Wednesday, April 23, 2014

9th Circuit Affirms Summary Judgment, Holding Employee Can Affirmatively Decline Use of FMLA Leave

In another case highlighting how tricky and complex FMLA leave can be, the Court of Appeals for the Ninth Circuit  affirmed a district court's judgment, after a 6-day jury trial, denying plaintiff's motion for summary judgment because an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection.  The Court also held that the district court did not err in denying the plaintiff's motion for judgment as a matter of law because, viewing the evidence in the light most favorable to the jury's verdict, there was substantial evidence that the plaintiff elected not to take FMLA leave.

As is the case with almost all employment law matters, the facts of this case are important in understanding the 9th Circuit's decision:

The plaintiff, Maria Escriba, worked for the defendant, Foster Poultry Farms, Inc., a processing plant in California, for 18 years and was terminated in 2007 for failing to comply with the company's "three day no-show, no-call rule" after the end of a previously approved period of leave, which she took to care for her ailing father in Guatemala.

The reason this matter survived summary judgment and went to a jury trial is because there was a material dispute of fact concerning the characterization of Escriba's request for a two-week period of leave and whether she affirmatively declined FMLA leave.  Escriba filed suit under the FMLA and its California state law equivalent claiming her termination was an unlawful interference with her rights under the FMLA.  Foster Farms contended that, although Escriba provided an FMLA-qualifying reason for taking leave, she explicitly declined to have her time off count as FMLA leave.

The facts are discussed for 5 pages in the opinion but the key fact was Foster Poultry Farms' leave policy which requires an employee who requests FMLA-protected leave to first exhaust paid vacation time.  The initial paid leave runs concurrently, counting against both an employee's balance of vacation time and his or her FMLA-protected leave.  A labor relations manager with Forest Farms testified that if an employee elects to take vacation time and expressly declines FMLA-protected leave, the company "can't force [the employee] to take a leave if they're requesting to take the availability of their vacation because that would be reducing a benefit that [the employee] would have."  By first exhausting paid vacation time, an employee thus preserves the balance of any and all available FMLA time.  This fact became key as ultimately the jury believe Escriba sought to preserve all of her FMLA leave time by first taking paid vacation time and expressly declining FMLA leave in the beginning.

Because Escriba never later sought to take FMLA leave, she was terminated per Forest Poultry's attendance policy.  However, Escriba unsuccessfully attempted to argue that she was automatically entitled to FMLA leave during her entire time because Forest Poultry was aware her leave was for a reason that qualified under the FMLA.  However, the 9th Circuit ultimately held that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

The case is Escriba v. Foster Poultry Farms, Inc., 2014 BL 50661, 9th Cir., No. 11-17608, 2/25/14).

April Edition of the Employment Law Blog Carnival is LIVE!

Attorney Tim Eavenson over at the "Current Employment" blog hosted this month's edition of the employment law blog carnival (which I contribute to just about every month).  Just it out here!

Monday, April 14, 2014

Court Holds Placing Pregnant Employee on Paid Leave Not a "Per Se Reasonable Accommodation"

A federal district court in California granted in part and denied in part a defendant-employer's Rule 12(b)(6) motion to dismiss a plaintiff's claims, primarily based on pregnancy discrimination, holding that their placing the plaintiff, who was pregnant and merely had lifting restrictions, on total disability leave was not a reasonable accommodation.

The facts of the case are simple.  The plaintiff, Azucena Tapia, became pregnant and when the pregnancy advanced, she informed the employer, Artistree, Inc. and Michaels, Inc., that she needed accommodation, including no heavy lifting or pushing and a 5-10 minute restroom break every 3 hours.  Tapia gave the employer a doctor's note in support of these accommodations, however, the employer allegedly failed to engage in a good faith interactive process to determine whether an appropriate accommodation would be possible, telling Tapia that they would not accommodate her restrictions or attempt to find a position where she could continue to work for the duration of her pregnancy.  Instead, they told her she should have her doctor place her on total disability, which she did.

Plaintiff claimed she could have worked throughout her pregnancy had defendants accommodated her restrictions as originally recommended.  Tapia did not work the remainder of her pregnancy, gave birth, and while she was in the hospital recovering, an HR rep called Tapia and told her that she could lose her job if she did not return to work that same day.  Defendants allegedly did not offer her an accommodation when Tapia explained that she would not be able to return to work immediately due to her C-section.  Tapia was terminated 13 days later with defendants citing  job abandonment. 

In denying defendants' motion to dismiss plaintiff's pregnancy discrimination claims, the court stated that, "it is not clear that Plaintiff was offered a 'reasonable accommodation.'  It is true that 'in appropriate circumstances, reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment.'"  However, the court stated, "paid leave is not a 'per se reasonable accommodation," noting that this employer offered only one possibility to the Plaintiff:  take total disability leave for the duration of her pregnancy.  The court then noted that the employer never sought to engage in the "interactive process" required, nor attempted to determine whether Plaintiff's disability could have been accommodated in another way. 

The court also noted precedent which held leave is a reasonable accommodation when it is likely the employee will be able to return to work and stated that this employer should have known that the Plaintiff would be giving birth around August 2012 and would need additional leave following the birth.  Thus, the court held that granting the Plaintiff leave for the duration of her pregnancy only to require her to return to work within two weeks of giving birth via C-section does not appear to be a reasonable accommodation.  Therefore, the employer's motion to dismiss plaintiff's claims regarding pregnancy discrimination was denied.

The case is Azucena Tapia v. Artistree, Inc., et al., Case No. CV 14-01381 DDP

Thursday, April 10, 2014

Wisconsin Social Media Protection Act

Wisconsin Governor Scott Walker signed the Wisconsin Social Media Protection Act (2013 Wisconsin Act 208) into law this past week, giving employees in Wisconsin more privacy in the workplace, though the legislation provides several exceptions for employers. 
The new law prohibits employers from doing the following:
1. Request or require an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account.

2. Discharge or otherwise discriminate against an employee for exercising the right under subd. 1. to refuse to disclose access information for, grant access to, or allow observation of the employee’s personal Internet account, opposing a practice prohibited under subd. 1., filing a complaint or attempting to enforce any right under subd. 1., or testifying or assisting in any action or proceeding to enforce any right under subd. 1.
3. Refuse to hire an applicant for employment because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.
However, as stated above, the law does provide for several exceptions which does allow an employer to obtain access to an employee's social media or terminate an employee's employment for failing to provide access.  Those exceptions are in the following situations:
1. Requesting or requiring an employee to disclose access information to the employer in order for the employer to gain access to or operate an electronic communications device supplied or paid for in whole or in part by the employer or in order for the employer to gain access to an account or service provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes.

2. Discharging or disciplining an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization.

3. Subject to this subdivision, conducting an investigation or requiring an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account, if the employer has reasonable cause to believe that such a transfer has occurred, or of any other alleged employment−related misconduct, violation of the law, or violation of the employer’s work rules as specified in an employee handbook, if the employer has reasonable cause to believe that activity on the employee’s personal Internet account relating to that misconduct or violation has occurred. In conducting an investigation or requiring an employee to cooperate in an investigation under this subdivision, an employer may require an employee to grant access to or allow observation of the employee’s personal Internet account, but may not require the employee to disclose access information for that account.
4. Restricting or prohibiting an employee’s access to certain Internet sites while using an electronic communications device supplied or paid for in whole or in part by the employer or while using the employer’s network or other resources.
5. Complying with a duty to screen applicants for employment prior to hiring or a duty to monitor or retain employee communications that is established under state or federal laws, rules, or regulations or the rules of a self
regulatory organization, as defined in 15 USC 78c (a)(26).
6. Viewing, accessing, or using information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain.

7. Requesting or requiring an employee to disclose the employee’s personal electronic mail address.
Then, interestingly enough, the legislation states that this law does not apply to those in the financial services industry who use the account or device to conduct business that is subject to regulation and it also does not apply to situations where the employer "inadvertently" (yes, the statute uses the term "inadvertently") accesses an employee's personal account through a system the employer pays for to monitor the network, " so long as the employer does not use that access information to access the employee's personal Internet account." 
The law also provides protections for students and prospective students in the educational realm from having to disclose the same, as well as tenants in the landlord-tenant realm--both of which have exceptions as well. 
Enforcement will be handled by the Equal Rights Division ("ERD"), which is the Wisconsin administrative agency typically associated with enforcing the Wisconsin Fair Employment Act ("WFEA").  However, the penalties for a violation found under this Act are rather weak as a person found to have violated this law "may be required to forfeit not more than $1,000."  The word "may" is emphasized because it's not mandatory (the word "shall" is used to require such a fine).  If an employee is discharged, or otherwise discriminated against in violation of this law, or an applicant not hired in violation of the law or a student is expelled, suspended or otherwise penalized in violation of this law, a complaint may be filed and it will be handled like a discrimination complaint with the ERD with the remedy being the same remedy afforded in discrimination cases:  make-whole.  The same for violations in the landlord-tenant relationship if a violation is found.
As is the case with any new law, it'll be interesting to see this law enforced and litigated.  Either way, it is good to see Wisconsin keep ahead of trends in the law as technology always presents unique challenges for the law.  As of last year, only 13 states had similar laws with only another 25 states merely considering such legislation.

Tuesday, April 8, 2014

NLRB Holds Hospital's Rule Barring "Negativity" Violates NLRA

On April 1, 2014, the National Labor Relations Board ("NLRB") ruled that Hills and Dales General Hospital's work rules barring "negativity" and requiring employees to represent their employer "in the community in a positive and professional manner" violated the National Labor Relations Act as the three rules instituted by the hospital were overbroad and ambiguous, and could be interpreted by employees as prohibiting activity protected by Section 7 of the NLRA.

The rules implemented stated as follows:

We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

We will represent Hills and Dales in the community in a positive and professional manner in every opportunity.

We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

The hospital had enacted these three rules in response to low employee morale and in an attempt to change the Hospital's culture.  The remedy ordered in this case was that the Hospital had to rescind the unlawful rules. There were no claims that the Hospital had disciplined any employee for violating those rules. An employer who disciplines an employee for violating an unlawful rule will be ordered to, among other remedies, revoke such discipline and "make whole" the disciplined employee for the employee's economic losses.

11th Circuit Reverses Summary Judgment, Holds District Court Applied Incorrect Standards on Plaintiff's ADA and ADEA Claims

In a decision overturning a district court's grant of summary judgment of plaintiff Anthony Mazzeo's age discrimination and disability discrimination claims, the Court of Appeals for the Eleventh Circuit held that the plaintiff presented enough evidence to make out prima facie cases under the ADEA, ADAAA and the state-equivalent claims as the lower district court applied incorrect standards in each claim in dismissing the claims.

Mazzeo worked for defendant Color Resolution Int'l, LLC ("CRI") providing technical and sales service to its customers in Florida and southern Georgia.  In 2007, Mazzeo was diagnosed with a herniated disc and torn ligaments in his back.  The herniated disc caused Mazzeo pain along his lower back, which spread down his right leg and intermittently affected his ability to walk, sit, stand, bend, run, and lift objects weighing more than 10lbs.  Mazzeo discussed his condition with CRI in 2008 and then in early 2009, Mazzeo discussed his potentially needing back surgery which would require him to miss 2 weeks of work and have 3-to-6 months of restricted activity.  Mazzeo's supervisor, a Mr. Boyd, allegedly remarked that such a procedure would "likely require a longer recovery period of six to eight weeks." 

On February 25, 2009, Mazzeo informed Mr. Boyd that his back surgery had been scheduled for the second week of March.  The very next day, Mr. Boyd initiated Mazzeo's termination paperwork.  CRI cited declining sales revenue, over a period of years, as the reason for Mazzeo's termination.  Mazzeo was 46-years-old at the time of his termination.  A mere ten days after Mazzeo's termination, CRI offered a similar sales position to a 23-year-old recent college graduate, who began working for CRI on March 23, 2009.

In beginning their discussion on why they were reversing the lower court's grant of summary judgment, the 11th Circuit discussed the enactment of the ADA Amendments Act of 2008 (the "ADAAA") because Mazzeo's back problems, scheduled surgery and termination all occurred after when the ADAAA went into effect.  In granting summary judgment, the district court judge found that Mazzeo's physician's affidavit about Mazzeo's impairment was "insufficient, conclusory, and did not demonstrate that Mr. Mazzeo was disabled because it 'contain[ed] no detailed discussion as to whether [the] back condition affected any of [Mr. Mazzeo's] life activities."  The district court also cited a pre-ADAAA 11th Circuit opinion for the proposition that there could be "no disability based on physician's lifting restrictions where the plaintiff testified she could still work."  The district court also noted that the post-surgery work restrictions Mazzeo discussed with Mr. Boyd were no more than a "transitory impairment and, therefore, insufficient to establish that CRI regarded Mazzeo as disabled."  The 11th Circuit covered the ADAAA, the EEOC's guidance and concluded that Mazzeo's physician's affidavit more than showed that Mazzeo was able to make out a prima facie case on his ADA and state-equivalent claims.

In addressing Mazzeo's ADEA claim, the court noted that Mazzeo argued for the "standard version" of the ADEA prima facie case whereas CRI argued for the reduction-in-force ("RIF") standard.  The 11th Circuit stated that which version is adopted depends on Mazzeo's ability to present sufficient evidence that he was replaced by a younger individual.  The district court held that the new 23-year-old CRI employed did not replace Mazzeo and that Mazzeo was not replaced by anyone.  However, the Court held that a plaintiff may demonstrate that he was replaced by showing that, after his termination, some of his former responsibilities were delegated to another employee, in addition to that other employee's own responsibilities.  The Court then held that the district court erred in applying the RIF prima facie case standard as the evidence, viewed in light most favorable to Mazzeo, showed that his position was not eliminated and that he was replaced by the 23-year-old.  On remand, the 11th circuit directed the lower court to use the standard version of the ADEA prima facie case in evaluating CRI's motion for summary judgment.

The case is Anthony Mazzeo vs. Color Resolutions Int'l, LLC, Case No. 12-10250 (11th Cir., March 31, 2014)

Tuesday, April 1, 2014

2nd Circuit Holds an Employee's Inability to Sit for a Prolonged Period of Time May Constitute a Disability Under the ADA

Claiming that she was unable to sit for a prolonged period of time, plaintiff Carmen Parada sued her employer, Banco Industrial de Venezuela, C.A. ("BIV"), for discriminating and retaliation against her in violation of the Americans with Disabilities Act ("ADA") and the analogous State and local anti-discrimination statutes, inter alia.  The district court granted summary judgment in favor of BIV on all of Parada's federal claims and declined to exercise supplemental jurisdiction over her remaining claims, holding that Parada's inability to sit for a prolonged period of time did not constitute a "disability," as that term is defined under the ADA.  The Court of Appeals for the Second Circuit affirmed in part and vacated and remanded in part.

Six months into her job, Parada fell on a sidewalk and hurt her back severely enough that she could no longer sit for long periods of time and prompted her to stand for portions of the workday and to ice her neck and back.  After her doctors diagnosed Parada with lumbosacral and cervical sprains and several spinal disc herniations, Parada was directed to avoid sitting for prolonged periods.  Soon thereafter, Parada requested an ergonomic chair from BIV and even offered to pay for the chair, to no avail.  After repeatedly requesting the ergonomic chair, Parada took a leave of absence that had no specific return date.  For the next several months after, Parada and BIV disputed the extent of her disability, duration of leave, and BIV's repeated requests for additional medical documentation of her disability.  Once Parada's options for leave ran out, she was promptly terminated for failing to return to work.

In the Court's discussion, they noted that even prior to the 2008 amendments to the ADA, they recognized that an impairment "substantially limits" a major life activity if the impaired person is "[s]ignificantly restricted as to the condition, manner or duration under which [she] can perform" the activity.   They also noted that the EEOC listed "sitting" as a major life activity.  The Court then noted the district court's erroneous interpretation of precedent as having created a per se rule when it did not as the plaintiff's in the case cited had vague statements about their difficulties with "prolonged" sitting and that, without more, was not sufficient enough to support a finding of an ADA violation.  The Court noted the importance of the rejection of bright line tests and the need for fact-specific inquiries in ADA claims.

Thus, the lesson to be learned repeatedly in ADA cases is that they are highly fact-specific and employers ought to gather as much information as they can before deciding not to accommodate an employee and terminating them pursuant to attendance policies.  In this case, the 2nd Circuit found that Parada's case may qualify as a "disability" under the ADA (not to mention the likelihood that it may be held a "disability" under the ADAAA as well).  On remand, Parada's case will still come down to specific facts on the nature and extent of her inability to sit for a prolonged period, should it not settle and go that far.

The case is Parada v Banco Industrial de Venezuela, CA, 2ndCir, March 25, 2014, Lohier, R, Jr).