Wednesday, February 10, 2016

Wisconsin Court of Appeals Unemployment Appeal Case: Applicant Did Not Conceal Facts About Wages

In somewhat of a rare case from the Wisconsin Court of Appeals, the Labor and Industry Review Commission's (LIRC) decision finding that an applicant for unemployment insurance, Nikki Wallenkamp, did not conceal wages and materials facts so a to pay a concealment fee and have future benefits redacted. 


The facts are somewhat difficult to follow, so I will bullet-point them for simplicity:

  • In 2011, Wallenkamp began filing for UI benefits
  • During Week 44 of 2012 through Week 3 of 2013 (November 2012-January 2013), Wallenkamp worked at Arby's
  • During two of the weeks Wallenkamp worked at Arby's, she also worked for Rocky Rococo's
  • Wallenkamp quit her job at Rocky Rococo's on December 1, 2012
  • Wallenkamp stopped working for Arby's on January 16, 2013 (Week 3 of 2013)
  • Arby's paid Wallenkamp for unused vacation time for the Week 4 of 2013
  • Wallenkamp then filed weekly claim certifications for UI benefits for the time period between Week 44 of 2012 and Week 4 of 2013 using the DWD's automated telephone claim filing system
  • The 4th question of the automated system asked: "During the week, did you work or did you receive or will receive sick pay, bonus pay or commission?"  Wallenkamp answered: "no"
To sum up the above facts, it is undisputed that Wallenkamp did work during the time period at issue, except during Week 4 of 2013.  Thus, the issue then was whether Wallenkamp concealed facts about her wages and employment status, with intent, while seeking UI benefits. 

The DWD conducted an investigation and determined that Wallenkamp was ineligible for benefits during the time period at issue, resulting in an overpayment of $1880.  The DWD also determined that Wallenkamp wa required to repay the overpayment, along with a concealment penalty of $282.  The DWD also found that Wallenkamp's concealment of wages and materials facts subjected her to a redaction of future benefits in the amount of $5264.  Wallenkamp subsequently appealed this decision and it went to a hearing before an Administrative Law Judge (ALJ).

At Wallenkamp's appeal hearing, she testified that she believed she correctly reported her employment and wages on her claim certifications.  When confronted with her responses to question 4, the ALJ told Wallenkamp that her answer "does not make any sense at all."  Wallenkamp further revealed that she was learning disabled and was confused by the discrepancy.  The ALJ then confirmed the DWD's determinations.  Wallenkamp then appealed to LIRC.

LIRC found that Wallenkamp incorrectly answered question 4 because she worked during the time period in question, did not report that she quit her employment with Rocky Rococo's in Week 48 of 2012, and did not report that she received vacation pay from Arby's in week 4 of 2013.  LIRC also noted, to the benefit of Wallenkamp, that, prior to week 43 of 2012, question 4 of the weekly claim certification simply asked, "Did you work?"  Beginning in week 43 of 2012, question 4 was modified to ask: "During the week, did you work or did you receive or will you receive sick pay, bonus pay or commission?"  LIRC determined that the modified question was "more susceptible to misinterpretation"; thus, Wallenkamp's incorrect answers were not sufficient evidence of an intent to conceal wages.

LIRC also found, contrary to the DWD and the ALJ, that Wallenkamp's testimony at her unemployment appeal hearing rebutted any presumption that she intended to defraud the DWD.  LIRC found that Wallenkamp:

(1)  credibly testified that she was confused by question 4; (2) was surprised when the ALJ informed her that she answered incorrectly; and (3) genuinely did not understand how to properly file her claims. 

Thus, LIRC upheld the DWD's requirement that Wallenkamp repay the $1880 overpayment, but reversed the portion of the DWD's order requiring Wallenkamp to pay a concealment fee and redacting her future benefits.  The DWD appealed this decision to circuit court and the circuit court affirmed LIRC, as did the Court of Appeals.

The case is WI Dept. of Workforce Development v. WI Labor and Industry Review Commission,
Docket: 2015AP000716     2016-02-02

Wednesday, February 3, 2016

January 2016 Edition of the Employment Law Blog Carnival is Live!

Attorney Robin Shea was the host of the first Employment Law Blog Carnival post of the new year!  Check it out here.

Thursday, January 28, 2016

New Mexico Federal Court Finds Employer Does Not Have to Accommodate Medical Marijuana Use

As of July 1, 2007, under the “Lynn and Erin Compassionate Use Act” (CUA), the State of New Mexico legalized the use of marijuana to treat serious health conditions.  Accordingly, the plaintiff in Garcia v. Tractor Supply Company, per his physician's recommendation, had been treating his HIV/AIDS with the use of medicinal marijuana after he was accepted into New Mexico’s Medical Cannabis Program, and received a Patient Identification Card.  The plaintiff applied for a position with the defendant employer and during his interview, the plaintiff advised the employer that he had HIV/AIDS and also that he participated in the Medical Cannabis Program.  The employer hired the plaintiff and sent him to a testing facility for a drug test.  After the plaintiff tested positive for marijuana, the employer terminated him.

After his termination, the plaintiff filed a complaint with the New Mexico Human Rights Division, alleging unlawful discrimination.  The plaintiff received a Determination of No Probable Cause from the New Mexico Labor Relations Division/Human Rights Bureau on April 15, 2015. Therefore, the plaintiff had properly exhausted his administrative remedies, which allowed him to file suit in court, which he did on July 13, 2015 in the First Judicial District Court of Santa Fe County, New Mexico, The plaintiff alleged that the defendant terminated him based on his serious medical condition and his physicians‟ recommendation to use medical marijuana. The defendant timely removed the case to federal district court in New Mexico on August 21, 2015 and then filed a Motion to Dismiss on on August 28, 2015, arguing that the plaintiff failed to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).

The issue before the court on the defendant's Rule 12(b)(6) motion was whether New Mexico‟s Compassionate Use Act (“CUA”) combined with the New Mexico Human Rights Act provides a cause of action for the plaintiff. Ever-present in the background of this case is whether the Controlled Substances Act preempts New Mexico state law.  The court, in granting the defendant's motion, held that New Mexico’s medical marijuana statute and the New Mexico Human Rights Act do not require employers to accommodate medical marijuana use because the CUA combined with the New Mexico Human Rights Act does not provide a cause of action for the plaintiff as medical marijuana is not an accommodation that must be provided for by the employer. 

Unlike Connecticut and Delaware, New Mexico did not include in their medical marijuana acts affirmative requirements mandating that employers accommodate medical marijuana cardholders, which the plaintiff acknowledged.  However, the plaintiff argued, unsuccessfully, that the CUA makes medical marijuana an accommodation promoted by the public policy of New Mexico, and therefore, medical marijuana is an accommodation that must be provided for by the employer under the New Mexico Human Rights Act.  In response, the defendant argued that the CUA only offers users of medical marijuana limited immunity against state criminal prosecution and imposes no duty on employers to accommodate the use of medical marijuana.  The court then looked to other courts who have decided this issue as it was one of first impression for them.

In finding that the defendant could not have terminated the plaintiff because of his serious health condition, the court held that, "[t]esting positive for marijuana was not because of Mr. Garcia‟s serious medical condition (HIV/AIDS), nor could testing positive for marijuana be seen as conduct that resulted from his serious medical condition. Using marijuana is not a manifestation of HIV/AIDS."

The defendant also argued that requiring accommodation of medical marijuana use conflicts with the Controlled Substances Act (“CSA”) because it would mandate the very conduct the CSA proscribes, but the court noted that the plaintiff not merely seek state-law immunity for his marijuana use. Rather, he seeks the state to affirmatively require the defendant to accommodate his marijuana use.

Thus, it does not seem like these cases are likely to succeed in any state where the medical marijuana act does not affirmative state a mandate that employers need to accommodate medical marijuana cardholders.

Wednesday, January 20, 2016

Brillion, Wisconsin-Based Ariens Co. Refuses to Allow Unscheduled Prayer Breaks for Muslim Employees

Catching local headlines recently is a Wisconsin company, Ariens Co., based out of Brillion, Wisconsin that previously allowed for dozens of its Muslim employees to take unscheduled breaks for prayer and recently 'changed' this practice and is requiring enforcement of its actual written policy of only two, 10-minute breaks per work shift.  The "change" in the policy affected 53 employees, and one article says that ten of these employees wished to continue working for Ariens under the 'new' policy.  The story broke on about January 17, 2016 and in an article posted yesterday, Ariens is stating that they will not allow unscheduled prayer breaks.

Under current state and federal law addressing religious accommodation, an employer or other covered entity is required to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.  Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

As you can see from the two articles, Ariens is attempting to state how the unscheduled prayer breaks serves as an undue hardship and causes "more than a minimal burden on the operations of the employer's business" when they say that:
"...if even one person walks away from their work station, it can disrupt production.
"If I am on a team of 10 assemblers, and two of them clock out for a prayer break, all 10 people have to stop," Ariens said.
Over a period of a year, that would cost the company more than $1 million in lost time, according to Ariens.
"And that's if these are five minute breaks. If you are going to leave your work station in a plant that's 360,000 square feet, walk to the bathroom to wash your feet, take your time to pray, get dressed again and get ready to go back to work, it's very difficult to do in five minutes," [Dan Ariens, the company's president] said."
This is certainly an interesting issue and it'll be interesting to see if this goes to litigation or if the company and its employees can come to a compromise short of litigation.

Tuesday, January 19, 2016

Federal Court Allows Hostile Work Environment Claim Based on Customer's Harassment of Employee to Proceed to Trial Against Costco

The Equal Employment Opportunity Commission ("EEOC") filed suit on behalf of Dawn Suppo alleging that Costco subjected Suppo to a hostile work environment by permitting a customer, Thad Thompson, to harass and stalk her while she was at work.  The EEOC further alleged that Costco constructively discharged Suppo because she was forced to leave work due to the harassment.  Costco filed a motion for summary judgment and for additional discovery, and Chief Judge Ruben Castillo of the Northern District of Illinois granted in part and denied in part both motions.  The EEOC's hostile work environment claim is allowed to proceed to trial, but not their constructive discharge claim as Suppo was terminated and did not resign her employment.


Suppo worked at Costco for ~15 months beginning in 2009, when she was hired as a seasonal employee.  In May 2010, she was hired as a regular, part-time employee and worked as a Front End Assistant until September 6, 20111, when she began a leave of absence from which she never returned.

Costo maintains anti-harassment and reporting policies, which prohibits all forms of harassment and require employees to report any conduct that they consider to be harassing and this policy covers conduct by customers as well as employees, and harassment or stalking by a customer is treated the same as harassment or stalking by an employee.  Costco had a "zero tolerance" stance regarding harassment and retaliation in the workplace along with an open door policy for reporting such.

Suppo's first interaction with Thompson occurred around the end of May or early June 2010.  According to Suppo, Thompson told her that he had not seen her before and that he did not know she worked at Costco; he asked her who the man was he had seen her shopping with at Costco, which was her father Marty Suppo.  Thompson joked that Suppo was stalking him by being in the store at the same time as him.  Over the next few months, Thompson and Suppo continued to have interactions when Thompson was shopping at the store.

Over the next several months, until September 2011, there were numerous more occasions whereby Thompson allegedly harassed Suppo and engaged in awkward and inappropriate interactions, which Suppo and her father both complained.  It all came to a head on September 1, 2011 when Suppo claims she caught Thompson videotaping her in the store, which he denied and store cameras did not catch.  Suppo then began taking off work, claiming she was afraid to report to work and she then filed a second police report against Thompson.

Costco claims that they called Suppo to offer ways for her to return to work and feel safe, but this was disputed by Suppo.  Suppo then obtained an order of protection against Thompson from Circuit Court of Cook County and then requested and was placed on an extended medical leave pursuant to Costco's employment agreement, which permits employees to take at least one year of personal medical leave.  Costco completed an investigation and determined that Suppo's allegations were inconclusive, but notified Thompson, by letter, that they decided it was best that he no longer shopped at the Glenview warehouse.  Sometime later, Suppo was shopping at a neighboring Costco and happened to run into Thompson who confronted Suppo and began yelling at her, which prompted Costco to cancel his membership.

On September 20, 2012, Costco advised Suppo that her 1-year leave of absence was expiring and offered to discuss with her whether she could return to work or if she needed some additional accommodation, including leave.  In response, Suppo provided documentation from her health care provider who stated that she would be unable to return to work for an additional one to two years.  Suppo was then informed that Costco did not provide indefinite leave as an accommodation and that it was likely Costco would have to terminate her employment, which was done on November 19, 2012.

On August 25, 2014, the EEOC filed this action on behalf of Suppo, asserting that Costco subjected her to a hostile work environment based on Thompson's harassment and that Suppo was constructively discharged because she was forced to leave her job due to the harassment.  Costco then moved for summary judgment on both of those claims.


A.  Hostile Work Environment

Title VII prohibits employers from discriminating against employees because of their "race, color, religion, sex, or national origin."  To prevail on a hostile work environment claim, the plaintiff must establish that she was subjected to conditions that were either "severe or pervasive" and that were "both objectively and subjectively offensive."  The Court should consider the totality of the circumstances, "including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."  The Court must also find a basis to impose liability on the employer as they are held strictly liable for harassment inflicted by supervisors, but if the harassment is committed by someone other than a supervisor--whether it be "an employee, independent contractor, or even a customer"-- a negligence standard applies.

To meet this standard, the plaintiff must show that the employer was "negligent either in discovering or remedying the harassment."  An employer is not considered to be on notice of the harassment "unless the employee makes a concerted effort to inform the employer that a problem exists."  If the employer took "prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring," the employer cannot be held liable.  The court noted that this case presented the proverbial "swearing contest," that Suppo's account is to be accepted at the summary judgment stage and weighing the evidence and determining the credibility of witnesses are functions of the jury, not the Court.

Because the Court was not able to conclude as a matte of law that Costco took reasonable steps to end the alleged harassment, their request for summary judgment on the hostile work environment claim was denied.

B.  Constructive Discharge

To prevail on a claim for constructive discharge, the plaintiff must show "that he was forced to resign because his working conditions, from the standpoint of the reasonable employee, had become unbearable."  The 7th Circuit sets a high bar to establish a constructive discharge claim, because "employees are generally expected to remain employed while seeking redress."  Thus, the alleged working conditions must be "even more egregious than that required for a hostile work environment claim."  The 7th Circuit recognizes two forms of constructive discharge:  where the employee resigns due to alleged discriminatory harassment and when the employee resigns in the face of an imminent termination by the employer (i.e., the "handwriting was on the wall and the plaintiff quit just ahead of the fall of the axe.").  Both of these have one thing in common:  the involve the employee resigning.  Suppo never resigned in this case.  The EEOC attempted to argue, without any support, that Suppo stopped working and this was tantamount to constructive discharge.  Because Suppo never resigned, summary judgment was granted to Costco on the constructive discharge claim.

The remaining parts of the opinion dealt with discovery issues pertaining to Costco's seeking to delve further into Suppo's medical history as it pertained to the allegations she made about the hostile work environment and damages.  The Court granted in part and denied in part some of what Costco was seeking in discovery, which is a significant victory for Costco as this type of motion is usually denied in this territory.

The case is Equal Employment Opportunity Commission v. Costco Wholesale Corp., Case No 14 C 6553 (N.D. Ill.)

Tuesday, January 12, 2016

Western District of Wisconsin Rejects EEOC's Challenge to Employer's Wellness Program

In a case that caught a lot of attention recently, a federal district court in Wisconsin dealt the Equal Employment Opportunity Commission a blow when a judge there granted the defendant's motion for summary judgment in a case involving the issue of wellness plans--a case also not yet addressed by the 7th Circuit.


The defendant, Flambeau, Inc., manufactures and sells plastics internationally.  Flambeau offers its employees various employee benefits, one of which is the ability to participate in its health insurance plan--a plan that is self-funded and self-insured, but administered by United Medical Resources.  Participation in the health insurance plan is wholly voluntary and employees are not required to participate in the plan as a condition of their employment.  The charging party in this matter, Dale Arnold, participated regularly in the insurance plan.

In October 2010, Flambeau established a "wellness program" for those employees that wanted to enroll in their health insurance plan for the 2011 benefit year.  The wellness program had 2 components:  1) a health risk assessment, and a 2) biometric test.  The health risk assessment required each participant to complete a questionnaire about their medical history, diet, mental and social health and job satisfaction.  The biometric test was similar to a routine physical exam.  The information gathered through the wellness program was used to identify the health risks and medical conditions common among the plan's enrollees and, except for information regarding tobacco use, the health risks and medical conditions identified were reported to the defendant in the aggregate, so that it did not know any participant's individual results.  This information was then used to estimate the cost of providing insurance, set premiums, evaluate the need for stop-loss insurance, adjust co-pays, etc.

For 2011, the first year the wellness program was in place, Flambeau promoted the program by giving employees a $600 credit if they participated and completed both the health risk assessment and the biometric test.  For 2012 and 2013, Flambeau eliminated the $600 credit and instead adopted a policy of offering health insurance only to those employees that completed the wellness program.  However, participation in the wellness program was not a condition of continued employment, but Flambeau offered company-subsidized health insurance under its benefit plan to wellness program participants exclusively.

For the 2011 benefits year, Arnold participated in the wellness program, enrolled in defendant's insurance plan and received the $600 credit.  However, for the 2012 year, which was also the first year participation in the wellness program was required, Arnold failed to complete the program's assessment and tests by the established deadline and, thus, Flambeau discontinued his insurance.  Flambeau gave Arnold the option of paying the COBRA rate for continued coverage through 2012, but Arnold declined because he though the insurance under Flambeau's plan was too expensive without the subsidy.

After losing his coverage, Arnold filed a union grievance, a complaint with the Department of Labor and a complaint with the EEOC.  Flambeau then decided to reinstate Arnold's insurance if Arnold completed the plan's required testing and assessment and made his premium contributions.  Arnold agreed and Flambeau retroactively reinstated his insurance, but the EEOC stilled filed this lawsuit on behalf of Arnold asserting that the plan's testing requirement violated section 12112(d)(4)(A)'s ban on employer mandated medical examinations.


The sole issue in the case surrounds section 12112(d)(4)(A), which states that a "covered entity shall not require a medical examination ... unless such examination is shown to be job-related and consistent with business necessity."  The EEOC argued that Flambeau violated this section by requiring its employees to complete the wellness program's health risk assessment and biometric screening tests before they could enroll in their health insurance plan.  Flamebeau argued that its practice of conditioning enrollment in its benefits plan on completion of the wellness program is protected by the ADA's "safe harbor" for insurance benefit plans set forth in 42 U.S.C. section 12201(c)(2), which provides, in relevant part, that the ADA "shall not be construed to prohibit or restrict" an employer from establishing or administering "the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks." 


As the Court noted a couple times in the opinion, the application of the safe harbor provision to employer-sponsored wellness programs is a matter of first impression in this circuit.  Thus, Flambeau urged the court to follow the approach taken by courts in other jurisdictions, specifically, Seff v. Broward County, Florida, 691 F.3d 1221 (11th Cir. 2012).

In discussion the two cases proffered by Flambeau, the court discussed the differences between two sections of the ADA:  12201(c)(2) and 12112(d)(4)(B).  Section 12201(c)(2)'s safe harbor provides an exception for medical examinations that are tied to employers' insurance plans, while section 12112(d)(4)(B) provides an exception for medical examinations that are part of "employee health programs" regardless whether the employer sponsors any sort of employee benefit plan at all.  The court noted, "in some instances the exception and protections set forth in 12201(c)(2) and 12112(d)(4)(B) may overlap but the latter exception is rendered irrelevant only when the wellness program at issue is included as part of an employer's benefit plan.  That is, when an employer sponsors a wellness program that is NOT part of the employer's benefit plan, it cannot avail itself of section 12202(c)(2)'s safe harbor, but it might still rely on the employee health program exception in sectioon 12112(d)(4)(B) if it satisfies that provision's requirements.

The EEOC unsuccessfully attempted to argue that section 12201(c)(2) should have been construed so narrowly as to render the wellness program requirements to fall outside the safe harbor provision, regardless whether the wellness program is part of an employer's insurance benefit plan.  Unpersuaded, the court then had to decide whether the wellness program requirement is a "term" of defendants' insurance benefit plan and is based on "underwriting risks, classifying risks, or administering such risks."  42 U.S.C. 12201(c)(2).  The court held that the wellness program requirement is clearly a "term" of defendant's benefit plan.

The case is EEOC v. Flambeau, Inc., No. 14-cv-638-bbc (W.D. Wisc.) and more can be found about the case here and here.

Wednesday, January 6, 2016

8th Circuit Holds Employee Failed to Show Monetary Loss, Upholds SMJ in FMLA Suit

The Family and Medical Leave Act ("FMLA") entitles eligible employees to twelve (12) workweeks of unpaid leave during any twelve-month period under certain enumerated circumstances.  These circumstances include the birth or adoption of a child, the illness of an immediate family member, or the development of "a serious health condition that makes the employment unable to perform the functions of [her] position."  With certain exceptions, an employee is entitled to be restored to the same or equivalent position as she held before the period of leave with equivalent terms and conditions of employment.  If an employee exhausts FMLA leave and is "unable to perform an essential function of the position because of a physical or mental condition," the employer may terminate her employment.

The FMLA also prohibits certain acts and permits employees to enforce those prohibits through a private right of action (i.e., filing suit in federal district court).  For instance, an employer may not "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the FMLA.  FMLA interference includes "not only refusing to authorize FMLA leave, but discouraging an employee from using such leave."  Indeed, much litigation is spent over whether an employer's action amount to the level of discouragement so as to give rise to an FMLA interference claim.  An employer who violates the FMLA can be held liable for "actual monetary losses sustained by the employee," plus interest, costs, and attorney's fees.  Other type of damages, such as damages for emotional distress, are not available.

In Hasenwinkel v Mosaic, 8thCir, December 29, 2015, the plaintiff, Bonnie Hasenwinkel, sued her former employer, Mosaic, for allegedly interfering with her rights under the FMLA and for allegedly terminating her employment in violation of public policy.  Hasenwinkel obtained FMLA leave on seven (7) occasions.  Mosaic never rejected an explicit request for leave, but Hasenwinkel contends that on one occasion the company forced her to return from FMLA leave and then punished her for taking it.  Hasenwinkel further alleged that she believes Mosaic gave her a negative informal evaluation and one unsatisfactory rating in retaliation for using FMLA leave and with a design to make her quit.  Hasenwinkel also received three (3) formal corrective actions that she claims were retaliation for taking FMLA leave.  Hasenwinkel received other written warnings, but admitted to those events but contended those punishments were inappropriate and unfair.  Hasenwinkel then alleged she felt treated differently than other nurses and experienced personal slights.

Hasenwinkel had neck surgery in November 2011 and never return to work for Mosaic.  Hasenwinkel exhausted her FMLA benefits when she was unable to return to work on January 8, 2012.  Fortuitously for Hasenwinkel, Mosaic changed its method for calculating FMLA accural and she was granted an additional 12 weeks of FMLA leave.  Hasenwinkel could not recover during this second period of FMLA leave, and she again exhausted her FMLA leave on April 2, 2012.  Mosaic gave Hasenwinkel an additional 90-day medical leave of absence, but she was still unable to work after 90 days.  Thus, Mosaic terminated her employment on July 2, 2012.

Hasenwinkel sued Mosaic under the FMLA and Iowa common law, claiming that Mosaic interfered with her FMLA rights by denying her benefits to which she was entitled and discriminating against her for taking FMLA leave.  The district court granted summary judgment for Mosaic, concluding that Hasenwinkel received all of the benefits to which she was entitled under the FMLA, that the alleged discrimination did not result in an adverse employment action, and that the FMLA 'preempted[ed]" her state-law claim.  The 8th Circuit agreed.

To have succeeded on an FMLA interference claim, Hasenwinkel would have had to show that she was eligible for FMLA leave, that Mosaic was on notice of her need for FMLA leave, and that the company denied her benefits to which she was entitled to under the FMLA.  Only the latter two requirements were disputed in this case.  The 8th Circuit found that summary judgment was proper because Hasenwinkel exhausted her FMLA benefits--in fact, she received three times the amount of leave required by law.

With respect to Hasenwinkel's claim that Mosaic interfered with her FMLA rights by discriminating against her because she took FMLA leave.  Because Hasenwinkel had no direct evidence of this treatment, she had to proceed under the McDonnell Douglas burden-shifting scheme and had to show that she engaged in activity protected under the Act, that she suffered a materially adverse employment action, and that a causal connection existed between the employee's actions and the adverse employment action.  As stated above, Hasenwinkel based this claim on 3 items:  1) her termination, 2) her one-month suspension for failure to report mold in a group home, and 3) generally unpleasant treatment by her supervisors.

The 8th Circuit found none of these three things amounted to interference as her termination was after taking 3x FMLA leave required under law and still not being able to work.  With respect to the one-month suspension, the court noted that, "a plaintiff proceeding under the FMLA must show actual monetary loss to recover," unlike such claims under Title VII where non-pecuniary damages may be recovered.  The FMLA "provides no relief unless the employee has been prejudiced by the violation."  The court held that Hasenwinkel had not presnted evidence of any tangible loss actually incurred and directly caused by her suspension.  The only thing Hasenwinkel presented toward this end was a "missing paycheck," that was later made whole when Mosaic furnished backpay.

The court finally dismissed Hasenwinkel's claim to being treated generally unpleasant by stating this did not rise to the level of a materially adverse employment action and the FMLA does not impose a "general civility code for the American workplace."

Summary judgment affirmed.

Tuesday, December 15, 2015

5th Circuit Holds Rescission of Resignation Can Sometimes be an Adverse Employment Action

The Court of Appeals for the Fifth Circuit reversed a grant of summary judgment from a lower court, holding that "rejecting an employee's rescission of resignation can sometimes constitute an adverse employment action, and appellant has presented a substantial conflict of evidence on the question of whether the employer would have taken the action 'but for' the protected activity."


The plaintiff, Tyrikia Porter, experienced a slew of comments and physical behavior from the Defendant's newly-hired Executive Director, Wayne Thibodeaux.  Porter's direct supervisor was Jan Yakupzack, and Porter reported "some" of Thibodeaux's behavior to her, but did not file a formal grievance.  Porter then tendered her resignation on June 6, 2012, to take effect on August 1, 2012.  Porter was aware that other employees had been allowed to rescind resignations, but at the time of her resignation, Porter did intend to actually leave.  On July 25th, Porter requested that her resignation be put off until September 1st, so that she could complete projects, train staff, and assist in inspections.  This request was approved by Thibodeaux the same day, thus extending her resignation to September 1, 2012.

In an unrelated matter, Porter testified at a grievance hearing about Thibodeaux's behavior toward her and the Chairman of the HTHA Board of Commissioners, Allan Luke, asked Porter if she intended to pursue any charges, and asked her to consider rescinding her resignation.  Yakupzack also asked Porter to consider rescinding her resignation.  Thus, on September 4, 2012, Porter wrote a letter stating that she had "decided to rescind [her July 25th] resignation notice and remain an employee" of the HTHA.  This letter was forwarded from Yakupzack to Thibodeaux, who further stated that she supported retaining Porter.  Acting in his sole discretion, Thibodeaux denied the request on September 10th.  This is the only time an employee was separated from the HTHA against Yapupzack's advice.

As for the reason Thibodeaux rejected the rescission, he stated that he had "determined that that person was not satisfied or happy being an employee of the ... Housing Authority."  However, Porter stated that she was in fact happy with her job, and believes her rescission was not accepted because of her testimony at the hearing.

Porter then filed a charge with the EEOC alleging that she was sexually harassed until her "discharge" and was discriminated against in "retaliation for opposing practices made unlawful under Title VII."  She received a Right to Sue letter and then filed suit in the Eastern District of Louisiana.  The HTHA moved for summary judgment, which was granted, which led to Porter's appeal to the 5th Circuit.


To establish a prima facie claim for retaliation, a plaintiff must show:

(1) she was engaged in protected activity;
(2) she was subjected to an adverse employment action; and
(3) there was a causal connection between the protected activity and the adverse employment action.

There was no dispute about the first element as it is clear that Porter's testimony at the hearing is engaging in protected activity.  However, the 2nd and 3rd elements are at issue and disputed.

The seminal U.S. Supreme Court case of Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) discussed and clarified that the "adverse employment action" is in fact NOT limited to "workplace-related or employment-related retaliatory acts and harm.  The key question is whether the challenged action is "materially adverse" in that it is "harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination."  The standard if objective, but the "significance of any given act of retaliation will often depend upon the particular circumstances.  Context matters, and this is how Porter prevailed in this appeal, as alluded to above in the facts section.

In response to the argument that an employee has no statutory or contractual right to rescind a letter of resignation, and, therefore, rejection of the rescission is never an adverse employment action, the 5th Circuit pointed out:

"Most at-will employees have no right to employment in the first place, but not hiring them on their basis of their engagement in protected activities is nonetheless the ultimate adverse employment action, even under the strict pre-Burlington Northern standard for what counts.  Just as an at-will employer does not have to hire a given employee, an employer does not have to accept a given employee's rescission.  Failing to do so in either case because the employee has engaged in protected activity is nonetheless an adverse employment action.
In considering context in Porter's case, the Court found that "...circumstances suggest that a reasonable employee in Porter's shoes might have legitimately expected that her rescission of resignation would be accepted."  i.e., The Chairman of the HTHA, Allan Luke, asked her to rescind her resignation, as did her immediate supervisor, Yakupzak, Porter's request to stay on a month longer than her initial effective resignation date was immediately approved, and Porter identified four (4) individuals who had resigned and then been allowed to rescind their resignations.  Thus, the Court held that Porter satisfied the second element.


The second and last issue the Court had to address, which the lower court did not address, is whether there was a causal connection between the protected activity and the adverse employment action.

To demonstrate pretext and avoid summary judgment, Porter had to show "'a conflict in substantial evidence' on the question of whether the employer would not have taken the action 'but for' the protected activity."

In quickly finding this issue in favor of Porter, the Court noted that, in the 5th Circuit, temporal proximity between protected activity and alleged retaliation is sometimes enough to establish causation at the prima facie.  There was a six and a half week timeframe between Porter's testimony (protected activity)  and her denial of her rescission (adverse employment action), and thus, this was deemed sufficient to satisfy the prima facie case of causation.

The case is Porter v Houma Terrebonne Housing Authority Board of Commissioners, 5thCir, November 17, 2015, Higginbotham, P.

Termination and Eligibility for Unemployment Insurance in Wisconsin

A significant portion of my practice is handling unemployment insurance appeals for both employees and employers.  Also, as I have written previously on this blog, there were changes in recent years to the law pertaining to unemployment compensation in Wisconsin which affected the eligibility of benefits to people who were terminated (i.e., "fired") from their job and as that law has been interpreted and addressed, I find it useful to write and educate about the topic as many people Google the topic when they are going through the process.  While I believe it good to educate yourself on these topics, nothing replaces competent and reliable legal representation!

When determining whether an employee/claimant is eligible for benefits based upon their discharge, the analysis first begins with whether the employee was discharged for misconduct by engaging in any of the actions enumerated in Wis. Stat. sec. 108.04(5)(a)-(g).  If those provisions do not apply, it is then determined whether the employee's actions constitute misconduct as originally defined by the Wisconsin Supreme Court in Boyton Cab Co. v. Netback, 237 Wis. 249, 259-60, 296 N.W. 636 (1941).  I have written about Boyton Cab Co. previously here.

If "misconduct" is not found, it is then determined whether the discharge was for substantial fault by the employee connected with the employee's work, as set forth in Wis. Stat. sec. 108.04(5g).  I have written about "misconduct" and "substantial fault previously here.  Substantial fault was the newer addition to Wisconsin unemployment law and includes those acts or omissions of an employee over which the employee exercised reasonable control and that violate reasonable requirements of the employer, but it does not include minor infractions of rules unless an infraction is repeated after warning, inadvertent errors, or any failure of the employee to perform work because of insufficient skill, ability, or equipment.  Wis. Sat. sec. 108.04(5g).  This is very technical and complex legalese, but these cases come down to the facts and how they are argued during an appeals hearing, which makes having legal representation so important and crucial.  

Wednesday, December 9, 2015

Henry Ford and Living Wage