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).  


Wednesday, July 27, 2016

Preventing an Employee on Work Restrictions from Returning to Work While on FMLA Leave?

What is an employer to do when an employee who goes out on Family and Medical Leave Act ("FMLA") leave is ready to return prior to the expiration of their leave, but is not "100% cleared" to return to work?  A federal court in Florida recently addressed this issue.

Returning to Work After FMLA Leave

The FMLA grants eligible employees the right to leave in certain situations "and the right following leave 'to be restored by the employer to the position of employment held by the employee when the leave commenced' or to an equivalent position."  However, an employee does not have a right to restoration if after the FMLA-leave period the employee remains unable to perform an essential function of the position because of a physician or mental condition.  "Unable to perform the functions of the position" is defined as "the health care provider find[ing] that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee's position."

One way employers are able to determine whether an employee is able to perform the functions of their position, and thus whether the employee is entitled to restoration, is a fitness-for-duty certification.  The FMLA allows an employer, as part of a uniformly applied practice or policy, to condition an employee's right to be restored to her position on the employee "receive[ing] certification from the health care provider of the employee that the employee is able to resume work."  If an employee fails to provide a validly requested fitness-for-duty certification, they lose their right to restoration.

The FMLA regulations concerning fitness-for-duty certifications contemplate two types of certifications:  1)  one where the healthcare provider certifies that the employee is "able to resume work"; 2) one that "specifically address[es] the employee's ability to perform the essential functions of the employee's job."  In order to require either type of fitness-for-duty certification as a condition for restoration, the employer must advise the employee in its notice designating the employee's leave as FMLA-qualifying that it will require a fitness-for-duty certification for the employee to return to work.  The FMLA regulations are more demanding on an employer who seeks to require the second type of certification.  To require the second type of certification, the employer "must provide an employee with a list of the essential functions of the employee's job no later than " the time it gives notice of designation the employee's leave as FMLA-qualifying, and the designation notice itself must indicate "that the certification must address the employee's ability to perform those essential functions."    Regardless of which certification is required, an employer may request clarification of the certification from the healthcare provider.  "The employer may not delay the employee's return to work while contact with the health care provider is being made."

Sandra Dykstra v. Florida Foreclosure Attorneys, PLLC and Rick Felberbaum

In Dykstra, a federal district court in Florida was presented with a Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6)) by the Defendants, a large Palm Beach County law firm with more than 50 employees and another lawyer, on plaintiff's FMLA interference, FMLA retaliation, and disability discrimination claims under both Title I of the Americans with Disabilities Act and Florida's comparable state law.

The plaintiff, Sarah Dykstra, was employed as the Information Technology Director for Defendants.  Due to a back injury, Dykstra took leave under the FMLA.  Approximately one month before the expiration of her FMLA leave, Dykstra told the defendants that she wanted to return to work and was able to do so.  Toward that end, Dykstra provided the defendants with a fitness-for-duty certification stating that she was medically cleared to return to work with light duty restrictions.  Defendants refused to allow Dykstra to return to work until she was "100% cured."  

A few days before Dykstra's FMLA leave was to expire, defendants informed Dykstra that she could not return to work unless she provided a medical certification confirming that she was medically cleared to return to work without any restrictions.  On the day Dykstra's leave expired, defendants informed Dykstra that her employment would be terminated if she could not return to work in two days "100% cured."  When Dykstra didn't do this, she was fired.  In her complaint, Dykstra alleged that she was "able to perform the essential functions of the IT Director position with light duty restrictions."

Court's Decision DENYING Defendants' Motion to Dismiss for Failure to State a Claim

In denying the defendants' motion to dismiss, the Court noted that Dykstra's complaint was silent as to which type of fitness-for-duty certification the defendants required, but based on the facts and rest of the allegations contained in the complaint, the Court concluded that the first, less onerous, type of fitness-for-duty certification was requested.  

Defendants argued that Dykstra failed to state a claim under the FMLA because her right to be restored to her position was conditioned upon her providing a satisfactory fitness-for-duty certification and that the "light duty restrictions" qualifier to Dykstra's fitness-for-duty certification rendered the certification inadequate and entitled them to refuse to restore Dykstra to her position and ultimately terminate her.  Thus, the Court stated, the question before them was whether an employee who provides a fitness-for-duty certification that she is able to return to work "with light duty restrictions" may state a cause of action under the FMLA when the lower threshold "able to resume work" certification is requested.  The Court held that the provision for such a fitness-for-duty certification does not foreclose an employee's FMLA claim.

The Court held that an employee may be "able to resume work" even if she is unable to perform all the essential functions of her job, depending on the specific facts of the case, which may be more dispositive in a motion for summary judgment.  In making this conclusion, the Court noted that if the ability to resume work and the ability to perform all the essential functions of the job were synonymous, the FMLA regulations would not reference two standards and mandate heightened requirements before the employer could insist on a more demanding "ability to perform essential functions" certification.  As it applies to Dykstra, all she was required to provide was a certification from her healthcare provider that she was able to resume work, "i.e., that she was not 'unable to work at all.'"  

The Court went on to clarify that the FMLA does not require an employer who fails to properly request an "ability to perform essential functions" certification to retain an employee who is unable to perform the functions of the position.  If an employer fails to request an "ability to perform essential functions" certification," the employer may still require medical examination of the employee to ensure that she is able to perform the essential functions of her position.  In Dykstra, the Court was only addressing whether Dykstra complied with her FMLA regulatory obligation to provide a satisfactory fitness-for-duty certification.  If it is later discovered that Dykstra is in fact not able to perform the essential functions of her position, she would not be entitled to reinstatement.

Because the Court found Dykstra satisfied her obligations under the FMLA with respect to supplying a proper fitness-for-duty, her claims will be allowed to proceed.  The Court also allows Dykstra's ADA and FCRA claims to proceed as the Court found she sufficiently plead that she had a "disability," as those terms are defined under the ADAAA.

The case is Sandra Dykstra v. Florida Foreclosure Attorneys, PLLC and Rick Felberbaum, Case No. 15-81275-CIV-MARRA (S.D. Florida, April 26, 2016).

Tuesday, July 19, 2016

EEOC Files Suit Against North Carolina Hospital for Its Mandatory Flu Vaccine Policy

The Equal Employment Opportunity Commission ("EEOC") has filed suit against a hospital in North Carolina alleging violation of Title VII for their mandatory flu vaccine policy, which did contain a process by which an employee can object to receiving the vaccine based on religious beliefs or medical concerns (e.g., an allergy to the vaccine's ingredients).  (I had previously written about mandatory flu shot policies here).

From the news article on the suit:
In August 2010, the hospital introduced a staff immunization policy (SIP) that requires employees to receive a flu vaccination no later than December 1 of each year. Under the hospital's SIP, an employee may request a religious exemption to the flu vaccine. The SIP provides that a religious exemption request must be made by September 1 of the year the vaccination is required or it may be denied. 
Once an employee makes a request for a religious exemption, the hospital determines whether to approve or deny the request. The hospital's manager of HR processes requests for exemption from the SIP that are based on employees' religious beliefs. According to the EEOC, the hospital failed to accommodate several employees who had a variety of religious beliefs.
The EEOC uncovered at least 4 employees who appeared to have legitimate reasons to be excluded from this vaccine policy but were denied and either reprimanded or terminated, which the EEOC alleges violates the religious accommodation component under Title VII.  The lawsuit asks the court to award back pay and compensatory damages to the terminated employees. It also seeks court orders requiring the hospital to discontinue its allegedly discriminatory practices and comply with the reasonable accommodation requirements of Title VII of the Civil Rights Act of 1964. 

7th Circuit Dismisses Professor's Section 1981 Retaliation Claim Against Colleague for Failure to State a Claim

In somewhat of an unusual case, the Court of Appeals for the 7th Circuit upheld dismissal of a plaintiff's suit for failure to state a claim when she sued one of her colleagues--who was also apparently her treating rheumatologist--under 42 U.S.C. section 1981 alleging retaliation for her complaining about anti-Jewish discrimination in the workplace (i.e., because she had an active lawsuit against her employer, Rush University Medical Center).

The plaintiff, Susan Shott, first sued Rush in 1994 claiming religious and disability discrimination where her religious claim was defeated but she was awarded $60,000 for her disability discrimination claim.  Shott then sued Rush again in 2011 alleging, among other things, that Rush administrators refused to increase her salary or promote her to full professor in retaliation for her earlier lawsuit.  The district court granted summary judgment and the 7th circuit affirmed.

While Shott's second lawsuit against Rush was pending, Shott then sued the current defendant, Robert S. Katz, "whom she had occasionally helped with statistical analysis."  Shott sued Katz alleging that, in retaliation for her ongoing litigation against Rush, Katz impeded her career advancement by rebuffing her invitations to collaborate on research articles.  Shott also accused Katz of retaliating against her by refusing to respond in timely fashion to her requests for prescription refills.

The lower court dismissed Shott's complaint for failure to state a claim, explaining that Katz's alleged withholding medical treatment did not state a claim for retaliation under section 1981 because Shott had not alleged that Katz's medical care affected her employment and also that Shott failed to allege a sufficient "nexus" between Katz's refusal to collaborate and her career advancement at Rush.  The lower court gave Shott 14 days to file an amended complaint, but she chose to appeal to the 7th circuit instead.

To state a retaliation claim under section 1981 based on events occurring in the workplace, an employee must show that she suffered a materially adverse action because she engaged in protected activity.  Furthermore, "individual employees can be held liable under Section 1981 if they 'participated' in the retaliatory conduct."  Shott argued that the lower court construed section 1981 too narrowly when they required her to allege that Katz's acts of retaliation were related to an adverse employment action.  The 7th circuit agreed with Katz but found this to be nevertheless unhelpful for her as Shott did not allege Katz was under any obligation to work with her or that he discouraged anyone else from working with her and that even if Katz's refusal to collaborate with her was in any way motivated by her litigation against Rush, it would not be actionable under section 1981.  Moreover, Katz's decision about what research projects to pursue-and with whom-are protected by the 1st Amendment.

Regarding Shott's allegations that Katz retaliated against her by requesting to examine her every 6 months as a condition of continuing her prescription, the court was rather blunt:

"If she was not willing to comply with that obviously reasonable condition, she should have tried to find a new doctor, not filed a federal civil rights lawsuit against Katz."

The case is Susan Shott v. Robert S. Katz, Case No. 15-3528 

Tuesday, June 28, 2016

Can I Walk Off the Job for a Safety Problem at Work?

A common question employees often have is what their rights are when they believe their workplace poses a risk to their health and safety.  To be more exact, employees often ask, "may I walk off the job if there is a safety hazard or if my employer won't fix a safety issue?"  The short answer is: in relatively rare circumstances.

The  Occupational Safety and Health Act ("OSHA") is the main federal law regulating workplace safety. OSHA gives you as an employee the right to have a safe and hazard free workplace.  OHSA also states when an employee may walk off the job.  There must be "imminent danger":
There must be a threat of death or serious physical harm. "Serious physical harm" means that a part of the body is damaged so severely that it cannot be used or cannot be used very well.
For a health hazard there must be a reasonable expectation that toxic substances or other health hazards are present and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency. The harm caused by the health hazard does not have to happen immediately.
The threat must be immediate or imminent. This means that you must believe that death or serious physical harm could occur within a short time, for example before OSHA could investigate the problem.
If an OSHA inspector believes that an imminent danger exists, the inspector must inform affected employees and the employer that he is recommending that OSHA take steps to stop the imminent danger.
OSHA has the right to ask a federal court to order the employer to eliminate the imminent danger.
Walking off the job should only be done if there is no other reasonable alternative and if your safety is in serious and immediate danger. In addition, you should call OSHA as soon as possible to report imminent dangers at 800-321-OSHA (6742).

Even if there is "imminent danger" and one or more of the above-mentioned conditions are present, you still must remain at the work site to be assigned to other work or wait for the problem to be fixed.  Going home or completely leaving the workplace could subject yourself to a legitimate termination. 

Employees may also want to consider filing a complaint with OSHA and are protected against retaliation from their employer if they do file a complaint.  Employees may also be covered by the National Labor Relations Act ("NLRA"), even if they are not part of a union, if they engage in concerted protected activity such as:
  • Two or more employees addressing their employer about improving their pay.
  • Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
  • An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

Department of Justice Announces Settlement Against Macy's for Immigration-Related Discrimination Claim

The Immigration and Nationality Act (INA) makes it unlawful for a person or other entity to discriminate against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—
(A) because of such individual’s national origin, or
(B) in the case of a protected individual (as defined in paragraph (3)), because of such individual’s citizenship status.
 
The Department of Justice recently announced a settlement of an INA charge against popular retailer Macy's, whereby it was found that a lawful permanent resident was not able to begin working at Macy’s even though she showed sufficient proof of her work authorization because a Macy’s hiring official incorrectly believed that lawful permanent residents were required to produce unexpired permanent resident cards.  The investigation also found that other human resource employees in Macy’s Glendale location were imposing the same unnecessary requirement on four other lawful permanent residents.  In contrast, U.S. citizens were permitted to choose whichever valid documents they wanted to present to prove their work authorization.
 
Under the INA, lawful permanent residents do not have to show their permanent resident cards when they start working.  Instead, like all workers, they can choose whichever documentation the would like to present, such as a driver’s license and unrestricted social security card, from the lists of acceptable documents.  ((6) Treatment of certain documentary practices as employment practices
A person’s or other entity’s request, for purposes of satisfying the requirements of section 1324a(b) of this title, for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1).)

From the DOJ's press release on the settlement:
Under the settlement agreement, Macy’s will, among other things, provide additional training to its employees and assess its employees’ understanding of applicable rules.  Macy’s will also pay an $8,700 civil penalty and periodically produce Form I-9 information to the department for review.

“Macy’s did the right thing by immediately resolving the charging party’s delayed hiring and by giving her full back pay,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department's Civil Rights Division.  “All employers should take care not to impose unlawful burdens on employees because of their citizenship or immigration status and address issues promptly when they make mistakes.”

Wednesday, June 15, 2016

Plaintiff with Alcoholism Allowed to Proceed on Disability and FMLA Claims Due to Employer's Suspicious Timing and Statements

A former territory sales rep, Roger Paul Lankford ("plaintiff"), for a business that provides motor oil and other supplies to auto dealers, Four O Corporation and Reladyne, LLC ("defendant"), sued alleging disability discrimination and retaliation under the Americans with Disabilities Act ("ADA") and Ohio's accompanying state law, and interference and retaliation under the Family Medical Leave Act ("FMLA").  The Defendant moved for summary judgment on claims, which the district court denied.

Facts

The plaintiff served as a territory sales rep for the defendant from 2008 until he was terminated on February 17, 2014.  On January 14, 2014, a driver for the defendant made a delivery to a customer and included in that delivery were three cases of oil and twelve oil filters which were described as "no charge--per Paul (the plaintiff)."  The driver asked the customer why the delivery was free and was told that they were a for free oil changes that had been given away.  The driver then inquired with the defendant about this free delivery which made it's way up the chain as the plaintiff's mother was the person to return a coupon for a free oil change.  The defendant had an investigation performed into the free delivery.

On January 28, 2014, the plaintiff informed his supervisor that he wanted FMLA leave to attend an alcohol rehabilitation program.  Plaintiff submitted a leave request, which was approved on January 29, 2014 and he then commenced his 35 day leave on January 30, 2014.  A number of emails were exchanged between and among members of defendant's management on February 5 and 6, 2014 regarding Plaintiff's termination.  Because plaintiff was on approved FMLA leave, it was determined that no action would be taken against him until he returned from his leave.

When plaintiff returned from FMLA leave in mid-February, the defendant arranged a meeting on February 17, 2014 to go over the investigation's findings.  The plaintiff denied issuing coupons to his mother and sister-in-law for free oil changes and claimed no knowledge of how they obtained them.  Nevertheless, the plaintiff was terminated on February 17, 2014.

Plaintiff's FMLA Interference Claims

To establish a prima facie case of FMLA interference, a plaintiff must prove that: (1) he was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) he was entitled to leave under the FMLA; (4) he gave the employer notice of his intention to take leave; and (5) the employer denied him FMLA benefits to which he was entitled.  The defendant argued that the plaintiff cannot fulfill the 5th element because he was not "entitled" to his position due to misconduct that was found to exist during his absence.  The district court cited the 6th circuit which has stated:  "[i]f an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLA-protected leave, the employer has denied the employee a benefit to which he is entitled.  Further, the court stated, "Viewing the facts in the light most favorable to plaintiff, the Court finds that a reasonable trier of fact could conclude that Defendants denied Plaintiff FMLA benefits to which he was entitled.  Plaintiff requested FMLA leave on January 28, 2014 to obtain inpatient treatment for his alcohol dependency.  When he returned from leave, he was not reinstated to his position or to an equivalent position, as required by 29 U.S.C. sec. 2614(a)(1)."

Furthermore, the Court noted that the plaintiff set forth evidence indicating that defendant may have used his FMLA leave as a negative factor in their decision to terminate him, which is prohibited.  Specifically, the plaintiff produced emails whereby his supervisors made comments like, "[w]e have too many signs to ignore and not proactively address."  However, just 6 weeks prior, the plaintiff received a positive review from the author of this email.

Plaintiff's FMLA Retaliation Claims

To establish a prima facie case of FMLA retaliation, a plaintiff must show that: (1) he was engaged in an activity protected by the FMLA; (2) his employer knew that he was exercising his FMLA rights; (3) he suffered an adverse employment action; and (4) a causal connection existed between the protected activity and the adverse employment action.  The defendant argued that the plaintiff could meet the 4th element.

The employer's motive is an integral part of the analysis in a retaliation claim.  The court noted, that is, "the adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation."  The court then noted that if "some time elapses between these two events," that the plaintiff then must couple temporal proximity with other evidence of retaliatory conduct to establish causality.

The Court found the temporal proximity between plaintiff's request for FMLA leave and his termination is significant as defendant's upper-management did not learn of the FMLA request until February 4, 2014 and, at the latest, determined the plaintiff should be terminated on February 6, 2014.  The Court concluded a reasonable juror could conclude that, because the decision to terminate plaintiff was made almost immediately following his request for medical leave, there was a causal connection between his FMLA leave and his termination.  Further, the plaintiff provided additional evidence of causation in the form of statements made by defendant's managers regarding his termination.

Legitimate, Non-Discriminatory Reason and Pretext

The defendants argued that the reason for the plaintiff's termination was for his giving away three cases of oil and twelve oil filters without approval, which is tantamount to theft, as their legitimate, nondiscriminatory reason ("LNDR") for plaintiff's termination.  Accordingly, the Court noted, the burden shifts to plaintiff to show that this reason is pretext.

Noting that temporal proximity cannot be the sole basis for finding pretext, they noted that the 6th Circuit has found "suspicious timing as a strong indicator of pretext when accompanied by some other, independent evidence."  The Court also noted that the plaintiff preferred other reasons to serve as pretext:  (1) emails circulated between and among members of defendant's management prior to plaintiff's termination; (2) statements made at plaintiff's termination meeting; and (3) statements made following plaintiff's termination.

Some of the language in defendant's emails regarding the plaintiff's termination were too much to overcome:
  • "[w]e have too many signs to ignore and not proactively address."  This email was forwarded to the prevention loss investigator and there was no explanation as to why.  The Court concluded a reasonable juror could conclude that the investigator was assigned with proactively addressing plaintiff's situation by providing a justification to fire him.
  • On February 5, 2014, an email was sent out and a response included, "...but we need to consult with you regarding his rehab condition."  
  • In a follow up email to the February 5th email, a statement was made about how they had a "nice Plan B."  A "Plan B" is a alternative strategy, the court noted, and a reasonable juror could believe that the original strategy, Plan A, was to terminate Plaintiff because he was an alcoholic who needed medical leave.
  • At the termination meeting, on the termination sheet, was written: "Personal Lief in Ruins--Needs Outside Help--Seemed 'High' in conference with David Luke and I..
Plaintiff's ADA Claim

To make out a prima facie case of employment discrimination under Title I of the ADA, a plaintiff must show: (1) he is disabled; (2) he is otherwise qualified for the position, with or without reasonable accommodation; (3) he suffered an adverse employment employment decision; (4) the employer knew or had reason to know of his disability; and (5) the position remained open while the employer sought other applicants or the disabled individual was replaced.  The defendant argued that plaintiff is unable to satisfy the first element because there is no evidence that plaintiff was disabled by his alcohol dependency.

The Court noted that the definition of "disability" is to be construed broadly and that alcoholism can constitute a disability under the ADA.  The plaintiff's medical records demonstrated that his alcohol dependency substantially limited his life activities.  The Court then noted the several and severe symptoms of the plaintiff's alcoholism which made it clear this was a disability that affected a few of his major life activities.

Plaintiff's Retaliation Claim

The defendant argued that the plaintiff did not engage in protected activity.  However, the Court noted that requesting medical leave as an accommodation constitutes protected activity.  The Court also stated that because the plaintiff was terminated soon after this request, that he established a claim for retaliation.

The Court denied the defendant's motion for summary judgment and the plaintiff was allowed to proceed with all 6 of his claims.  The case is Lankford v Reladyne, SDOhio, November 19, 2015, Black, T

Tuesday, June 14, 2016

Equal Right Division's Early Mediation Program

Back in 2011, the Wisconsin Equal Rights Division ("ERD") reinstituted its Early Referral Mediation Program.  When a Complainant files a discrimination complaint with the ERD, inside the envelope along with a copy of the complaint, instructions and cover letter is a pamphlet about the Early Referral Mediation Program.  Frequently I receive phone calls about this program and the purpose of this post is to try and explain the Program and it's benefits and some of the reasons perhaps a Complainant would choose to not try the Program, though the pamphlet is a very good, thorough, and easy-to-understand source of information as well.

What is Mediation?

Mediation is a form of alternative dispute resolution ("ADR") and its goal is to help the parties reach a resolution to their case.  The mediators are third-party individuals who are not involved with the case whose goal is to help the parties settle as they often pride themselves on their high settlement rates.  The ERD uses current Administrative Law Judges ("ALJ"), who will not be assigned to hear the case if it goes to hearing, as mediators.  A nice benefit to having ALJ's as mediators is they can provide extremely helpful insights to your case as they have to decide employment discrimination cases on a routine basis and can identify issues with cases as often times people believe their cases are stronger than they are.


Do I Need an Attorney for Mediation?

It is often advised to retain an attorney as they generally help with the process and can guide individuals on how to best handle and settle their cases--or whether to settle them at all.  People are often not knowledgeable about the types of remedies they can obtain through employment discrimination suits through the ERD and can sometimes have unreasonable and unrealistic settlement demands.  Having an attorney often yields higher settlements at mediation because the Respondent knows they may have to face tough opposition if they don't settle and have to go to a hearing.

Every attorney is different but some attorneys like engaging in mediation as early as possible to not only see if the case can settle with ease, but also to learn a lot about their case early on so that it may be helpful down the road.  On the other hand, some attorneys think mediation can be a waste of time early on because it's not likely to yield a favorable settlement amount given not too much is known about their case at the complaint stage and the ERD does not require Respondent's to file a written response to complaints if the parties choose to engage in early mediation.  Thus, if a Complainant does not believe the Respondent will come anywhere close to their settlement demand, it can be a waste of time.  In fact, usually if both parties have an attorney, the attorneys spend time trying to settle first before resorting to mediation.  If the attorneys are too far apart, then mediation is usually not likely to bridge the gap.  If the attorneys are reasonably close, then mediation is often a good idea because the mediator may be able to convince one or both sides why they should make concessions.

What Happens if My Case Doesn't Settle?

If mediation does not result in settlement, then the case is sent back down to investigation and the investigator assigned to the case.  If the Respondent hasn't file a written response, they will be required to do so and then the investigator can make their Initial Determination.

Even though early mediation may not be successful, the ERD allows the parties to engage in mediation again later in the process if they believe it may be helpful as the ERD generally prefers cases not have to go to hearing and, indeed, some, if not all, ALJs attempt settlement the morning of hearings to give settlement one last chance.

Last Tips:
  •  Having an attorney for mediation is recommended, though not required
  • Mediations can take anywhere from a few hours to a few days, so patience is key
  • Try to keep in mind issues with your case and try and understand the other side's case and point-of-view 
  • Mediators are meant to be neutral and if you feel that they are against you, still consider what they have to say as it may be beneficial if your case is pursued to investigation

Wednesday, June 8, 2016

Blind Employee Denied a Promotion with HHS Fails on Title VII and Rehabilitation Act Claims

The plaintiff, Janean Chambers, is a legally blind, African-American woman who worked for the Department of Health and Human Services ("HHS") since 1989.  In 2006, Chambers was promoted to a Management Analyst at a GS-9 pay grade and became eligible to apply for GS-11 positions in 2007.  Chambers preferred to continue in her current position, but at a higher grade, so she requested a promotion from her second level supervisor.  However, Chambers was told she could not be promoted because her position was "capped" at the GS-9 level.  As a result, HHS gave Chambers two vehicles for promotion:  1) she could apply for an available GS-11 position in the agency, or 2) she could request  favorable "desk audit" to demonstrate her current duties warranted a higher pay grade.  Chambers did neither.

Over the next 4 years, Chambers pursued an "informal method" of promotion with HHS:  the creation of a higher-graded vacancy with the same responsibilities as her current job.  Chambers' supervisor told her that he supported such a promotion, but that he lacked authority to create a new position--that could only be done by his superiors.  He then told Chambers he would ask for such a position to be created.

When no vacancy was created, Chambers met with her supervisors to vent frustrations and then she filed a complaint with the EEO office at HHS alleging that she had been denied promotion in October 2011 because of her race and disability.  Chambers claimed that at the same time she had been told that HHS lacked the funds to create her position, the agency created positions to promote three white, sighted department heads from a GS-14 to a GS-15 pay grade and had created a new GS-14 network security position.  She also asserted that the other Section 508 Coordinators elsewhere in HHS were paid at a higher grade than she was, despite serving smaller divisions.  In an attempt to resolve Chambers' EEO claim, the parties agreed to an expedited desk audit, but the audit concluded that Chambers' job was properly classified at the GS-9 level.

District Court Decision

Chambers filed suit in district court alleging that she was not promoted to a GS-11 level because of her race and disability in violation of Title VII and the Rehabilitation Act.  The district court granted summary judgment to HHS, reasoning that an employee could not suffer a cognizable adverse employment action when the position she sought did not exist and when her supervisor lacked authority to create it.  Chambers appealed and the Court of Appeals for the District of Columbia affirmed, but on different grounds.

D.C. Circuit's Decision Affirming

The D.C. Circuit affirmed the district court's granting of summary judgment, but on different grounds.  The Court stated that the "district court was right that Chambers must show that she suffered a cognizable adverse employment action to prevail under Title VII and the Rehabilitation Act," and that "Chambers attempts to meet this burden by arguing that Curtis (her supervisor) failed to ask his supervisors to create a new GS-11 Section 508 Coordinator position.  This failure, in her view, amounted to the denial of a promotion."

HHS argued that denial of promotion is an adverse employment action but it is only cognizable if a vacancy for a desired position already exists.  The district court agreed with this argument, but the DC Circuit held that, "there is no such categorical rule in our case law.  Instead, we affirm the district court's grant of summary judgment to HHS on a different ground:  Chambers did not produce evidence from which a reasonable juror could find that she was denied the promotion because of her race or disability."

The DC Circuit found HHS' and the district court's logic fundamentally flawed with respect for the need for there to be a position in existence for a denial of promotion to occur:
The government argues that the lack of a vacancy dooms her claim.  We disagree.  We have recognized that claims alleging an unlawful denial of promotion come in at least two forms:  the denial of a promotion to a vacant position and the denial of an increase in pay or grade.  ...  Precedent makes clear that employees who pursue, and are denied, pay or grade increases can still suffer a materially adverse employment action.  Chambers advances this type of claim, and she did not need to identify an available vacancy to survive summary judgment.

This approach avoids creating an unacceptable loophole in our antidiscrimination law.
Thus, the DC Circuit held that Chambers' failed to show that she was denied her promotion because of her race or disability.  Chambers claimed that she was the victim of unlawful discrimination because her supervisor did not request the creation of a GS-11 position from his superiors.  However, the Court found that no reasonable juror could find that her supervisor contributed to the agency's inaction and that her supervisor routinely supported Chambers and treated her quite favorably.   The Court also noted that a reasonable juror could not conclude from the record that Chambers' supervisor's supervisor denied the request for the GS-11 position because of Chambers' race or disability because he did not know who was asking for the GS-11 position as a promotional opportunity.

The case is Chambers v Burwell, DCCir, May 31, 2016, Griffith, T.