Wednesday, October 26, 2016

7th Circuit: At-Will Employee Cannot Prevail Against Coworkers Who Helped Get Him Fired

I get many, many, many calls from people who have been terminated from their job and claim that one or more of their coworkers lied about them or something they allegedly did and wonder about the legalities of such conduct.  I often have to explain that such conduct is often not subject to a claim and that even if they were, they are rare for practical reasons such as time and expense as these types of claims are what are known as "common law" claims that are pursued directly in either state or federal court.  While this sounds very discouraging, the Court of Appeals for the Seventh Circuit recently explained in a decision why at-will employment is the 'way it is.'  Indeed, the vast majority of employees in the United States are at-will.

At issue in Wesbrook v. Ulrich, (Oct. 20, 2016) was the scope of remedies a fired at-will employee might have against individual supervisors and co-workers.  The plaintiff, Dr. Stephen D. Westbrook, Ph.D. ("Westbrook"), was the former deputy director of the Marshfield Clinic, a prominent not-for-profit health care system headquartered in Marshfield, Wisconsin.  Westbrook's immediate supervisor was Dr. Humberto Vidaillet ("Vidaillet") and the defendants, Dr. Karl J. Ulrich, M.D. ("Ulrich") and Edward A. Belongia, M.D. ("Belongia") served as the president and chief executive officer and senior research scientist and research center director, respectively.

While Westboork had a good working relationship with his immediate supervisor Vidaillet, it appears his working relationship with most others, including the defendants, was "marked with internal conflict."  Westbrook's behavior as deputy director apparently led to employee complaints and departures which ultimately led to Westbrook being terminated in 2010 (though reinstated), and then placed on a performance improvement plan and then terminated again on January 2, 2012.

In 2013, Westbrook filed suit accusing Ulrich, Belongia, and two other former colleagues of tortiously interfering with his employment based on four statements that Ulrich published to the Clinic's board of directors (Westbrook's complaint contained many more allegations but by summary judgment, those were narrowed down to the four statements).  The district court allowed Westbrook's claims against Ulrich and Belongia to proceed to discovery and then they later moved for summary judgment, which was granted by the district court.  In granting the defendants' motion for summary judgment, the court acknowledged that Westbrook's "evidence of internal strife within the Clinic is strong, especially as it concerns Ulrich's possible motives," but the court found undisputed facts that showed that each of the challenged statements were true or substantially true.  Ulrich's motives where therefore immaterial.

                                               The 7th Circuit's Decision

Under Wisconsin law, a claim for tortious interference with a contract requires proof of 5 elements:

1)  the plaintiff had a contract or a prospective contractual relationship with a third party;
2)  the defendant interfered with that relationship;
3)  the interference by the defendant was intentional;
4)  there was a causal connection between the interference and damages; and
5)  the defendant was not justified or privileged to interfere.

The parties disputed the 5th element: whether the defendants' challenged statements were privileged.  Wisconsin law recognizes an important exception to the ordinary multi-factor inquiry about privilege.  If a claim for interference is based on statements that are true, the claim must fail as a matter of law, at which point, motive is immaterial.  The Court also noted that a statement may be "substantially true"--and thus privileged--even if some fine splitting of semantic hairs might leave room to argue about its literal truth.

The Court ultimately held that two of the four statements Westbrook narrowed his argument down to involved "semantic hairsplitting," one misconstrued what was actually said about him, and the fourth was unsupported by the record and immaterial. Thus, summary judgment was upheld.

                                             Preston v. Wisconsin Health Fund

Westbrook also urged the 7th Circuit to overturn precedent in Preston v. Wisconsin Health Fund, 397 F.3d 539 (7th Cir. 2005) whereby they addressed Wisconsin's law of tortious interference in the context of employment.

In affirming summary judgment in Preston, the 7th Circuit explained that an employee who alleges tortious interference by a co-worker or supervisor must prove "both that the employer did not benefit from the defendant's act and that the act was independently tortious, for example as fraud or defamation."  Westbrook challenged this two-prong test arguing that Preston improperly modified the elements of a tortious interference claim under Wisconsin law.

The 7th Circuit declined to overturn Preston for two reasons:  1)  the Wisconsin judiciary has not given them any indication that it disagrees with Preston as 12 years has passed and no Wisconsin court has disapproved or even distinguished it.  2)  they believe Preston was decided correctly:
If Preston had allowed the plaintiff's tortious interference claims to proceed to trial, it would have opened a rather broad avenue under tort law to bypass well-established limits on contract remedies for at-will employees.  Fired at-will employees who have no remedy under contract law would have incentive to sue not their employers for breach of contract but their former co-workers and supervisors under tort.  Under Westbrook's theory, a fired at-will employee would be entitled to a jury trial if there were evidence of ill will or malice on the part of a former co-worker or supervisor who participated in a firing decision.  Such evidence would not be rare.  Such a new avenue under tort law would likely "transform employment at will into employment terminable only for cause,"  Preston, 397 F.3d at 543, as the threat of personal liability in a lawsuit could easily discourage supervisors from taking adverse employment actions.
Thus, if Preston were overruled, the 7th Circuit foresaw a "floodgate of litigation" for at-will employees who are fired because of things their co-workers or supervisors communicated leading to their termination.  The 7th Circuit also opined that a change to the at-will doctrine is a matter of state law to be decided by state legislatures and courts.

The case is Wesbrook v. Ulrich, No. 15-3870 (Oct. 20, 2016).

Wednesday, October 19, 2016

11th Circuit Holds Job Applicants Cannot Sue For Age Discrimination Under the ADEA

In a decision that has sent shockwaves to plaintiff's attorneys in the 11th Circuit and beyond, a recent decision by the Court of Appeals for the Eleventh Circuit has held that job applicants cannot sue for disparate impact under the Age Discrimination in Employment Act ("ADEA") based upon a plain reading of the text.  The decision itself is 76 pages and went deep into the tenets of statutory construction and is beyond the scope of a blog article.  However, Harvard University law professor Noah Feldman wrote about the decision in a Bloomberg article headlined, “Subtle Age Discrimination Gets a Court’s Blessing” and sums up the decision and its effect very well.

The 11th Circuit covers Alabama, Florida and Georgia, not Wisconsin as we reside in the 7th Circuit.

Tuesday, October 18, 2016

8th Circuit: Trucking Company's Requirement That Drivers with High BMI Submit to Sleep Study Does Not Violate ADA

The Court of Appeals for the Eighth Circuit recently held that a trucking company who subjected one of its truck drivers to a sleep study to see if he had obstructive sleep apnea because he had a body mass index ("BMI") over 35, did not violate the Americans with Disabilities Act ("ADA"), nor did it discriminate against the plaintiff, Robert J. Parker ("Parker"), when he was terminated for refusing to take a sleep study.


The defendant, Crete Carrier Corporation ("Crete") hired Parker as an over-the-road truck driver in 2006.  As a driver of a commercial motor vehicle for a motor carrier, Parker was bound by regulations issued by the USDOT's Federal Motor Carrier Safety Administration.  In 2010, Crete began a sleep apnea program based primarily on recommendations from two advisory committees.  The program required drivers at risk for obstructive sleep apnea to undergo in-lab sleep studies.  Crete required an in-lab sleep study if either (1) the driver's BMI was 35 or above, or (2) the driver's physician recommended a sleep study.  At parker's most recent DOT physical, his BMI was over 35.

In July 2013, Parker visited a certified physician not affiliated with Crete who wrote a prescription stating, in whole, "I do not feel it is medically necessary for Robert to have a sleep study."  Parker then refused to participate in a sleep study and then Crete took Parker out of service.  Parker then sued Crete alleging it required a medical examination violating 42 U.S.C. section 12112(d)(4)(A) and discriminated against him because it regarded him as having a disability, violating 42 U.S.C. section 12112(a).

                                 CRETE'S SLEEP STUDY DID NOT VIOLATE THE ADA

The ADA prohibits employers from "requiring a medical examination ... unless such examination ... is shown to be job-related and consistent with business necessity."  When an employer requires a medical exam of its employees, the employer has the burden of showing that the exam is job-related and that "the asserted 'business necessity' is vital to the business and the request for a medical examination or inquiry is no broader or more intrusive than necessary."  "[C]ourts will readily find a business necessity if an employer can demonstrate ... a medical examination or inquiry is necessary to determine ... whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee's capacity to perform his or her duties."  "The examination or inquiry need not be the only way to achieve a business necessity, but it must be a reasonably effective method to achieve the employer's goals." 

Parker argued that Crete failed to consider his individual characteristics before mandating the sleep study.  However, the Court held that the text of the ADA (section 12112(d)(4)(A)) does not require this, and, to the contrary, the ADA permits employers to require a CLASS of employees to get medical exams.  When an employer does this, they meet their burden by showing a "reasonable basis for concluding" that the class poses a genuine safety risk and the exam requirement allows the employer to decrease that risk effectively.  Crete met this burden as its required class--drivers with BMIs of 35 or above--had to submit to an in-lab sleep study, a medical exam. 

The Court found that, by their undisputed facts, the sleep study requirement is job-related because it deals with a condition that impairs drivers' abilities to operate their vehicles and it is consistent with business necessity because it is necessary to determine whether an individual has obstructive sleep apnea, a condition that poses a public safety hazard by increasing the risk of motor vehicle accidents.  Furthermore, the Court held Crete had reasons to suspect that Parker had sleep apnea because of his BMI being over 35.


The Court also found that Crete did not discriminate against Parker based upon perceived disability because of his failure to submit to a lawful sleep study for the reasons previously mentioned, which serves as a legitimate, non-discriminatory reason for his termination.

For all of these reasons, the 8th Circuit upheld the District Court's grant of summary judgment, dismissing all of Parker's claims.  The case is Robert J. Parker v. Crete Carrier Corporation, No. 16-1371 (8th Cir. Oct. 12, 2016).

Tuesday, October 11, 2016

NLRB Issues Complaint Against Postmates

The National Labor Relations Board ("NLRB") recently announced that it has issued a complaint against the popular mobile food delivery app, Postmates.  From the press release on the complaint:
The complaint alleges that Postmates violated the National Labor Relations Act by requiring employee drivers to enter into arbitration agreements as a term of employment. Additionally, the Region 13 Office found that Postmates interfered with employees Section 7 rights by prohibiting them from discussing terms and conditions of employment, including safety, with other drivers.

To remedy the unfair labor practices, the complaint seeks an order requiring that Postmates rescind the overly broad provisions in their arbitration agreements then notify the employees of this change; post a notice both electronically and at all Postmates facilities in the U.S.; and cease and desist from enforcing their unlawful policies.

Parties have until October 19th to respond to the complaint. Absent a settlement, the NLRB is scheduled to begin litigation in Chicago on January 26th.