Wednesday, November 16, 2016

7th Cir. Allows EMTs' Retaliation Claims to Move Forward Under Failure-to-Hire Despite Never Having Applied for New Positions

The facts of this case are initially confusing, but essentially, the plaintiffs, Shannon Volling and Allen Springer, worked at EMTs for a company called Metro and its contractor, a former defendant in the case, ARS.

In April 2011, Volling filed charges against ARS and Metro with the EEOC, alleging sexual harassment, discrimination and retaliation.   In July 2011, Volling filed a complaint in the Northern District of Illinois against ARS and Metro, alleging sex discrimination and misconduct in violation of the Emergency Medical Services Act.  In late 2011, Springer filed a supporting declaration in Volling's lawsuit against ARS and Metro.  Rolling also aided the Illinois Department of Public Health's investigation into ARS.  Like Volling, Springer also voiced his concerns at both ARS and Village of Antioch meetings.  Both plaintiffs alleged that ARS began acting against them immediately after they filed the lawsuit and declaration.

The retaliation at issue on appeal before the 7th Circuit stated on June 15, 2012.  ARS terminated its subcontract with Metro and all eight daytime, weekday Metro EMTs.  ARS replaced Metro with defendant Kurtz.  The next day, Kurtz began exclusively hiring former Metro EMTs.  Kurtz did not publicize its EMT vacancies or inform plaintiffs about them.  ARS instructed every former Metro EMT--except plaintiffs--on how to apply for employment under the new Kurtz contract.  Kurtz then asked ARS for the former Metro EMT's contact information to schedule interviews.  Neither plaintiff received application instructions, applied, or interviewed for a Kurtz EMT position.  Within one day, ARS and Kurtz allegedly "jointly" rehired every other Metro EMT except the plaintiffs.

Plaintiffs' Retaliation Claim

In June 2014, the plaintiffs filed suit against ARS and Kurtz, bringing state and federal retaliation claims.  The plaintiffs settled with ARS and Kurtz filed a motion to dismiss the plaintiffs' complaint.  In March 2015, the district court granted Kurtz's motion to dismiss, holding that the plaintiffs had failed to exhaust administrative remedies as required under Title VII and that regardless, plaintiffs failed to adequately state a claim for relief, as they did not apply for employment with Kurtz.

The plaintiffs filed an amended complaint and the district court again dismissed the complaint, with prejudice, finding that the plaintiffs failed to establish an adverse employment action under Title VII and the accompanying state law because they did not formally apply for employment with defendant Kurtz.

Retaliation Under Title VII

Title VII prohibits discriminating against an employee "because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing..."  To prevail under a Title VII retaliation claim, a plaintiff must "present evidence of (1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two."

In this case, the court held that is was undisputed that the plaintiffs engaged in protected activity and that what was disputed were the last two elements.

Materially Adverse Employment Action

The plaintiffs alleged that Kurtz refused to hire them in retaliation for their engaging in protected activity against ARS and Metro.  In the "failure to hire" context, a plaintiff satisfies the materially adverse employment action by showing she "(1)...engaged in a statutorily protected activity; (2) ...applied and had the technical qualifications required for the...position; (3)...was not hired for the position; and (4) a similarly situated individual who did not [engage in statutorily protected activity] was hired for the position."  The court held that it is undisputed that the plaintiffs satisfied these elements but the question remained whether their failure to apply for the position with Kurtz, because they were not informed about the position, is fatal to their retaliation claim.  For obvious reasons, the court held that this was not fatal and that the plaintiffs pled an adverse employment action against Kurtz deposit not applying for the EMT positions.

The court noted that McDonnell Douglas is not inflexible and recognized that the facts will vary in Title VII cases.  In cases such as this, the court held, the employer's "manner" of publication may involve the discriminatory absence of publication.  "Thus, plaintiffs' failure to apply stemmed from the very discriminatory practice they complain of, and their failure to apply need not bar their retaliation claims."  Kurtz had EMT openings and relied exclusively on ARS for referrals.  The two companies allegedly "jointly" refused to inform plaintiffs of the new EMT positions, while informing all other former Metro EMTs who had not engaged in protected activity.  No application is necessary in such circumstances, the court held.

Causal Connection

The lower district court also concluded that the plaintiffs failed to allege a causal connection between Kurtz's adverse employment action and their protected activity.   The Court held that an application is unnecessary when a plaintiff can show she would have applied had it not been for the complained-of-discriminatory practices.  In this case, plaintiffs contend Kurtz's alleged retaliatory discrimination--purposefully failing to inform plaintiffs of the new hiring process--caused plaintiffs' failure to apply.  Under the complaint, plaintiffs engaged in protected activity, and Kurtz was allegedly aware of this activity as ARS and Kurtz jointly retaliated against plaintiffs for this activity by intentionally excluding them from the EMT application process.

The 7th Circuit reversed and remanded the plaintiffs' retaliation claim to the district court but upheld dismissal of the Illinois Whistleblower Act claim.

The case is Shannon Volling and Allen Springer v. Kurtz Paramedic Services, Inc., No. 15-3572 (7th Cir., October 19, 2016).

Wednesday, November 2, 2016

Wisconsin Court of Appeals Finds Construction Superintendent Fired While on Worker's Compensation Does Not Have Unreasonable Refusal to Rehire Claim

In May 2012, the plaintiff, Kevin Roberts, was hired by the defendant, Stevens Construction, to work as a project superintendent for a construction project in Michigan.  On July 29, 2012, Roberts suffered a work-related injury and received workplace restrictions and was unable to continue working on the Michigan project.  While he received medical treatment for his injuries, Robert remained employed by the defendant.  On August 20, 2012, Roberts' treating physician stated that Roberts was able to "return to regular duty."  That same day, Roberts reported to Stevens Construction and informed the HR manager that his restriction had been lifted.  However, the defendant informed Roberts that "things hadn't gone as well as [he] had hoped" and Roberts' employment was terminated.  In a letter dated August 20, 2012 from Stevens Construction, Roberts' termination was confirmed stating that his "performance at the Michigan project was not what [Vine, the president of Stevens Construction] had hoped for/expected and [Roberts'] position with Stevens Construction was terminated."

Roberts filed a claim under WIS. STAT. section 102.35(3) with the Wisconsin Department of Workforce Development ("DWD"), claiming Stevens Construction had unreasonably refused to rehire him following his injury.  Following a hearing before an administrative law judge, it was determined that Stevens Construction had not unreasonably refused to rehire Roberts, with the ALJ finding that Roberts' employment had been terminated because of his performance and also because Stevens Construction did not have any ongoing work available for Roberts when his employment was terminated.  Roberts petitioned the Labor and Industry Review Commission ("LIRC") who affirmed the ALJ and then sought review by the circuit court, who affirmed LIRC's decision, which prompted appeal to the Wisconsin Court of Appeals who upheld all of the lower decisions.

Court of Appeals Finds Stevens Construction Did Not Unreasonably Refuse to Rehire Roberts

Whether an employer has unreasonably refused to rehire an employee under WIS. STAT. section 102.35(3) presents a mixed question of fact and law.  Wisconsin courts employ a burden-shifting approach when an employee brings a Wis. Stat. § 102.35(3) claim for unreasonable refusal to rehire. Under this approach, the employee must first make a prima facie case of an unreasonable failure to rehire. It is undisputed that as part of the prima facie case, the employee must show that: (1) the claimant was an employee of the employer from which he or she seeks benefits;15 (2) the claimant was injured in the scope of employment; and (3) subsequent to the injury, the employer refused to rehire the employee.  If an employee makes their prima facie case, the burden shifts to the employer to show a reasonable cause of the employer's refusal to rehire the employee.  

LIRC determined that Roberts made a prima facie case showing that Stevens Construction unreasonably refused to rehire him, so the Court of Appeals focused on whether Stevens Construction satisfied its burden of showing a reasonable cause for its refusal to rehire Roberts.

Roberts essentially argued that even though the project was coming to an end, other employees besides him were laid off or not retired was not based on credible and substantial evidence and was instead based "on nothing more than conjecture and speculation."  Roberts argued that the evidence showed that other superintendents and employees who had been working on the Michigan project were either moved to one of the limited number of available superintendent jobs or were allowed to utilize their paid time off days (PTO).  Roberts also argued that Stevens Construction did not meet its burden because they did not show that not only was there a lack of superintendent work for him to perform, but they did not show that there was also non-superintendent work his could have performed within his limitations at the time he was terminated.  The Court of Appeals disagreed.

Stevens Construction showed that at the time Roberts' employment was terminated, the Michigan project was nearing completion and that employees working on that project were being taken off it.  Besides the Michigan project, they had 6 other ongoing projects in August 2012, but there were not available positions for Roberts at those projects.  The one comparable superintendent Roberts relied upon, was allowed to use PTO when he was terminated, which allowed him to remain employed, but Roberts had not shown that he had any PTO to use in the same manner.  Thus, Stevens Construction did not unreasonably refuse to rehire Roberts and his claim was dismissed.

The case is Kevin Roberts v. Stevens Construction CorporationDocket: 2015AP002441.

Tuesday, November 1, 2016

7th Circuit Holds Teacher with PTSD May Proceed on Failure-to-Accommodate Claim

Eymarde Lawler, the plaintiff, was diagnosed with post-traumatic stress disorder ("PTSD") at least 5 years before she was hired by School District 150 in Peoria, IL, the defendant, to teach students with learning disabilities.  Lawler worked for the next 9 years for the defendant performing her job satisfactorily and was given tenure.  In 2010, her PTSD relapsed and that is when the defendant first learned of her disability. 

In response to her relapse, Lawler was transferred to a different school to teach children not only with learning disabilities, but also severe emotional and behavioral disorders.  After a year at this new school, Lawler was rated as "satisfactory" but by then her PTSD was "retriggered" and her psychiatrist notified the defendant that she needed to be transferred to a different teaching environment.  The defendant did not transfer the plaintiff but instead accelerated her next performance appraisal, rated her as "unsatisfactory" and fired her as part of an announced reduction in force that ended with all but "unsatisfactory" teachers being rehired. 

Lawler then sued the defendant under the Rehabilitation Act of 1973, claiming that the defendant not only failed to accommodate her PTSD but also fired her in retaliation for requesting an accommodation.  The district court granted summary judgment to the defendant on all claims, reasoning that the defendant had sufficiently engaged in an interactive process to accommodate Lawler's PTSD by permitting a 2-week medical leave of absence.  On appeal, the 7th Circuit found that Lawler had abandoned her retaliation claim and thus only addressed the failure-to-accommodate claim.

The School District Failed to Accommodate the Plaintiff's PTSD

On appeal, the plaintiff argued that the record included a material dispute about whether the Director of Human Resources, worked with her to accommodate her PTSD.  Lawler insisted that, during their very first meeting in September 2011, the HR director summarily refused to consider transferring her out of the new school she was transferred to.  Lawler contended that this constituted a refusal to engage in the interactive process. 

The Court noted that under the ADA, and therefore under the Rehabilitation Act, both parties are required to make a "good faith effort" to determine what accommodations are necessary, but if a breakdown occurs, "court should attempt to isolate the cause ... and then assign responsibility."  Lawler's physician sent the defendant a letter stating that Lawler should "transfer to another special education job in the District that does not involve [behavioral and emotional disorder] students."  The Court held that the defendant's outright refusal belies any contention that the defendant made a reasonable attempt to explore possible accommodations, such as looking for open positions in other schools or reducing the number of students with behavioral or emotional disorders in Lawler's classroom.  The Court found that the defendant "sat on [their] hands" instead of following-up with Lawler or asking for more information.

The Court found the defendant's argument that they reasonably accommodated Lawler by granting her 2-week medical leave of absence as "frivolous."  The Court found that this short-term leave did not address her psychologist's concern that Lawler's PTSD was aggravated by working with students having severe behavioral and emotional disorders:  "A few weeks respite from that environment might have given Lawler some relief while she was away, but according to her psychologist, returning to the same position would impede her ability to control her PTSD." 

The Court also noted that since Lawler's performance declined after she returned to the same position despite wanting a transfer, then the defendant "surely was on notice that more than a two-week break was needed to give Lawler an opportunity to continue working with PTSD (as she had been doing for years before the school district learned of her impairment).  Furthermore, the Court held that a jury could find from the evidence that Lawler's need for a transfer easily could have been accommodated, since at least 7 openings for special education teachers existed in other schools within the district at that time.

Even though the defendant may have been under the impression that Lawler had changed her mind about a transfer, the Court still found that the defendant failed to engage in the interactive process by making that assumption without seeking clarification from Lawler or her doctor.  Thus, the Court held that a reasonable jury could conclude that the defendant's failure to seek clarification from Lawler or her doctors caused the breakdown in the interactive process.

Summary judgment VACATED and the case REMANDED for further proceedings.

The case is Eymarde Lawler v. Peoria School District No. 150, Case No. 15-2976 (7th Cir. Sept. 16, 2016).