Tuesday, February 25, 2014

7th Circuit Upholds Summary Judgment Finding No Adverse Employment Action When Employee Merely Anticipated Transfer That Never Materialized

The Court of Appeals for the Seventh Circuit affirmed summary judgment against a former Cracker Barrel employee's claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), and 42 U.S.C. § 1981, finding that there was no adverse employment action when the employee quit her job in anticipation of a transfer to a different Cracker Barrel restaurant that never materialized.

The employee, a server named Ruth Andrews, served at a Cracker Barrel restaurant in Caseyville, Illinois, from 1999 until December 21, 2007. In 2002 she filed a discrimination claim against Cracker Barrel, which was settled in 2003.  The manager Andrews later alleged was discriminating against her, Tremayne “J.J.” Stewart, in response to the settlement amount, stated that Andrews better hope he never becomes the general manager because "one of the first things I'm going to do is fire you."  

Stewart was later promoted to GM in 2006 and again made a bonehead statement in stating that he was going to make the Caseyville restaurant the first all-black Cracker Barrel. He assigned more tables to black servers than to white servers. In Andrews’s view Stewart hired a disproportionately high percentage of black people when compared to the demographics of the local population.  Stewart then routinely made inappropriate statements about Andrews' age calling her things like  “old woman,” “old lady,” and “grandma.” He sometimes would grab a cane and impersonate an elderly woman when approaching Andrews. On a few occasions, Andrews complained that Stewart was unfairly reassigning large tables of male customers from older servers to younger ones; Stewart responded, “those guys don’t want to look at an old woman like you.” Once a customer left a tip for the “little old lady,” and Stewart gave it to Andrews, reasoning that she was “the only little old lady here.” For a period of time, Stewart also encouraged Andrews to stop working and instead watch her grandchildren.

Andrews apparently did all she could to complain in an effort to make this behavior and these comments stop but her complaints fell upon proverbial deaf ears and the problems never stopped.  Then, as is to be expected, relations between Andrews and Stewart worsened and Stewart encouraged Andrews to transfer to a different Cracker Barrel location but the nearest location was some 70 miles away.  

While it appeared that Andrews would transfer after requesting it, the facts showed Andrews and Stewart never took the formal steps necessary to make it complete despite the fact it was even announced that Andrews was transferring.  Andrews then never worked at either Cracker Barrel location again after taking paid vacation after she thought she was slated to transfer and begin work at the new location, but the company's internal system considered it a quit and sent her her last remaining pay after she went AWOL for more than 3 weeks.  Andrews had assumed she had been fired and then commenced her charge with the EEOC alleging sex, age and race discrimination.  

The 7th Circuit, in upholding summary judgment against Andrews' claims, held that she failed at the very threshold by not showing that she  "suffered a materially adverse employment action."  Having not plead or claimed a constructive discharge (this was admittedly done so intentionally by her counsel), the Court held that:  "The legal premise of Cracker Barrel’s argument is mani- festly sound: In the absence of circumstances suggesting a constructive discharge, an employee who voluntarily resigns cannot be said to have experienced an adverse employment action.   Cf. Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 717 (8th Cir. 2003) (noting that “a plaintiff cannot state an adverse employment action if he voluntarily resigned” unless the circumstances rise to the level of a constructive discharge)."

The Court did note some "inconsistencies" with respect to Cracker Barrel's record of Andrews' employment status while she was on vacation before she thought she was transferring but found these inconsistencies "immaterial" for purposes of summary judgment as they deemed it clear from the undisputed facts that she did in fact quit her job.

The lesson to be learned:  stay in contact with your employer!  Be clear on your employment status and be 100% clear on your transfer by finding out if it was approved and when you start.  Certainly do not stay out of contact with your employer for weeks and then "assume" you have been terminated as most employers have policies regarding voluntary separations and the laws seem clear that an employee terminates their own employment when they simple stop showing up and stay out of contact.

The case is Andrews v CBOCS West, Inc, (7thCir, February 14, 2014, Sykes, D).  

Monday, February 24, 2014

New York Times Writes About Public Sector Unions in Wisconsin

Steven Greenhouse of the New York Times had a very well-written and balanced article over the weekend on Wisconsin's public sector unions and the infamous Act 10, which is a controversial piece of legislation enacted by Governor Scott Walker that severely restricted the power of public-employee unions to bargain collectively.  Many people within and outside of Wisconsin are not aware of Wisconsin's progressive history in the labor movement which seems to be in reverse since Walker took office several years ago.  Definitely worth the read as we approach another election cycle.

Wednesday, February 19, 2014

Legislation Proposed to Expand FMLA Rights of Workers

Representative Carolyn B. Maloney (D-NY) has introduced a bill into the House which seeks to amend the Family and Medical Leave Act (FMLA) to protect more employees and to add more types of protected leave.  The proposed bill, HR 3999, would amend the FMLA to:
  • Cover employers with 25 or more employees (current law covers employers with 50 or more employees)
  • Permit employees to take parental involvement leave which is leave to participate in or attend activities sponsored by a school or community organization that is related to a program of the school or organization that the employee's son, daughter, or grandchild attends
  • Permit leave for family wellness which would apply to routine family medical care needs, including medical and dental appointments of an employee's son, daughter, spouse, or grandchild, or to attend to the care needs of elderly relatives, including to nursing homes and group homes
  • For parental or family wellness leave, employees would be entitled to up to four hours of parental involvement or family wellness leave during a 30-day period and up to 24 hours in a 12-month period.  Employees would be able to elect, or the employer could require, substitution of any accrued paid vacation leave, personal leave, or family leave. 
  • Employees would be required to give the employer at least seven days' notice of their intention to take parental involvement or family wellness leave.  When taking family wellness leave, employees would also be required to "make a reasonable effort" to schedule the leave so to avoid unduly disrupting the employer's operations, subject to the health care provider's approval (if applicable).

February Edition of the Employment Law Blog is Live!

Attorney Robin E. Shea of Constangy , Brooks & Smith, LLP hosted this month's edition of the employment law blog titled, "Black History Month (Music Great) Edition."  Check it out now!

Monday, February 17, 2014

8th Circuit Holds "Stressed Out" Employee's Disability Discrimination Claims Fail When Nature of Job

In a decision given just before the end of 2013, the Court of Appeals for the Eighth Circuit granted a district court's grant of summary judgment against an Family Service Worker's Family and Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), Americans with Disabilities Act (ADA) and Rehabilitation Act claims.  The decision is fairly interesting because the basis of the claim was an employee's inability to perform her job and need medical leave due to stress caused by the job.  However, and what likely 'saved' this employer, is the fact they explicitly stated "stressful environment" was a part of the job and incorporated it into the job description.

The Court upheld the district court's grant of summary judgment with respect to Hill's FMLA claim because she simply was not eligible for FMLA leave as she had not worked enough during the work year to be an eligible employee for FMLA leave.  Hill attempted to cite case law where other plaintiff's successfully showed they would have been eligible during their leave time but Hill did not show the same.

Hill's FLSA claim failed because she sued her supervisor in her individual capacity and did not adequately plead that her supervisor was responsible for paying her. 

Lastly, Hill's disability discrimination claims failed because she was not able to perform an essential function of her job:  handling stressful cases.  Although Hill attempted to argue only one particular case was causing her the inability to perform the job, the Court held that "[t]he ability of individual caseworkers to pick and choose among case assignments based on their toleration of stress could wreak havoc with management of the agency, especially considering that the Department already was short staffed during Hill's leave.  See Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787 (8th Cir. 1998)."  Furthermore, Hill's Department offered accommodations, but Hill refused them all and insisted upon removal as the sole accommodation.  The Court then reminded us that an employer need not remove essential functions of a job to accommodate an employee.

The case is Yulanda Hill v. Carolyn Walker, Case No. 13-1381 (8th Cir. Dec. 16, 2013)

Monday, February 3, 2014

4th Circuit Holds a "Severe Temporary Impairment" May Constitute a Disability under the ADAAA

In the first published federal appellate court opinion to apply the expanded definition of disability contained under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), the Court of Appeals for the Fourth Circuit in Summers v. Altarum Institute Corp., No. 13-1645 (4th Cir. Jan. 23, 2014), held that "a sufficiently severe temporary impairment may constitute a disability."

The plaintiff, Carl Summers, was working as a senior analyst for the Altarum Institute, a government contractor with an office in Virginia.  One day on his commute to work, while carrying a heavy bag over his shoulder, he lost his footing and struck both of his knees against the train platform.  Summers fractured his left leg and tore the meniscus tendon in his left knee, fractured his right ankle and ruptured the quadriceps-patellar tendon in his right leg.  Surgery was required and his doctors forbade him from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest. 

Summers contacted Altarum about obtaining short-term disability benefits and working from home while he recovered, but Altarum agreed to discuss "accommodations that would allow Summers to return to work."  Altarum did have a policy allowing employees to work remotely if the client approved.  Altarum recommended Summer take short-term disability benefits and focus on getting better but they never followed up on his request to return to work, did not suggest any alternative reasonable accommodation or engage in any interactive process with Summers.  Altarum also failed to inform Summers there was any problem with his plan to gradually return to work and instead terminated his employment "in order to place another analyst in his role at [the client]."

Summers then filed suit under the Americans with Disabilities Act (ADA) alleging discrimination based on disability and failure to accommodate.  Summer amended his complaint but the district court dismissed these claims upon Altarum's Rule 12(b)(6) motion.  The court held Summers failed to allege he was disabled and stated a temporary condition, even up to a year, does not fall within the purview of the ADA."  The court also held Summers did not request a reasonable accommodation as working from home was unreasonable "because it sought to eliminate a significant function of the job."

On appeal, Summers only challenged the district court's dismissal of his discrimination claim, not his failure-to-accommodate claim so the 4th Circuit did not address it, unfortunately. 

In its analysis, the 4th Circuit noted the legislative intent of the ADAAA and Congress' intent to override the Supreme Court's decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 199 (2002), where the SCOTUS adopted a strict definition of the term "disability" and suggested a temporary impairment could not qualify as a disability in order for the ADA to apply to an individual.  Congress believed that Toyota set an "inappropriately high level of limitation necessary to obtain coverage under the ADA."  Pub. L. No. 110-325, sec. 2(b)(5).  The Court then noted the EEOC's promulgated regulations which expressly provide that "effects of an impairment lasting or expected to last fewer than six months can be substantially limiting" for purposes of proving an actual disability.  The regulations further state that although "[I]mpairments that last only for a short period of time are typically not covered," they may be covered "if sufficiently severe." 

In reversing the district court's dismissal of Summers' disability discrimination claim, the Court noted the district court's decision "represented an entirely reasonable interpretation of Toyota and its progeny."  The Court further noted that it is the "first appellate court to apply the amendment's expanded definition of 'disability'," and also said this case presents an unquestionable instance of a disability.  This allowed the Court to comfortable end their opinion with a line stating, "[u]nder the ADAAA and its implementing regulations, an impairment is not categorically excluded from ebing a disability simply because it is temporary."

As is the case with any new law with almost zero case law precedent, it will make employment decisions dealing with disabilities, temporary or not, more difficult which further necessitates the need for employers to consult with legal counsel.  It'll be interesting to see how other circuits handle this issue under the ADAAA moving forward.