Tuesday, September 27, 2016

EEOC Loses Another Battle Against Employer's Wellness Program

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


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

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

Legal Analysis

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

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

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

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

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

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

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

Wednesday, September 21, 2016

Illinois General Assembly Passes Legislation Limiting Use of Noncompete Agreements

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

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

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

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

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

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

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

Wednesday, August 24, 2016

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

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

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

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

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

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

Wednesday, August 17, 2016

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

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

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

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

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

The STAA Claim

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

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

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

The 10th Circuit also upheld the backpay award.

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

Monday, August 15, 2016

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

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

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

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

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.