Thursday, August 24, 2017

Failure to Specifically Allege Failure to Conform to Sex Stereotype Did Not Doom Former Nursing Home Employee's Title VII Claim

A federal district court in the Eastern District of Pennsylvania has denied a defendant nursing home's Motion to Dismiss under FRCP Rule 12(b)(6) even though the plaintiff alleged only merely that he is gay and only provided facts about his former supervisor mocking his effeminate behavior.


The plaintiff, Frank "Doe" (the plaintiff filed a motion to proceed anonymously in order to keep private the fact that he is gay), began working as an activities director for the Meadowview Rehabilitation and Nursing Center, a nursing home in Pennsylvania, in May 2015.  In February 2016, the nursing home hired defendant John Chapman.  Around the time of Chapman's hire, two of plaintiff's coworkers warned him that he should not "act gay" around Chapman, one of them telling him to "turn the gay down."

Chapman nevertheless discovered the plaintiff was gay in February 2016 and "repeatedly mocked [him] by referring to him by the female name, 'Frances,' instead of [plaintiff's] real name, 'Frank'" with a high-pitched, effeminate intonation.  Plaintiff repeatedly told Chapman to stop, but he did not.

Around May 2016, Chapman asked the plaintiff privately whether plaintiff thought Chapman did not like him.  Plaintiff "responded that he believed Mr. Chapman had a problem with gay people in general.  Mr. Chapman raised his hand in the air, dropped it in his lap and said, 'Frances!' in a high-pitched, dramatic fashion.  After this conversation, Chapman did not stop mocking plaintiff by calling him "Frances," and did so in front of his coworkers to embarrass him.

On September 22, 2016, Chapman told plaintiff that he had seen him sleeping during a staff meeting the day before, and fired him.  This was an "exaggerated and completely fabricated reason" that Chapman allegedly used as a pretext to fire plaintiff.  Meadowview did not offer plaintiff the progressive discipline it routinely offered its other employees, which would have required a verbal warning, four written warnings and then suspension before termination.  Plaintiff then filed suit in federal district court after exhausting his administrative remedies.


The plaintiff brought his claims of discrimination and retaliation under Title VII and the PHRA.  In their motion to dismiss, defendants argued that plaintiff's claim for wrongful discharge and hostile work environment under Title VII should be dismissed because he alleges discrimination on the basis of sexual orientation only, not on the basis that his conduct did not conform to stereotypes of masculinity.  As just about every circuit has held, except for the 7th circuit, Title VII does not prohibit discrimination on the basis of sexual orientation.

The Court here denied the defendants' motion to dismiss, finding that plaintiff describes himself as the victim of antagonistic treatment due to his perceived effeminate behavior, rather than as a result of his sexual orientation alone.

The Court further found that the plaintiff sufficiently alleged that he was discriminated against because Chapman perceived that he did not conform to Chapman's expectations of what is masculine.  According to the complaint, Chapman apparently found plaintiff to be effeminate, using both a female name, "Frances," to refer mockingly to plaintiff, and a feminine, high-pitched voice when referring to him by this name.  Plaintiff shows that Chapman harassed and, ultimately, fired plaintiff because of his failure to conform to sex stereotypes.

Although the plaintiff did not specifically allege that he actually acted effeminately, the absence of such an allegation does not doom his claim, the court held.  Rather, he must merely show that he was perceived to be a member of a protected category.

The court also found that the plaintiff sufficiently plead a case for retaliation when he asked that Chapman stop with the mocking and names, he was fired, and there was a causal connection because the mocking continued nearly up to the point he was fired.

While this court is allowing this claim to proceed, it's definitely best practice to be sure to know what circuit you are filing this type of claim under and be sure to plead specific language that alleges the defendant discriminated against a plaintiff because of their failure to conform to specific sex stereotype(s).

The case is  Doe v WM Operating, LLC dba Meadowview Rehabilitation & Nursing Center, (EDPa, August 7, 2017).

Wednesday, August 16, 2017

White Hotel Worker Fired After Discussing "Black Lives Matter" Has Race Discrimination Claims Dismissed

With all of the more extreme events taking place in politics lately, you can expect a rise in employment law claims when people are fired for bringing these topics into the workplace.  A recent case out of a federal district court in South Carolina highlights how employees in the private sector are not as protected as they may think, or like, when it comes to voicing their political views in the workplace.

The plaintiff, Kimberly Collins, was fired after a conversation she had with three superiors, who were African-American, at the hotel they all worked at.  During this conversation, Collins expressed her opinions on a Black Lives Matter protest that had just taken place in the hotel, the recent shooting of an African-American in nearby North Charleston, the prior year's police shooting of another African-American in Missouri and its aftermath, diversity training that Charleston Place employees had attended several months earlier, and the state of race relations during the Obama presidency.  Though the court opinion does not state exactly what Collins said, they did say that her comments "were not well-received."

The person who made the decision to fire Collins, was a Caucasian whom Collins worked directly.  Though this supervisor was out of town when Collins made her comments, the three African-American supervisors told him the substance of her remarks and also described Collins as acting belligerently, yelling at them and wagging her finger in one person's face.  Based on the information he received, the Caucasian supervisor decided to fire Collins because she was hostile and disrespectful to superiors.  Thus, Collins then filed claims against Charleston Place alleging race discrimination in violation of Title VII and Section 1981 and state law violations due to firing her because of her political opinions and because she expressed those opinions in the workplace.

A Magistrate judge issued a Report and Recommendation ("R&R") and recommended that the district court dismiss Collins' two federal claim and not exercise jurisdiction over the state law claim.  The district court agreed.

Title VII Claim

Ultimately, Collins failed on her Title VII race discrimination claim because she was not able to show that "other employees who are not members of the protected class were retained under apparently similar circumstances."  For one, the person who fired her is Caucasian and, for another, she was replaced with another Caucasian.  Furthermore, the Court held that even had Collins met her burden under the McDonnell Douglas burden-shifting scheme, she would not be able to show pretext.

This case doesn't suggest or show that any and all similar political speech in the workplace that leads to termination would fail in court, but these facts were simply not good for this plaintiff who appears to have voiced her political opinions in a very disrespectful manner to individuals of the opposite race who happened to be her superiors.  What this case does show is that engaging in political discussion or speech in the workplace is not an absolutely-protected activity that can never lead to termination.

State Law Claim

Since the Court dismissed the two federal law claims, it was inevitable that they would dismiss the state law claims as well, despite objection from the Defendant.  The Defendant wanted the state law claim to remain in federal court, among other reasons, because it would lead to further costs and delay.  However, the Court decided that because this is a state law issue, it would not let this remaining claim be litigated in federal court and that state court is the proper venue.

Perhaps another important question and issue surrounds the people who have been getting fired from their jobs after being outed as attendees of the Neo-Nazi rally in Charlottesville, Virginia.  The short answer to whether people can be fired from their private sector job for participation in such a rally is: yes.

Monday, August 7, 2017

NYT Article on Difficulty in Proving Age Discrimination Claims

The New York Times has an article today titled, "Shown the Door, Older Workers Find Bias Hard to Prove."  I haven't seen the most-recent statistics on employment law litigation, but getting past summary judgment and to a jury is still a seemingly insurmountable task these days and this article helps discuss why that is.  Worth a read!

6th Circuit Upholds Summary Judgment, Finding AutoZone Store Manager Not a "Supervisor" for Purposes of Title VII Vicarious Liability

In sexual harassment cases, one of the biggest issues that are litigated is whether the person accused of engaging in sexually-harassing behavior is the plaintiff's supervisor or merely a co-worker.  The reason this distinction is important is because if the employee is a supervisor, a non-negligent employer may become vicariously liable if the agency relationship aids the victim's supervisor in his harassment.  If the employee is merely a co-worker, the employer is liable only if it was negligent in controlling working conditions--that is, if the employer knew or should have known of the harassment yet failed to take prompt and appropriate corrective action.  In a more recent case out of the 6th Circuit, the Court of Appeals discussed how an AutoZone store manager, despite his title, was not a supervisor for purposes of Title VII liability.

Facts and Decision

The Store Manager Was Not Empowered by AutoZone to Take Tangible Employment Actions Against His Victims

The conduct of the store manager at issue was repulsive and both parties actually agreed on this point.  However, given the more important facts of this case, the 6th Circuit upheld summary judgment for two huge reasons:  1) the store manager was not a supervisor due to his specific duties and powers; and 2) AutoZone exercised reasonable care to prevent and correct promptly the sexually harassing behavior, and the employees "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

An employee is a supervisor for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.  Tangible employment actions are those that "effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."  The Court held that in this case, AutoZone did not employer the store manager to take any tangible employment actions against his victims because he could not fire, demote, promote, or transfer employees.  The store manager could, however, direct the victims' work, could initiate the disciplinary process and recommended demotion or promotion, conducted performance reviews, and had the ability to influence the district manager.

AutoZone Established an Affirmative Defense to Liability

The Court also concluded that even if the store manager was considered a supervisor under Title VII, AutoZone established an affirmative defense to liability.  This defense has two elements:  (1) "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior"; and (2) that the harassed employees "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."  The Court found that AutoZone met both elements.

First, AutoZone exercised reasonable care to prevent harassment and promptly fired the store manager at issue when it learned of his behavior.  AutoZone also promulgated and enforced a sexual harassment policy, that the victims acknowledged they were aware of, though claimed they never read it.  More importantly, the Court noted, AutoZone promptly corrected the store manager's sexual harassment once it learned of it by investigating it, transferring him and then terminating his employment.

The victims in this case, which is also a huge problem with people who attempt to claim sexual harassment in the workplace, also did not report the sexual harassment for several months.  6th Circuit precedent has already held that an employee who unreasonably fails to take advantage of corrective opportunities when she waits two months to report harassment.

For both of those reasons, the Court held that summary judgment was appropriate and upheld.  The case is EEOC v. AutoZone, Inc., et. al., Case No. 16-6387 (6th Cir., June 9, 2017).

Thursday, August 3, 2017

Wisconsin Court of Appeals Reverses $2.2 Million Jury Award, Finds Doctor Was an At-Will Employee

A little over a year ago, after a week-long trial, a jury in Madison, Wisconsin awarded former Dean Clinic doctor, Donald Bukstein, M.D., $2.2 million after the circuit court judge denied Dean's motion for summary judgment.  Dean appealed this jury verdict and the judge's denial of summary judgment to the Wisconsin Court of Appeals who reversed this jury verdict and the judge's decision denying Dean's motion for summary judgment.  At issue was whether Bukstein was an at-will employee subject to termination without case or whether Dean had a policy that altered his at-will status and provided him greater employment protection.


Bukstein was employed as a Dean shareholder from 1981-2012.  In 2008, Dean and Bukstein entered into a written Shareholder Employment Agreement.  This Agreement contains an at-will provision giving Dean the right to terminate its employment relationship with Bukstein "at any time" and "without cause," so long as two conditions were met: 1) Dean provided Bukstein with 90 days' written notice, and 2) at least three-fourths of the members of the Dean Board of Directors voted to terminate his employment "without cause."  Bukstein had a parallel right under the at-will provision to end his employment relationship with Dean--after all, at-will employment is a two-way street!

Three of Bukstein's patients reported to Dean that he had touched them in a sexual manner during the course of examination or treatment, which prompted Dean to conduct an investigation.  After this investigation, there were several meetings of the Dean Board.  Additionally, pursuant to a Dean management policy, committees met to discuss the findings of the investigation.  This management policy is a document that was promulgated after and separate from the employment agreement and Dean followed some of the procedures outlined in this policy.  However, Dean did not terminate Bukstein's employment under this management policy--they terminated him pursuant the at-will provision written into the Shareholder Employment Agreement, without cause, even though the Board initially voted against terminating Bukstein's employment.

Relying on the Dean management policy, Bukstein filed suit in Dane County Circuit Court alleging (1) breach of contract and (2) breach of the duty of good faith and fair dealing.  Dean moved for summary judgment on both causes of action but the circuit court denied Dean's motion.  The matter then proceeded to trial and the jury returned verdict in Bukstein's favor, awarding him $2.2 million.  Dean then promptly appealed this matter to the Wisconsin Court of Appeals.

Breach of Contract Claim

Bukstein's breach of contract claim hinged entirely on Dean's "Physician Practice and Performance Management Policy," which is a two-page document that provided guidelines for Dean investigations into allegations against physician-employees, like Bukstein, that could lead to discipline, including termination.  This policy makes no reference to any provision in the employment agreement, including the at-will provision.  Bukstein argued that this policy changed the employment relationship by creating a "contract separate from or supplemental to the [employment agreement.]"  The Court of Appeals held that the problem with Bukstein's reliance on this policy is that, under controlling case law, the policy does not modify Dean's right to terminate Bukstein under the at-will provision in the employment contract because of the "only when" rule.

The "only when" rule provides that policies alter an at-will relationship "only when" the policy "contains express provisions from which it can be reasonably inferred that the parties intended to bind each other to a different employment relationship" than the established at-will relationship.  Bukstein argued that the Dean policy changed the employment relationship in some manner, which created a triable issue as to whether Dean followed its policy in terminating Bukstein.

The Court of Appeals then addressed how controlling case law applied to the case, distinguishing it from cases Bukstein cited as favorable, and comparing to cases that showed Dean's policy did not alter the at-will relationship.  The court emphasized three points as to why the Dean policy did not alter the at-will relationship:  1)  unlike the employment agreement, neither party signed the Dean policy; 2) the Dean policy is expressly designated a "management policy" and fails to make any reference, explicit or implicit, to the at-will provision in the employment agreement.; and 3)  the Dean policy generally uses permissive language, merely permitting Dean to take certain steps in connection with investigations and potential disciplinary actions, without obligating Dean to take those steps.  Given all of this, the Court of Appeals concluded the "only when" rule was not satisfied under these facts, finding this claim should have been dismissed at summary judgment.

Duty of Good Faith and Fair Dealing

In at-will employment, employers have no duty to terminate employees in good faith because imposing "a good faith duty to terminate would unduly restrict an employer's discretion in managing the work force."  While other cases have embraced this holding, the Court of Appeals noted that this holding might be limited to terminations of employees with at-will contracts.  Because the Court concluded Bukstein was an at-will employee, this claim automatically failed too.

The case is Donald Bukstein, M.D. v. Dean Health Systems, Inc., Appeal No. 2016AP920 (July 20, 2017).

Thursday, July 27, 2017

7th Circuit Reverses Summary Judgment in Retaliation Case Against Walgreens

The Court of Appeals for the Seventh Circuit decided a case earlier this month whereby it reversed summary judgment in favor of Walgreen's whereby a former employee, Regina G. Baines, claims she was not rehired in retaliation for EEOC discrimination charges she filed some five years previously.  As is the mantra in employment law cases:  the devil lies in the details.  This case presented some unique facts that require special attention.  (The case originated out of my city, Milwaukee, by the way!)


The plaintiff, Baines, began working for Walgreens in 2005 as a pharmacy technician at a Walgreens store in Milwaukee, Wisconsin and worked there until approximately October 2008 when she received authorization to transfer to a Walgreens location in Atlanta, Georgia.  However, when she arrived in Atlanta, there was "no work."  Baines filed her 1st EEOC charge against Walgreens in July 2007 while with the Milwaukee store.  Members of management met with Baines in response to her EEOC charge, including district manager, Michelle Birch, who asked Baines what she wanted.  Baines stated that she wanted to be promoted to "senior technician" and transferred to a different story.  When she received neither, she filed her second EEOC charge against Walgreens in October 2007 alleging retaliation.

Later, Baines received approval to transfer to a Walgreens in Atlanta and when she found no work, she filed her third EEOC charge in January 2009 with the EEOC in Georgia alleging retaliation.  Baines later moved back to Wisconsin.  In July 2014 Baines applied for a pharmacy technician position with Walgreens in Wauwatosa, Wisconsin as they were looking for pharmacy technicians and the pharmacy supervisor there, Hannah Ruehs, managed the hiring process.  Baines called and discussed the position with Ruehs by telephone and was told that her application would be reviewed and she would be contacted if she had done well on her assessment test.  On July 25th, Ruehs called and told Baines she had selected Lisa Martin for the position.  Martin had less experience than Baines at the time and, in fact, Baines was the only applicant who had prior experience working as a Walgreens pharmacy technician.

Martin testified at her deposition that Ruehs told her in February 2015 that she did not hire Baines because Birch intervened.  Martin testified that Ruehs said that she had wanted to hire someone named "Regina" and that she "really liked" Regina and she "really wanted to hire her."  However, Ruehs told Martin:  "You didn't hear it from me, but I was told from higher up, Ms. Birch, that I could not hire her."  Ruehs said she did not know why Birch forbade her from hiring Baines.

After Walgreens chose not to hire Baines in July 2014, she filed her fourth EEOC charge against Walgreens alleging retaliation, which provided the basis for the facts in this appeal.


To survive summary judgment on a retaliation claim, a plaintiff has to offer evidence of "(1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two."  Filing an EEOC charge is a "statutorily protected activity" and failing to hire is a "materially adverse action."  The issue in this case was whether there was a "causal connection between the two":  Baines' EEOC charges and Walgreens' decision not to rehire her.  A plaintiff demonstrates a causal connection by showing that the defendant "would not have taken the adverse ... action but for [her[ protected activity."

The district court below, in granting summary judgment in favor of Walgreens, held that Baines failed to establish a causal connection.  The district court did assumed Martin's testimony about what Ruehs told her was admissible, but explained:  "Martin did not testify that Ruehs told her that Birch did not hire Baines because of the prior EEOC complaints.  Martin's testimony, thus, falls short of a showing that Birch was aware of the 2007 and/or 2009 EEOC charges in 2014 and did not hire Baines because of discriminatory animus."  The district court also noted the number of years that had passed between Baines' EEOC charges and the alleged retaliation in 2014, and that this time gap weakened the causal inference that Walgreens failed to rehire Baines because of her prior charges.

In reversing the district court's decision, the 7th Circuit emphasized the other tremendous pieces of circumstantial evidence Baines had showing a causal connection (also noting that rarely do plaintiffs have direct evidence of retaliation).  In addition to Martin's testimony about what Ruehs told her about being commanded  not to hire Baines (the Court discussed at length how a command is not a statement which makes it not hearsay and, thus, admissible), Baines also had evidence that her application and interview scores were mysteriously missing and that Walgreens offered no explanation for how or why, Ruehs hired someone with less experience than Baines, Ruehs initially denied even having interviewed Baines, and the unusual behavior of Birch in the hiring process of the pharmacy tech position when evidence showed Birch never played a role in the hiring of this position.  Because Birch played a role in Baines' first EEOC charge and then intervened in her rehire, which was highly unusual, this provided further substantial circumstantial evidence of a causal connection.

With respect to the fairly significant time gap between Baines' EEOC charge filings and Walgreens' failure to rehire her, the Court noted that Baines was not using this piece of circumstantial evidence as the sole piece of evidence to show a causal connection--that it was merely one piece of circumstantial evidence.

Key take away:  Just because there is a significant gap between statutorily protected activity and an adverse employment action does not doom a case when there is present other significant pieces of circumstantial evidence.  The 7th Circuit appreciates the fact plaintiffs almost always have to prove retaliation cases circumstantially and this case shows how evidence needs to be taken as a whole, with one piece of circumstantial evidence (temporal proximity) not capable of dooming an entire case.

Wednesday, July 26, 2017

Wisconsin Supreme Court Grants Cert in Unemployment Absenteeism Case

My colleague, Victor Forberger of the Wisconsin Unemployment blawg, recently brought to the fore that the Wisconsin Supreme Court has granted cert in a case involving absenteeism under the newer change to the unemployment insurance statute that created stricter standards for employees seeking benefits when they are terminated for absenteeism.  As explained by Attorney Forberger:

At issue in Beres is one of the new misconduct provisions that became effective in January 2014:
(e) Absenteeism by an employee on more than 2 occasions within the 120 day period before the date of the employee's termination, unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature, or excessive tardiness by an employee in violation of a policy of the employer that has been communicated to the employee, if the employee does not provide to his or her employer both notice and one or more valid reasons for the absenteeism or tardiness.

Wis. Stat. § 108.04(5)(e). In this provision, the number of absences and tardies was greatly reduced from what was originally in Wis. Stat. § 108.04(5g).   Prior to these changes, this absenteeism and tardiness provision in Wis. Stat. § 108.04(5g) allowed for disqualification for 6 or more tardies or 5 or more absences in a 12-month period and had detailed requirements about about employer notice to employees of this disqualification possibility and how employees had to notify the employer of an absence of tardy. During its meetings, the Advisory Council, after rejecting the Department's proposal, had agreed to amend sub-section (5g) in the following manner:
(5g) DISCHARGE FOR FAILURE TO NOTIFY EMPLOYER OF ABSENTEEISM OR TARDINESS. (a) If an employee is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive, and the employer has complied with the requirements of par. (d) with respect to that employee, the employee is ineligible to receive benefits until 6 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 6 times the employee's weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee's weekly benefit rate shall be the rate that would have been paid had the discharge not occurred.
(b) For purposes of this subsection, tardiness becomes excessive if an employee is late for 6 4 or more scheduled workdays in the 12 month 120 day period preceding the date of the discharge without providing adequate notice to his or her employer.
(c) For purposes of this subsection, absenteeism becomes excessive if an employee is absent for 5 2 or more scheduled workdays in the 12âˆ'month 120 day period preceding the date of the discharge without providing adequate notice to his or her employer.
(d) 1. The requalifying requirements under par. (a) apply only if the employer has a written policy on notification of tardiness or absences that:
a. Defines what constitutes a single occurrence of tardiness or absenteeism;
b. Describes the process for providing adequate notice of tardiness or absence, and, regarding tardiness, which gives the employee a reasonable time for providing notice and which at least allows the employee the opportunity to provide notice as soon as practically possible; and
c. Notifies the employee that failure to provide adequate notice of an absence or tardiness may lead to discharge.
2. The employer shall provide a copy of the written policy under subd. 1. to each employee and shall have written evidence that the employee received a copy of that policy.
3. The employer must have given the employee at least one warning concerning the employee's violation of the employer's written policy under subd. 1. within the 12 month period preceding the date of the discharge.
4. The employer must apply the written policy under subd. 1. uniformly to all employees of the employer.
But, the Department bill that set forth what the Advisory Council had proposed, see 2013 SB200, did NOT contain these provisions. When the first public hearing for 2013 SB200 was under way on 29 May 2013, the Joint Finance Committee introduced an amendment to the then budget bill, 2013 AB40, which included the absenteeism language now at issue in Beres. See "JFC UI Amendments" (29 May 2017) (available at
Into this messy legislative history arrives a relatively simple fact pattern. The employer nursing home in Beres had an attendance policy which indicated that employees would be terminated for a single absence during their 90-day probationary period if they were a no call, no show. The claimant in this case, Ms. Beres, was extremely ill and did not report to work or call in her absence. The employer called her home, and her spouse indicated that she was too sick to work. The employer then terminated her employment, and the Department denied her claim for unemployment benefits as misconduct because of absenteeism.
The Commission over-turned that disqualification because the claimant was not responsible for her illness and a single illness did not meet the threshold disqualification of more than two absences within 120 days.
The Department, however, appealed the case to circuit court and argued that employers have the option under this disqualification to set their own attendance standard for what will constitute misconduct pursuant to this statutory phrase: "unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature." For the Department, the employer's absenteeism policy — a single no call, no show absence during the probationary period — was the attendance requirement "specified" by the employer and so constituted misconduct under this provision. The circuit court agreed with the Department, and the Commission appealed.
The appeals court agreed with the Commission 2-1. The Department has now taken this case to the Wisconsin Supreme Court. In granting review, the court added the following additional question to be examined:
Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?
Recall that in Operton, three justices proclaimed that agency deference unconstitutionally impinges on the power of elected judges to decide what the law is on their own initiative.
A decision in this case raises two major problems. First, the court could gut agency deference. As a result, any and all decision by administrative agencies will be litigated under de novo review in circuit court and again at the appeals court. Certainly, there will be more billable hours. But, there will also be much greater expenses.
And, I doubt the outcome will be all that friendly to workers. Take the Wisconsin Bell/Carlson case, the disability discrimination case. That case is completely upended if de novo review is always applied by every court because judicial independence mandates such independence.
Second, the absenteeism provision will allow an employer to have a policy of a single absence being grounds for discharge. Any discharges that then occur under this policy will count as misconduct for UI purposes. Keep in mind that there is nothing here that requires this policy to be uniformly applied (the point will probably be litigated but I suspect that any uniformity requirement will be tossed). This disqualification would be a disaster for unrepresented workers. Represented workers will also be confronted with a significant change in the legislative landscape and new bargaining demands to change absenteeism policies to match what DWD will allow as misconduct.
Note that this UI disqualification now applies to WC benefit cases as well. How many times do folks on partial WC disability miss work?
Be sure to monitor this one as this will create substantial burdens and obstacles for employees seeking unemployment benefits when they are terminated for attendance.

Updated: Worker's Guide to Unemployment Insurance

The wonderful people at the Unemployment Appeals Clinic at the University of Wisconsin Law School (my alma mater) have updated their "Worker's Guide to Unemployment Insurance" to update several changes in the law and case law surrounding unemployment insurance in Wisconsin.  Be sure to consult this booklet if you are someone going through the appeals process or at least skim it if you handle unemployment insurance issues!  The guide is available here.

Tuesday, June 20, 2017

4th Circuit Holds Employer's Refusal to Accommodate Employee's Religious Accommodation Against Use of Hand Scanner Violated Title VII

Religious discrimination and failure-to-accommodate religion claims are still amongst the rarest discrimination claims that go to trial and a recent opinion out of the Court of Appeals for the Fourth Circuit showcases just why that is as the Court ruled in favor of an employee who felt forced to retire after nearly 40 years with this employer when they implemented a hand scanner system which the employee believed violated his religious beliefs and could have potentially amounted to a "mark of the beast."  This is yet another decision highlighting the Courts' precedent of refusing to question an employee's religious beliefs and interpretations and holding an employer liable when they choose to question such beliefs without showing accommodation would pose an undue hardship.

This appeal contained numerous issues on appeal, but this post will only focus on the employer's liability under Title VII.


The plaintiff, Beverly R. Butcher Jr., worked for the defendant, Consol Energy, Inc., for 37 years, without incident, as a coal miner at their Robinson Run Mine.  Butcher is also a life-long evangelical Christian, an ordained minister and associate pastor, and served his church in a variety of capacities.  That he had sincerely-held beliefs was not at issue in this case.

In 2012, Consol implemented a biometric hand-scanner system at the mine Butcher worked at in order to better monitor the attendance and work hours of its employees.  The scanner system required each employee checking in or out of a shift to scan his or her right hand; the shape of the right hand was then linked to the worker's unique personnel number.  This posed a problem for Butcher because he believed it presented a threat to core religious commitments.  Butcher feared that use of the hand-scanning system would result in being "marked" leading to his identification with the Antichrist.  Butcher brought his concerns to his union representative who alerted Consol's HR department.

Butcher was instructed by HR to provide a letter from his pastor explaining why he needed a religious accommodation, which he did.  Butcher also prepare his own letter, citing verses from the Book of Revelation and explaining his view that the hand scanner would associated him with the Mark of the Beast, causing him through his will and actions to serve the Antichrist.  Butcher later offed to check in with his shift supervisor or to punch in on a time clock, as he had in the past while working at the time.

Consol's HR supervisor gave Butcher a letter written by the scanner's manufacturer, offering assurances that the scanner cannot detect or place a mark--including the Mark of the Beast--on the body of a person.  Offering its own interpretation of "the Scriptures," the letter explained that because the Mark of the Beast is associated only with the right hand or the forehead, use of the left hand in the scanner would be sufficient to obviate any religious concerns regarding the system.

Unbeknownst to Butcher, Consol was providing an accommodation to other employees that allowed them to bypass the new scanner system altogether.  As of July 2012, Consol had determined that two employee with hand injuries, who could not be enrolled through a scan of either hand, instead could enter their personnel numbers on a keypad attached to the system.  According to Consol's own trial witness, this accommodation imposed no additional cost or burden on the company, and allowing Butcher to use the keypad procedure would have been similarly cost-free.

Consol ultimately denied Butcher's request for accommodation and informed him that failure to use the hand scanner system would result in following company policy, which was essentially writing him up until enough write-ups warranted termination.  Given the inevitable, Butcher tendered his resignation.  Butcher later filed a complaint with the EEOC, who then filed suit in district court under Title VII and prevailed after a jury trial, with the jury awarding compensatory damages and lost wages and benefits, but not punitive damages.  Consol appealed on several issues, but the 4th Circuit completely affirmed every ruling the district court made.


Consol's Failure to Accommodate Butcher's Sincerely Held Religious Belief

To show a violation of an employer's "reasonable accommodation" duty, an employee must prove that: (1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; and (3) he or she was disciplined for failure to comply with the conflicting employment requirement.  On appeal, Consol argued that the evidence presented at trial was legally insufficient to support the jury's specific findings under the first and third of these elements: that there was a conflict between a bona fide religious belief held by Butcher and the requirement that Butcher use the hand scanner, and that Butcher was constructively discharged as a result.

Consol unsuccessfully attempted to argue that there was in fact no conflict between Butcher's beliefs and its requirement that Butcher use the hand scanner system because the system would not imprint a physical mark on his hand.  Consol argued that this fact means the EEOC failed to establish that Butcher could not use the scanner system without compromising his beliefs regarding the Mark of the Beast.  Both the district court and 4th Circuit disagreed with this argument.

The district court explained that there was ample evidence from which a jury could conclude that Butcher sincerely believed "participation in this system"--with or without a tangible mark--"was a showing of allegiance to the Antichrist," inconsistent with his deepest religious convictions.  That is all that is required to establish the requisite conflict between Butcher's religious beliefs and Consol's inconsistence that he use its scanner system.

The court explained:  "At bottom, Consol's failure to recognize this conflict--in its dealings with Butcher as well as its litigation of this case--appears to reflect its conviction that Butcher's religious beliefs, though sincere, are mistaken:  that the Mark of the Beast is not, as Butcher believes, associated with mere participation in a scanner identification system, but instead manifests only as a physical mark, placed upon the right and not the left hand; and that as a result, allowing Butcher to scan his left hand through the system would be more than sufficient to obviate any potential conflict."  In fact, the Court stated:  "It is not Consol's place as an employer, not ours as a court, to question the correctness of even the plausibility of Butcher's religious understandings. ... So far as there is sufficient evidence that Butcher's beliefs are sincerely held--which the jury specifically found, and Consol does not dispute--and conflict with Consol's employment requirement, that is the end of the mater."

Butcher's Quitting Amounted to a Constructive Discharge

To satisfy the third element of a failure to accommodate religion claim, it only has to be shown that "an employer deliberately [made] the working conditions of the employee intolerable."  The 4th Circuit noted that the Supreme Court revised the standard for constructive discharge in 2016 and expressly rejected a "deliberateness" or intent requirement, which means the standard for constructive discharge requires only an objective "intolerability."  The 4th Circuit ultimately agreed with the district court that there existed substantial evidence that Butcher was put in an intolerable position when Consol refused to accommodate his religious objection, requiring him to use a scanner system that Butcher sincerely believed would render him a follower of the Antichrist, "tormented with fire and brimstone."

The 4th Circuit also agreed that the future prospect of a successful grievance under the collective bargaining agreement would do anything to alleviate the immediate intolerability of Butcher's circumstances.

The remainder of the opinion addresses several other issues raised on appeal, but the 4th Circuit affirmed the district court on all of those issues as well.

This case serves as yet another important reminder that if accommodation does not impose an undue hardship, employers are probably best served erring on the side of accommodation and not trying to argue against an employee's purported sincerely held religious beliefs.  What could have been a cost-free accommodation to Consol turned into years of expensive litigation that led to a six-figure jury verdict against them, even more costly appeal fees, and affirmation of the employee.

The case is EEOC v. CONSOL Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017).  Attorney Paul Mollica also briefly wrote about this case over at his blog.

Wednesday, June 14, 2017

EEOC Obtains Summary Judgment on Perceived As Disabled Claim and Argues 6th Circuit Previously Misapplied Test

In disability discrimination claims, there are two routes:  actually disabled or perceived-as disabled.  While the vast majority of disability claims are brought under 'actual' disabilities (whether they are qualified disabilities is a different story and often the subject of litigation), the Equal Employment Opportunity Commission ("EEOC") presented a case before a federal district court in Michigan (which resides in the 6th Circuit) of blatant perceived-as disabled discrimination, which also went against circuit precedent as this district court believes the 6th Circuit misapplied the law in a previous perceived-as disabled case.


In September 2013 the defendant, M.G.H. Family Health Center ("MGH") hired the plaintiff, Avis Lane, as a community outreach coordinator.  MGH normally required new hires to undergo a "post-offer" physical with its third-party medical evaluator, Workplace Health, prior to beginning work.  Because such a physical is post-offer and before employment begins, this did not pose a problem under the ADA as a medical exam/inquiry.

However, in this case, Lane was assigned employment duties before undergoing a physical, and Workplace Health subsequently recommended that Lane be placed on a medical hold--even though it initially did not receive a job description and was unaware Lane had begun to work.  The Physician Assistant that briefly examined Lane found that while she passed the physical examination itself, Lane's medical records revealed impairments that concerned him and warranted a "medical hold."  After receiving the job description, this PA determined that Lane should not begin work until a functional capacity evaluation (FCE) was performed.  Little did this PA know, Lane continued to work.

After 14 days of successful work, Lane was confronted by MGH officials who noted that Workplace Health had recommended Lane be put on a "medical hold" and undergo a costly FCE, which MGH would not pay for.  Lane offered to pay for the FCE, but MGH instead encouraged Lane to obtain a medical clearance from her own doctor, which she did.  However, despite Lane's full medical clearance, a revised job description with lower lifting requirements, and learning late that Lane had successfully performed the job responsibilities for her sedentary position for 5 weeks, the PA still refused to change his recommendation.  MGH then abruptly ended the individualized inquiry by firing Lane without paying for the FCE or at a minimum, following up with Lane on her offer to pay for the FCE.

The Court then noted that, "the trouble for MGH, then, is that direct evidence of its unlawful discrimination is laid bare:  MGH, by its own admission, fired Lane because it perceived her impairments as rendering her ineligible for the position--but it did so prior to the completion of any individualized inquiry by Workplace Health. ...  To make the evidence worse for MGH, after termination, MGH offered Lane her position back without any conditions, medical examinations, or further inquiry."  The Court then opined that the EEOC was entitled to summary judgment as to liability under the ADA and that the matter proceed to a jury trial for a damages determination.


The Court provided a relatively lengthy analysis, which is to be expected if they are refuting the appeals Court above them and going against circuit precedent.  This district court held that contrary to the 6th Circuit's decision in Ferrari v. Ford Motor Co., a plaintiff did not need to show she was regarded as limited in a major life activity, because such a requirement would turn the ADA Amendments Act of 2008 (ADAAA) "on its head."  Choosing not to follow Ferrari, the district court emphasized here that it was applying the ADAAA’s plain language “over case law that has been directly superseded by the Amendments Act and no longer is binding on the precise point at issue.”

Thus, even though the facts in this case were damn near a slam dunk for a plaintiff and their attorney(s), the legal analysis to reach this conclusion was more difficult for this court given how the 6th Circuit may have misapplied the law in a preceding case that is still considered 'good law.'

The case is Equal Employment Opportunity Commission v. M.G.H. Family Health Center, No. 1:2015cv00952 (W.D. Mich. 2017) and has since settled for $21,500, which means it won't be appealed to the 6th Circuit for clarity or new precedent.   For more, also read here.