that she is opposing an unlawful practice.  The court found Schobert's opting out of the HRA to be protected activity.  Therefore, given the conflicting evidence regarding who actually decided to terminate Schobert and why, and the timing of her termination, a fact question remained as to whether there was any causal link between Schobert's protected activity and her termination.

The case is EEOC v. Orion Energy Systems, Inc., September 19, 2016, Griesbach, W.

Wednesday, September 21, 2016

Illinois General Assembly Passes Legislation Limiting Use of Noncompete Agreements

A year ago popular sandwich maker Jimmy John's made news for their use of noncompete agreements for their employees, many of whom were low wage earners.  While many scoffed at these agreements, Jimmy John's fared well in court winning a defense to an injunction filed in federal court in Illinois.  In response, the Illinois General Assembly has passed legislation, the Illinois Freedom to Work Act, effective January 1, 2017, whereby an employer and a low-wage employee are prohibited from entering into any agreement that restricts the employee from performing work for another employer for a specified period of time or that restricts the employee from working in a particular geographic area or working for another employer that is similar to the low-wage employee’s work for the employer.  

A “low-wage” employee is defined as someone who earns $13 per hour or the local, state or federal minimum wage if it is greater than $13. For such workers, an agreement with restrictive covenants as described in the act will be “illegal and void.”

It'll be interesting to see if other states follow suit.  Currently, Wisconsin strongly disfavors noncompete agreements, but legislation was introduced by Republicans in the state to make them easier to enforce, though that legislation doesn't appear to have been passed.

Jury Awards $277,565 to Diabetic Fired by Dollar General After Consuming Juice to Prevent Attack

I had written about a similar case back in 2014 and am surprised to hear this current case went all the way to trial given how the other case survived summary judgment and the facts are fairly similar. 

The Equal Employment Opportunity Commission ("EEOC") announced that a federal jury has awarded their charging party $277,565 ($27,565 in back pay and $250,000 in compensatory damages) in a disability discrimination lawsuit under the Americans with Disabilities Act ("ADA") when Dollar General fired a former cashier, Linda K. Atkins, when she drank a juice, prior to purchase, in response to symptoms of a hypoglycemic attack and to protect the store, despite the fact she had informed the store previously about her condition.  As soon as the medical emergency passed, Atkins paid for the bottle of orange juice that cost $1.69 plus tax.  Later, the district manager and loss prevention manager appeared in the store to address inventory shrinkage and fired Atkins after she admitted to drinking orange juice prior to purchase.

From the article discussing the jury award:
According to EEOC's suit, a cashier at the an insulin-dependent diabetic, told her supervisor she was a diabetic and requested on several occasions that her supervisor allow her to keep juice near the register to prevent a hypoglycemic attack. At trial, the cashier testified that her supervisor told her that Dollar General did not allow employees to keep food or drink near the register. Although Dollar General had an accommodation policy that could have allowed the cashier to keep juice near the register, the employees, including management at the Maryville store, did not know about the policy.
EEOC Regional Attorney Faye A. Williams added, "This case highlights another employer who failed to train its employees on the reasonable accommodation requirements under the ADA. Dollar General represents one of the largest variety retailers in the country. Yet it failed to ensure that its employees and management staff knew about its reasonable accommodation policy. It was as if Dollar General had no policy at all. Instead of accepting responsibility for its inaction, Dollar General argued the employee did not need an accommodation. We hope this jury verdict sends a message to its employers, train your employees on the reasonable accommodation requirements under the ADA."
The case is EEOC and Linda K. Atkins v. Dolgencorp, LLC, dba Dollar General Corporation,
(Civil Action No.3:14-CV-441) in U.S. District Court for the Eastern District of Tennessee.

Wednesday, August 24, 2016

7th Circuit Allows Ethnicity Discrimination Case to Move Forward, Addresses "Indirect" vs "Direct" Methods of Proof in Employment Law Cases

In a very important case out of the Court of Appeals for the 7th Circuit, the Court reversed and remanded an ethnic discrimination case filed under 42 U.S.C. §1981 and accompanying Illinois state law, and also took time and effort to address the "direct" and "indirect" methods of proofs courts often use in employment discrimination cases.

In granting summary judgment in favor of the employer, the 7th Circuit noted that the lower district court assigned admissions of culpability and smoking-gun evidence to the "direct" method (the judge found no such evidence in the case) and assigned suspicious circumstances that might allow an inference of discrimination to the "indirect" method.  The Court noted that the lower court, "did not try to aggregate the possibilities to find an overall likelihood of discrimination."  The 7th Circuit also noted that the district court treated each method as "having its own elements and rules, even though we have held that they are just means to consider whether one fact (here, ethnicity) caused another (here, discharge) and therefore are not 'elements' of any claim."  Instead of pursuing a unified inquiry, the district court elaborated by saying the plaintiff could prevail only by coming up with "evidence that creates a 'convincing mosaic of discrimination'".  The district court concluded that the plaintiff failed to present a "convincing mosaic" under the direct method because the racial slurs did not have anything to do with the plaintiff's discharge and that there wasn't enough of a "mosaic" under the indirect method because, by removing his name from the records and changing the rates, he fell short of the employer's expectations.

In rejecting the district court's approach, the 7th Circuit noted that looking for a "convincing mosaic" detracted attention from the sole question that matters:  Whether a reasonable juror could conclude that the plaintiff would have kept his job if he had a different ethnicity, and everything else had remained the same. "Convincing mosaic" was designed as a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence and, instead, be used to take evidence as a pattern it reveals, and not as a test.  The 7th Circuit then stated that, from now on, any decision of a district court that treats this phrase as a legal requirement in an employment discrimination case is subject to summary reversal, so that the district court can evaluate the evidence under the correct standard.  That legal standard is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.  Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself--or whether just the "direct" evidence does so, or the "indirect" evidence.

With this standard of proof clarified, the Court then held that the combination of racial slurs the Plaintiff was subjected to, combined with the fact he was terminated for a practice(s) held acceptable as testified to by other brokers, a reasonable juror could infer that the Plaintiff's supervisors didn't much like Hispanics, and tried to pin heavy losses on the plaintiff to force him to resign.

The case is Ortiz v. Werner Enterprises, Inc., No.15-2574 (7th Cir.  8/19/ 2016) and is definitely a case any lawyer practicing employment law in the 7th Circuit should keep handy.

Wednesday, August 17, 2016

10th Circuit Rules Truck Driver's Termination for Abandoning Trailer in Freezing Cold was in Violation of STAA Whistleblower Provision

Alphonse Maddin was employed as a truck driver for TransAm Trucking ("TransAm").  In January 2009, Maddin was transporting cargo through Illinois when, at 11pm, he pulled over to the side of the highway because he was unable to find the TransAm-mandated fuel station and his gas gauge was below empty.  When he attempted to pull back onto the road 10 minutes later, he discovered the brakes on the trailer had locked up because of the frigid temperatures.  Maddin reported the frozen brakes to TransAm and was advised that their road assist service would be sent out to him.  While waiting for the road assist, Maddin discovered that his auxiliary power unit was not working and there was no heat in the cab of the truck.  Maddie eventually fell asleep waiting for the road assist but was awakened by a phone call at 1:18am.  When Maddin sat up, his torso and feet were numb from being in the cold temperatures.  Maddie then contacted dispatch who told him to, "hang in there."

About 30 minutes after Maddin's second phone call to road assist, Maddin became worried about continuing to wait in the freezing cold without heat and decided to unhitch his trailer from the truck.  Maddie called his supervisor and informed him he was leaving to seek help but was told to either drag the trailer with its frozen brakes, or remain with the trailer until the road assist arrived.  Maddin followed neither instruction and drove off, leaving the trailer unattended.  Maddie was then terminated for abandoning his trailer.

After his termination, Maddin filed a complaint with OSHA, asserting TransAm violated the whistle-blower provisions of the Surface Transportation Assistance Act ("STAA") when they fired him.  OSHA dismissed Maddin's complaint and Maddin then requested a hearing in front of a Department of Labor ALJ.  The ALJ issued a decision ruling Maddin was terminated in violation of the STAA, finding Maddin engaged in protected activity when he reported the frozen brake issue to TransAm and again when he refused to obey his supervisor's instruction to drive the truck while dragging the trailer with frozen brakes.  The ALJ then awarded Maddin backpay from the date of his discharge to the date of his reinstatement, along with Maddin's per diem travel allowances, which the ALJ concluded were part of his compensation.

TransAm appealed the ALJ's decision to the Administrative Review Board ("ARB") who affirmed the ALJ's decision.  TransAm then appealed ARB's decision to the Court of Appeals for the 10th Circuit.

The STAA Claim

The STAA prohibits an employer from discharging an employee because the employee "has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order."  TransAm challenged the ARB's conclusion that "uncorrected vehicle defects, such as faulty brakes, violate safety regulations and reporting a defective vehicle falls squarely within the definition of protected activity under STAA."  TransAm argued that Maddin's report of frozen brakes is not a complaint of the type the STAA seeks to protect because Maddin was simply communicating a concern about defective brakes, a condition that in and of itself does not constitute a violation of any statute or regulation.  The 10th Circuit held that this issue can be affirmed under an alternative provision of the STAA which makes it unlawful for an employer to discharge an employee who "refuses to operate a vehicle because ... the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazardous safety or security condition."

TransAm next argued that because Maddin drove the truck after being instructed to "stay put," that he actually operated his vehicle and the ARB erred in concluding his conduct fell within the "refusal to operate" provision of the STAA.  The term "operate" is not defined by statute and so the 10th Circuit gave "Chevron deference" to ARB's interpretation of the term "operate" to not be coextensive with the term "drive."

Finding ARB's interpretation of "operate" to be a permissible construction of the statute, the 10th Circuit also concluded ARB's finding that Maddin engaged in STAA-protected activity when he unhitched the trailer and drove off in the truck is supported by substantial evidence.

The 10th Circuit also upheld the backpay award.

The case is TransAm Trucking, Inc. v. Department of Labor, No. 15-9504 (Tenth Circuit August 8, 2016).

Monday, August 15, 2016

7th Circuit Again Holds Title VII Does Not Cover Sexual Orientation Discrimination

The Court of Appeals for the 7th Circuit, faced yet again with a claim arguing that sexual orientation discrimination is actionable under Title VII, granted summary judgment in favor of the defendant holding that the law and precedent is clear that Title VII does not allow for claims of sexual orientation discrimination.  While the 7th Circuit in their 42-page decision seem reluctant to make this ruling upholding the lower district court, they do take care to provide much commentary on how such claims may be actionable and also suggest that the times may be ripe for Title VII--or another law such as ENDA--to cover such claims, noting how several states, have laws protecting sexual orientation status in employment and how the Supreme Court has struck down almost every ban on gay marriage.  In noting the issue of gay marriage in the Supreme Court, the 7th Circuit noted the paradox in which "...a person can be married on Saturday and then fired on Monday for just that act.”  The 7th Circuit also opined that perhaps it is time for the Supreme Court to weigh in on this issue, which may be a reason they heard this appeal, despite their seemingly easy decision to make.

Luckily for employees in Wisconsin, the Wisconsin Fair Employment Act ("WFEA") does provide protection against discrimination in the workplace against individuals based on their sexual orientation.  Sexual orientation under the WFEA is defined as having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference.

The case is Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016).