Tuesday, June 28, 2016

Can I Walk Off the Job for a Safety Problem at Work?

A common question employees often have is what their rights are when they believe their workplace poses a risk to their health and safety.  To be more exact, employees often ask, "may I walk off the job if there is a safety hazard or if my employer won't fix a safety issue?"  The short answer is: in relatively rare circumstances.

The  Occupational Safety and Health Act ("OSHA") is the main federal law regulating workplace safety. OSHA gives you as an employee the right to have a safe and hazard free workplace.  OHSA also states when an employee may walk off the job.  There must be "imminent danger":
There must be a threat of death or serious physical harm. "Serious physical harm" means that a part of the body is damaged so severely that it cannot be used or cannot be used very well.
For a health hazard there must be a reasonable expectation that toxic substances or other health hazards are present and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency. The harm caused by the health hazard does not have to happen immediately.
The threat must be immediate or imminent. This means that you must believe that death or serious physical harm could occur within a short time, for example before OSHA could investigate the problem.
If an OSHA inspector believes that an imminent danger exists, the inspector must inform affected employees and the employer that he is recommending that OSHA take steps to stop the imminent danger.
OSHA has the right to ask a federal court to order the employer to eliminate the imminent danger.
Walking off the job should only be done if there is no other reasonable alternative and if your safety is in serious and immediate danger. In addition, you should call OSHA as soon as possible to report imminent dangers at 800-321-OSHA (6742).

Even if there is "imminent danger" and one or more of the above-mentioned conditions are present, you still must remain at the work site to be assigned to other work or wait for the problem to be fixed.  Going home or completely leaving the workplace could subject yourself to a legitimate termination. 

Employees may also want to consider filing a complaint with OSHA and are protected against retaliation from their employer if they do file a complaint.  Employees may also be covered by the National Labor Relations Act ("NLRA"), even if they are not part of a union, if they engage in concerted protected activity such as:
  • Two or more employees addressing their employer about improving their pay.
  • Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
  • An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

Department of Justice Announces Settlement Against Macy's for Immigration-Related Discrimination Claim

The Immigration and Nationality Act (INA) makes it unlawful for a person or other entity to discriminate against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—
(A) because of such individual’s national origin, or
(B) in the case of a protected individual (as defined in paragraph (3)), because of such individual’s citizenship status.
The Department of Justice recently announced a settlement of an INA charge against popular retailer Macy's, whereby it was found that a lawful permanent resident was not able to begin working at Macy’s even though she showed sufficient proof of her work authorization because a Macy’s hiring official incorrectly believed that lawful permanent residents were required to produce unexpired permanent resident cards.  The investigation also found that other human resource employees in Macy’s Glendale location were imposing the same unnecessary requirement on four other lawful permanent residents.  In contrast, U.S. citizens were permitted to choose whichever valid documents they wanted to present to prove their work authorization.
Under the INA, lawful permanent residents do not have to show their permanent resident cards when they start working.  Instead, like all workers, they can choose whichever documentation the would like to present, such as a driver’s license and unrestricted social security card, from the lists of acceptable documents.  ((6) Treatment of certain documentary practices as employment practices
A person’s or other entity’s request, for purposes of satisfying the requirements of section 1324a(b) of this title, for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1).)

From the DOJ's press release on the settlement:
Under the settlement agreement, Macy’s will, among other things, provide additional training to its employees and assess its employees’ understanding of applicable rules.  Macy’s will also pay an $8,700 civil penalty and periodically produce Form I-9 information to the department for review.

“Macy’s did the right thing by immediately resolving the charging party’s delayed hiring and by giving her full back pay,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department's Civil Rights Division.  “All employers should take care not to impose unlawful burdens on employees because of their citizenship or immigration status and address issues promptly when they make mistakes.”

Wednesday, June 15, 2016

Plaintiff with Alcoholism Allowed to Proceed on Disability and FMLA Claims Due to Employer's Suspicious Timing and Statements

A former territory sales rep, Roger Paul Lankford ("plaintiff"), for a business that provides motor oil and other supplies to auto dealers, Four O Corporation and Reladyne, LLC ("defendant"), sued alleging disability discrimination and retaliation under the Americans with Disabilities Act ("ADA") and Ohio's accompanying state law, and interference and retaliation under the Family Medical Leave Act ("FMLA").  The Defendant moved for summary judgment on claims, which the district court denied.


The plaintiff served as a territory sales rep for the defendant from 2008 until he was terminated on February 17, 2014.  On January 14, 2014, a driver for the defendant made a delivery to a customer and included in that delivery were three cases of oil and twelve oil filters which were described as "no charge--per Paul (the plaintiff)."  The driver asked the customer why the delivery was free and was told that they were a for free oil changes that had been given away.  The driver then inquired with the defendant about this free delivery which made it's way up the chain as the plaintiff's mother was the person to return a coupon for a free oil change.  The defendant had an investigation performed into the free delivery.

On January 28, 2014, the plaintiff informed his supervisor that he wanted FMLA leave to attend an alcohol rehabilitation program.  Plaintiff submitted a leave request, which was approved on January 29, 2014 and he then commenced his 35 day leave on January 30, 2014.  A number of emails were exchanged between and among members of defendant's management on February 5 and 6, 2014 regarding Plaintiff's termination.  Because plaintiff was on approved FMLA leave, it was determined that no action would be taken against him until he returned from his leave.

When plaintiff returned from FMLA leave in mid-February, the defendant arranged a meeting on February 17, 2014 to go over the investigation's findings.  The plaintiff denied issuing coupons to his mother and sister-in-law for free oil changes and claimed no knowledge of how they obtained them.  Nevertheless, the plaintiff was terminated on February 17, 2014.

Plaintiff's FMLA Interference Claims

To establish a prima facie case of FMLA interference, a plaintiff must prove that: (1) he was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) he was entitled to leave under the FMLA; (4) he gave the employer notice of his intention to take leave; and (5) the employer denied him FMLA benefits to which he was entitled.  The defendant argued that the plaintiff cannot fulfill the 5th element because he was not "entitled" to his position due to misconduct that was found to exist during his absence.  The district court cited the 6th circuit which has stated:  "[i]f an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLA-protected leave, the employer has denied the employee a benefit to which he is entitled.  Further, the court stated, "Viewing the facts in the light most favorable to plaintiff, the Court finds that a reasonable trier of fact could conclude that Defendants denied Plaintiff FMLA benefits to which he was entitled.  Plaintiff requested FMLA leave on January 28, 2014 to obtain inpatient treatment for his alcohol dependency.  When he returned from leave, he was not reinstated to his position or to an equivalent position, as required by 29 U.S.C. sec. 2614(a)(1)."

Furthermore, the Court noted that the plaintiff set forth evidence indicating that defendant may have used his FMLA leave as a negative factor in their decision to terminate him, which is prohibited.  Specifically, the plaintiff produced emails whereby his supervisors made comments like, "[w]e have too many signs to ignore and not proactively address."  However, just 6 weeks prior, the plaintiff received a positive review from the author of this email.

Plaintiff's FMLA Retaliation Claims

To establish a prima facie case of FMLA retaliation, a plaintiff must show that: (1) he was engaged in an activity protected by the FMLA; (2) his employer knew that he was exercising his FMLA rights; (3) he suffered an adverse employment action; and (4) a causal connection existed between the protected activity and the adverse employment action.  The defendant argued that the plaintiff could meet the 4th element.

The employer's motive is an integral part of the analysis in a retaliation claim.  The court noted, that is, "the adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation."  The court then noted that if "some time elapses between these two events," that the plaintiff then must couple temporal proximity with other evidence of retaliatory conduct to establish causality.

The Court found the temporal proximity between plaintiff's request for FMLA leave and his termination is significant as defendant's upper-management did not learn of the FMLA request until February 4, 2014 and, at the latest, determined the plaintiff should be terminated on February 6, 2014.  The Court concluded a reasonable juror could conclude that, because the decision to terminate plaintiff was made almost immediately following his request for medical leave, there was a causal connection between his FMLA leave and his termination.  Further, the plaintiff provided additional evidence of causation in the form of statements made by defendant's managers regarding his termination.

Legitimate, Non-Discriminatory Reason and Pretext

The defendants argued that the reason for the plaintiff's termination was for his giving away three cases of oil and twelve oil filters without approval, which is tantamount to theft, as their legitimate, nondiscriminatory reason ("LNDR") for plaintiff's termination.  Accordingly, the Court noted, the burden shifts to plaintiff to show that this reason is pretext.

Noting that temporal proximity cannot be the sole basis for finding pretext, they noted that the 6th Circuit has found "suspicious timing as a strong indicator of pretext when accompanied by some other, independent evidence."  The Court also noted that the plaintiff preferred other reasons to serve as pretext:  (1) emails circulated between and among members of defendant's management prior to plaintiff's termination; (2) statements made at plaintiff's termination meeting; and (3) statements made following plaintiff's termination.

Some of the language in defendant's emails regarding the plaintiff's termination were too much to overcome:
  • "[w]e have too many signs to ignore and not proactively address."  This email was forwarded to the prevention loss investigator and there was no explanation as to why.  The Court concluded a reasonable juror could conclude that the investigator was assigned with proactively addressing plaintiff's situation by providing a justification to fire him.
  • On February 5, 2014, an email was sent out and a response included, "...but we need to consult with you regarding his rehab condition."  
  • In a follow up email to the February 5th email, a statement was made about how they had a "nice Plan B."  A "Plan B" is a alternative strategy, the court noted, and a reasonable juror could believe that the original strategy, Plan A, was to terminate Plaintiff because he was an alcoholic who needed medical leave.
  • At the termination meeting, on the termination sheet, was written: "Personal Lief in Ruins--Needs Outside Help--Seemed 'High' in conference with David Luke and I..
Plaintiff's ADA Claim

To make out a prima facie case of employment discrimination under Title I of the ADA, a plaintiff must show: (1) he is disabled; (2) he is otherwise qualified for the position, with or without reasonable accommodation; (3) he suffered an adverse employment employment decision; (4) the employer knew or had reason to know of his disability; and (5) the position remained open while the employer sought other applicants or the disabled individual was replaced.  The defendant argued that plaintiff is unable to satisfy the first element because there is no evidence that plaintiff was disabled by his alcohol dependency.

The Court noted that the definition of "disability" is to be construed broadly and that alcoholism can constitute a disability under the ADA.  The plaintiff's medical records demonstrated that his alcohol dependency substantially limited his life activities.  The Court then noted the several and severe symptoms of the plaintiff's alcoholism which made it clear this was a disability that affected a few of his major life activities.

Plaintiff's Retaliation Claim

The defendant argued that the plaintiff did not engage in protected activity.  However, the Court noted that requesting medical leave as an accommodation constitutes protected activity.  The Court also stated that because the plaintiff was terminated soon after this request, that he established a claim for retaliation.

The Court denied the defendant's motion for summary judgment and the plaintiff was allowed to proceed with all 6 of his claims.  The case is Lankford v Reladyne, SDOhio, November 19, 2015, Black, T

Tuesday, June 14, 2016

Equal Right Division's Early Mediation Program

Back in 2011, the Wisconsin Equal Rights Division ("ERD") reinstituted its Early Referral Mediation Program.  When a Complainant files a discrimination complaint with the ERD, inside the envelope along with a copy of the complaint, instructions and cover letter is a pamphlet about the Early Referral Mediation Program.  Frequently I receive phone calls about this program and the purpose of this post is to try and explain the Program and it's benefits and some of the reasons perhaps a Complainant would choose to not try the Program, though the pamphlet is a very good, thorough, and easy-to-understand source of information as well.

What is Mediation?

Mediation is a form of alternative dispute resolution ("ADR") and its goal is to help the parties reach a resolution to their case.  The mediators are third-party individuals who are not involved with the case whose goal is to help the parties settle as they often pride themselves on their high settlement rates.  The ERD uses current Administrative Law Judges ("ALJ"), who will not be assigned to hear the case if it goes to hearing, as mediators.  A nice benefit to having ALJ's as mediators is they can provide extremely helpful insights to your case as they have to decide employment discrimination cases on a routine basis and can identify issues with cases as often times people believe their cases are stronger than they are.

Do I Need an Attorney for Mediation?

It is often advised to retain an attorney as they generally help with the process and can guide individuals on how to best handle and settle their cases--or whether to settle them at all.  People are often not knowledgeable about the types of remedies they can obtain through employment discrimination suits through the ERD and can sometimes have unreasonable and unrealistic settlement demands.  Having an attorney often yields higher settlements at mediation because the Respondent knows they may have to face tough opposition if they don't settle and have to go to a hearing.

Every attorney is different but some attorneys like engaging in mediation as early as possible to not only see if the case can settle with ease, but also to learn a lot about their case early on so that it may be helpful down the road.  On the other hand, some attorneys think mediation can be a waste of time early on because it's not likely to yield a favorable settlement amount given not too much is known about their case at the complaint stage and the ERD does not require Respondent's to file a written response to complaints if the parties choose to engage in early mediation.  Thus, if a Complainant does not believe the Respondent will come anywhere close to their settlement demand, it can be a waste of time.  In fact, usually if both parties have an attorney, the attorneys spend time trying to settle first before resorting to mediation.  If the attorneys are too far apart, then mediation is usually not likely to bridge the gap.  If the attorneys are reasonably close, then mediation is often a good idea because the mediator may be able to convince one or both sides why they should make concessions.

What Happens if My Case Doesn't Settle?

If mediation does not result in settlement, then the case is sent back down to investigation and the investigator assigned to the case.  If the Respondent hasn't file a written response, they will be required to do so and then the investigator can make their Initial Determination.

Even though early mediation may not be successful, the ERD allows the parties to engage in mediation again later in the process if they believe it may be helpful as the ERD generally prefers cases not have to go to hearing and, indeed, some, if not all, ALJs attempt settlement the morning of hearings to give settlement one last chance.

Last Tips:
  •  Having an attorney for mediation is recommended, though not required
  • Mediations can take anywhere from a few hours to a few days, so patience is key
  • Try to keep in mind issues with your case and try and understand the other side's case and point-of-view 
  • Mediators are meant to be neutral and if you feel that they are against you, still consider what they have to say as it may be beneficial if your case is pursued to investigation

Wednesday, June 8, 2016

Blind Employee Denied a Promotion with HHS Fails on Title VII and Rehabilitation Act Claims

The plaintiff, Janean Chambers, is a legally blind, African-American woman who worked for the Department of Health and Human Services ("HHS") since 1989.  In 2006, Chambers was promoted to a Management Analyst at a GS-9 pay grade and became eligible to apply for GS-11 positions in 2007.  Chambers preferred to continue in her current position, but at a higher grade, so she requested a promotion from her second level supervisor.  However, Chambers was told she could not be promoted because her position was "capped" at the GS-9 level.  As a result, HHS gave Chambers two vehicles for promotion:  1) she could apply for an available GS-11 position in the agency, or 2) she could request  favorable "desk audit" to demonstrate her current duties warranted a higher pay grade.  Chambers did neither.

Over the next 4 years, Chambers pursued an "informal method" of promotion with HHS:  the creation of a higher-graded vacancy with the same responsibilities as her current job.  Chambers' supervisor told her that he supported such a promotion, but that he lacked authority to create a new position--that could only be done by his superiors.  He then told Chambers he would ask for such a position to be created.

When no vacancy was created, Chambers met with her supervisors to vent frustrations and then she filed a complaint with the EEO office at HHS alleging that she had been denied promotion in October 2011 because of her race and disability.  Chambers claimed that at the same time she had been told that HHS lacked the funds to create her position, the agency created positions to promote three white, sighted department heads from a GS-14 to a GS-15 pay grade and had created a new GS-14 network security position.  She also asserted that the other Section 508 Coordinators elsewhere in HHS were paid at a higher grade than she was, despite serving smaller divisions.  In an attempt to resolve Chambers' EEO claim, the parties agreed to an expedited desk audit, but the audit concluded that Chambers' job was properly classified at the GS-9 level.

District Court Decision

Chambers filed suit in district court alleging that she was not promoted to a GS-11 level because of her race and disability in violation of Title VII and the Rehabilitation Act.  The district court granted summary judgment to HHS, reasoning that an employee could not suffer a cognizable adverse employment action when the position she sought did not exist and when her supervisor lacked authority to create it.  Chambers appealed and the Court of Appeals for the District of Columbia affirmed, but on different grounds.

D.C. Circuit's Decision Affirming

The D.C. Circuit affirmed the district court's granting of summary judgment, but on different grounds.  The Court stated that the "district court was right that Chambers must show that she suffered a cognizable adverse employment action to prevail under Title VII and the Rehabilitation Act," and that "Chambers attempts to meet this burden by arguing that Curtis (her supervisor) failed to ask his supervisors to create a new GS-11 Section 508 Coordinator position.  This failure, in her view, amounted to the denial of a promotion."

HHS argued that denial of promotion is an adverse employment action but it is only cognizable if a vacancy for a desired position already exists.  The district court agreed with this argument, but the DC Circuit held that, "there is no such categorical rule in our case law.  Instead, we affirm the district court's grant of summary judgment to HHS on a different ground:  Chambers did not produce evidence from which a reasonable juror could find that she was denied the promotion because of her race or disability."

The DC Circuit found HHS' and the district court's logic fundamentally flawed with respect for the need for there to be a position in existence for a denial of promotion to occur:
The government argues that the lack of a vacancy dooms her claim.  We disagree.  We have recognized that claims alleging an unlawful denial of promotion come in at least two forms:  the denial of a promotion to a vacant position and the denial of an increase in pay or grade.  ...  Precedent makes clear that employees who pursue, and are denied, pay or grade increases can still suffer a materially adverse employment action.  Chambers advances this type of claim, and she did not need to identify an available vacancy to survive summary judgment.

This approach avoids creating an unacceptable loophole in our antidiscrimination law.
Thus, the DC Circuit held that Chambers' failed to show that she was denied her promotion because of her race or disability.  Chambers claimed that she was the victim of unlawful discrimination because her supervisor did not request the creation of a GS-11 position from his superiors.  However, the Court found that no reasonable juror could find that her supervisor contributed to the agency's inaction and that her supervisor routinely supported Chambers and treated her quite favorably.   The Court also noted that a reasonable juror could not conclude from the record that Chambers' supervisor's supervisor denied the request for the GS-11 position because of Chambers' race or disability because he did not know who was asking for the GS-11 position as a promotional opportunity.

The case is Chambers v Burwell, DCCir, May 31, 2016, Griffith, T.

Tuesday, June 7, 2016

Age Discrimination Case Allowed to Proceed Where Older Workers Referred to as "Dinosaurs" and "Old Son of a Bitches"

An employee, Stephen Jecker, of some 32 years of a company, Monumental Life Insurance Company, sued alleging age discrimination and retaliation under both the Age Discrimination in Employment Act ("ADEA") and the Kentucky Civil Rights Act.  Both the plaintiff and defendant filed for summary judgment.  The employee's retaliation claim was dismissed under summary judgment as Jecker was not able to establish that he engaged in protected activity (the plaintiff had to establish 1) he "engaged in a protected activity"; 2) Monumental knew that he had engaged in the protected activity; 3 Monumental "took an adverse employment action against" Jecker; and 4) "there is a causal connection between the protected activity and the adverse action")

The Court did, however, allow Jecker's age discrimination claim to proceed, stating that this claim is slightly stronger, "but not strong enough to warrant summary judgment in his favor."  What ultimately carried the day for Jecker in his age discrimination claim is a number of ageist remarks alleged to have been said by various individuals who worked at Monumental.  The former Regional Vice President testified that he overheard another senior officer tell the plaintiff's direct supervisor that, "[I]t's time you got rid of those old son of a bitches," to which he replied, "[G]ive me some time, we're working on it right now."  This former VP also testified that after Jecker's termination, his former supervisor made a comment about Jecker's age, saying "it was time for [Jecker] to go and that um, we need to have, you know, younger people in the organization to run it.  This former VP also testified that this supervisor frequently referred to older employees as "dinosaurs."  Jecker's former supervisor denied making these comments, which created a dispute of material fact.

Another issue of material fact was whether Jecker was replaced by a younger employee or whether his former job duties and responsibilities were absorbed by other, current employees, as this spoke to whether Jecker was a reduction in workforce or not.  If Jecker was terminated as part of a work force reduction, he would have to "provide 'additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled [him] out ... for discharge for impermissible reasons.'"

The case is Jecker v Monumental Life Ins Co, WDKy, May 23, 2016, Hale, D.