Tuesday, June 20, 2017

4th Circuit Holds Employer's Refusal to Accommodate Employee's Religious Accommodation Against Use of Hand Scanner Violated Title VII

Religious discrimination and failure-to-accommodate religion claims are still amongst the rarest discrimination claims that go to trial and a recent opinion out of the Court of Appeals for the Fourth Circuit showcases just why that is as the Court ruled in favor of an employee who felt forced to retire after nearly 40 years with this employer when they implemented a hand scanner system which the employee believed violated his religious beliefs and could have potentially amounted to a "mark of the beast."  This is yet another decision highlighting the Courts' precedent of refusing to question an employee's religious beliefs and interpretations and holding an employer liable when they choose to question such beliefs without showing accommodation would pose an undue hardship.

This appeal contained numerous issues on appeal, but this post will only focus on the employer's liability under Title VII.

Facts

The plaintiff, Beverly R. Butcher Jr., worked for the defendant, Consol Energy, Inc., for 37 years, without incident, as a coal miner at their Robinson Run Mine.  Butcher is also a life-long evangelical Christian, an ordained minister and associate pastor, and served his church in a variety of capacities.  That he had sincerely-held beliefs was not at issue in this case.

In 2012, Consol implemented a biometric hand-scanner system at the mine Butcher worked at in order to better monitor the attendance and work hours of its employees.  The scanner system required each employee checking in or out of a shift to scan his or her right hand; the shape of the right hand was then linked to the worker's unique personnel number.  This posed a problem for Butcher because he believed it presented a threat to core religious commitments.  Butcher feared that use of the hand-scanning system would result in being "marked" leading to his identification with the Antichrist.  Butcher brought his concerns to his union representative who alerted Consol's HR department.

Butcher was instructed by HR to provide a letter from his pastor explaining why he needed a religious accommodation, which he did.  Butcher also prepare his own letter, citing verses from the Book of Revelation and explaining his view that the hand scanner would associated him with the Mark of the Beast, causing him through his will and actions to serve the Antichrist.  Butcher later offed to check in with his shift supervisor or to punch in on a time clock, as he had in the past while working at the time.

Consol's HR supervisor gave Butcher a letter written by the scanner's manufacturer, offering assurances that the scanner cannot detect or place a mark--including the Mark of the Beast--on the body of a person.  Offering its own interpretation of "the Scriptures," the letter explained that because the Mark of the Beast is associated only with the right hand or the forehead, use of the left hand in the scanner would be sufficient to obviate any religious concerns regarding the system.

Unbeknownst to Butcher, Consol was providing an accommodation to other employees that allowed them to bypass the new scanner system altogether.  As of July 2012, Consol had determined that two employee with hand injuries, who could not be enrolled through a scan of either hand, instead could enter their personnel numbers on a keypad attached to the system.  According to Consol's own trial witness, this accommodation imposed no additional cost or burden on the company, and allowing Butcher to use the keypad procedure would have been similarly cost-free.

Consol ultimately denied Butcher's request for accommodation and informed him that failure to use the hand scanner system would result in following company policy, which was essentially writing him up until enough write-ups warranted termination.  Given the inevitable, Butcher tendered his resignation.  Butcher later filed a complaint with the EEOC, who then filed suit in district court under Title VII and prevailed after a jury trial, with the jury awarding compensatory damages and lost wages and benefits, but not punitive damages.  Consol appealed on several issues, but the 4th Circuit completely affirmed every ruling the district court made.

Opinion

Consol's Failure to Accommodate Butcher's Sincerely Held Religious Belief

To show a violation of an employer's "reasonable accommodation" duty, an employee must prove that: (1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; and (3) he or she was disciplined for failure to comply with the conflicting employment requirement.  On appeal, Consol argued that the evidence presented at trial was legally insufficient to support the jury's specific findings under the first and third of these elements: that there was a conflict between a bona fide religious belief held by Butcher and the requirement that Butcher use the hand scanner, and that Butcher was constructively discharged as a result.

Consol unsuccessfully attempted to argue that there was in fact no conflict between Butcher's beliefs and its requirement that Butcher use the hand scanner system because the system would not imprint a physical mark on his hand.  Consol argued that this fact means the EEOC failed to establish that Butcher could not use the scanner system without compromising his beliefs regarding the Mark of the Beast.  Both the district court and 4th Circuit disagreed with this argument.

The district court explained that there was ample evidence from which a jury could conclude that Butcher sincerely believed "participation in this system"--with or without a tangible mark--"was a showing of allegiance to the Antichrist," inconsistent with his deepest religious convictions.  That is all that is required to establish the requisite conflict between Butcher's religious beliefs and Consol's inconsistence that he use its scanner system.

The court explained:  "At bottom, Consol's failure to recognize this conflict--in its dealings with Butcher as well as its litigation of this case--appears to reflect its conviction that Butcher's religious beliefs, though sincere, are mistaken:  that the Mark of the Beast is not, as Butcher believes, associated with mere participation in a scanner identification system, but instead manifests only as a physical mark, placed upon the right and not the left hand; and that as a result, allowing Butcher to scan his left hand through the system would be more than sufficient to obviate any potential conflict."  In fact, the Court stated:  "It is not Consol's place as an employer, not ours as a court, to question the correctness of even the plausibility of Butcher's religious understandings. ... So far as there is sufficient evidence that Butcher's beliefs are sincerely held--which the jury specifically found, and Consol does not dispute--and conflict with Consol's employment requirement, that is the end of the mater."

Butcher's Quitting Amounted to a Constructive Discharge

To satisfy the third element of a failure to accommodate religion claim, it only has to be shown that "an employer deliberately [made] the working conditions of the employee intolerable."  The 4th Circuit noted that the Supreme Court revised the standard for constructive discharge in 2016 and expressly rejected a "deliberateness" or intent requirement, which means the standard for constructive discharge requires only an objective "intolerability."  The 4th Circuit ultimately agreed with the district court that there existed substantial evidence that Butcher was put in an intolerable position when Consol refused to accommodate his religious objection, requiring him to use a scanner system that Butcher sincerely believed would render him a follower of the Antichrist, "tormented with fire and brimstone."

The 4th Circuit also agreed that the future prospect of a successful grievance under the collective bargaining agreement would do anything to alleviate the immediate intolerability of Butcher's circumstances.

The remainder of the opinion addresses several other issues raised on appeal, but the 4th Circuit affirmed the district court on all of those issues as well.

This case serves as yet another important reminder that if accommodation does not impose an undue hardship, employers are probably best served erring on the side of accommodation and not trying to argue against an employee's purported sincerely held religious beliefs.  What could have been a cost-free accommodation to Consol turned into years of expensive litigation that led to a six-figure jury verdict against them, even more costly appeal fees, and affirmation of the employee.

The case is EEOC v. CONSOL Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017).  Attorney Paul Mollica also briefly wrote about this case over at his blog.

Wednesday, June 14, 2017

EEOC Obtains Summary Judgment on Perceived As Disabled Claim and Argues 6th Circuit Previously Misapplied Test

In disability discrimination claims, there are two routes:  actually disabled or perceived-as disabled.  While the vast majority of disability claims are brought under 'actual' disabilities (whether they are qualified disabilities is a different story and often the subject of litigation), the Equal Employment Opportunity Commission ("EEOC") presented a case before a federal district court in Michigan (which resides in the 6th Circuit) of blatant perceived-as disabled discrimination, which also went against circuit precedent as this district court believes the 6th Circuit misapplied the law in a previous perceived-as disabled case.

Facts

In September 2013 the defendant, M.G.H. Family Health Center ("MGH") hired the plaintiff, Avis Lane, as a community outreach coordinator.  MGH normally required new hires to undergo a "post-offer" physical with its third-party medical evaluator, Workplace Health, prior to beginning work.  Because such a physical is post-offer and before employment begins, this did not pose a problem under the ADA as a medical exam/inquiry.

However, in this case, Lane was assigned employment duties before undergoing a physical, and Workplace Health subsequently recommended that Lane be placed on a medical hold--even though it initially did not receive a job description and was unaware Lane had begun to work.  The Physician Assistant that briefly examined Lane found that while she passed the physical examination itself, Lane's medical records revealed impairments that concerned him and warranted a "medical hold."  After receiving the job description, this PA determined that Lane should not begin work until a functional capacity evaluation (FCE) was performed.  Little did this PA know, Lane continued to work.

After 14 days of successful work, Lane was confronted by MGH officials who noted that Workplace Health had recommended Lane be put on a "medical hold" and undergo a costly FCE, which MGH would not pay for.  Lane offered to pay for the FCE, but MGH instead encouraged Lane to obtain a medical clearance from her own doctor, which she did.  However, despite Lane's full medical clearance, a revised job description with lower lifting requirements, and learning late that Lane had successfully performed the job responsibilities for her sedentary position for 5 weeks, the PA still refused to change his recommendation.  MGH then abruptly ended the individualized inquiry by firing Lane without paying for the FCE or at a minimum, following up with Lane on her offer to pay for the FCE.

The Court then noted that, "the trouble for MGH, then, is that direct evidence of its unlawful discrimination is laid bare:  MGH, by its own admission, fired Lane because it perceived her impairments as rendering her ineligible for the position--but it did so prior to the completion of any individualized inquiry by Workplace Health. ...  To make the evidence worse for MGH, after termination, MGH offered Lane her position back without any conditions, medical examinations, or further inquiry."  The Court then opined that the EEOC was entitled to summary judgment as to liability under the ADA and that the matter proceed to a jury trial for a damages determination.

Opinion

The Court provided a relatively lengthy analysis, which is to be expected if they are refuting the appeals Court above them and going against circuit precedent.  This district court held that contrary to the 6th Circuit's decision in Ferrari v. Ford Motor Co., a plaintiff did not need to show she was regarded as limited in a major life activity, because such a requirement would turn the ADA Amendments Act of 2008 (ADAAA) "on its head."  Choosing not to follow Ferrari, the district court emphasized here that it was applying the ADAAA’s plain language “over case law that has been directly superseded by the Amendments Act and no longer is binding on the precise point at issue.”

Thus, even though the facts in this case were damn near a slam dunk for a plaintiff and their attorney(s), the legal analysis to reach this conclusion was more difficult for this court given how the 6th Circuit may have misapplied the law in a preceding case that is still considered 'good law.'

The case is Equal Employment Opportunity Commission v. M.G.H. Family Health Center, No. 1:2015cv00952 (W.D. Mich. 2017) and has since settled for $21,500, which means it won't be appealed to the 6th Circuit for clarity or new precedent.   For more, also read here.

Monday, June 5, 2017

Plaintiff's "Uncontrollable Crying" Sufficient to Provide Notice to Employer of Need for FMLA Leave, Court Says

The Family and Medical Leave Act ("FMLA") is a very technical and difficult law for many employers to follow as the following case demonstrates as a former secretary at an Illinois high school sued and will be allowed to continue her FMLA interference and racial hostile work environment claim when her former employer asked her to either continue employment or resign despite the fact she was often found uncontrollably crying, needed a school transfer, and often complained of racially-motivated complaints in her ear-shot, which the employer allegedly did nothing to curtail.

Facts

The plaintiff, Noemi Valdivia, filed a 2-count First Amended Complaint against the defendant, Township High School District seeking damages and injunctive relief on the grounds that she was discriminated against on the basis of race in violation of Title VII and that her rights under the Family Medical Leave Act ("FMLA") were interfered with.  In response to this complaint the defendant filed a relatively rare motion to dismiss pursuant to FRCP Rule 12(b)(6) as to both counts.

Plaintiff worked for the defendant as a secretary from May 2010 through June 2016.  Plaintiff alleged in her complaint that during her employment, her co-workers "regularly made derogatory remarks about Hispanic students and their families," which increased in frequency beginning around September 2014.  Plaintiff alleges she complained about these comments to her principal but was told nothing could be done because the secretaries' union was too strong.  Plaintiff became "distraught" about her work environment and in March 2016 she applied for and was offered a position as a secretary at another school.  Plaintiff again was subject to racially-motivated comments about Hispanics and became "extremely distraught and began crying regularly and uncontrollably at work." At that point Plaintiff told her supervisor that she was overwhelmed and afraid she was unsure if she could continue working.  In July/August 2016, Plaintiff asked her supervisor to place her in a 10-month position to give her two months off each school year.  At that point, Defendant told Plaintiff that she had to decide between continuing or resigning her employment.

Plaintiff ultimately ended up resigning from her employment on August 4, 2016, to be effective August 11, 2016 but attempted to rescind her resignation on August 9th, but was told that her position had already been filled.  Less than two weeks later Plaintiff was hospitalized for four days and for the first time she was diagnosed with depression, anxiety disorder, panic disorder, and insomnia.  She was cleared for secretarial work by her physician after treatment.

Opinion and Order

Hostile Work Environment Based on Race

To state a hostile work environment claim under Title VII, a plaintiff must allege that: (1) she was subject to unwelcome harassment; (2) the harassment was based on her national origin or religion (or another reason forbidden by Title VII); (3) the harassment was severe or pervasive so as to alter the conditions of employment and create a hostile or abusive working environment; and (4) there is basis for employer liability.

The defendant argued that the plaintiff "failed to plead any facts which establish that District 214's employees' conduct was severe and pervasive."  The Court noted this is the wrong standard as this element of a hostile work environment is in the disjunctive and the conduct must be either severe or pervasive which means one extremely serious act of harassment (e.g., use of the "N" word) could rise to an actionable level as could a series of less severe acts.

In determining whether a defendant's alleged conduct is sufficiently severe or pervasive to state a claim of a hostile work environment, courts consider facts such as the nature (e.g., physical or verbal) and frequency of the conduct, whether it unreasonably interferes with an employee's work performance, and whether it was directed at the employee.  The defendant argued for dismissal of this count because the complaint does not plausibly allege that the co-workers' conduct was severe or pervasive because their comments were not offensive enough, the comments "were not directed to or even about Plaintiff" and plaintiff did not "establish the comments 'unreasonably' interfered with her work performance."

However, the defendant acknowledged that plaintiff had "alleged repeated, and arguably, derogatory comments mad about Hispanic families made by allegedly two District 214 employees."  Additionally, plaintiff alleged that her co-workers' comments so interfered with her work performance that she could no longer tolerate working at the first school and had to transfer to another school.  The Court found this to be sufficient to state a claim of a hostile work environment.

FMLA Interference

Plaintiff's FMLA interference claim was based on defendant allegedly failing to provide her with notice that she had a right to take job-protected leave pursuant to the FMLA because defendant knew or should have known that she was suffering from a medical condition that made her unable to perform her job.  Instead of informing her of her FMLA rights, plaintiff contends she was forced to resign.

Defendant argued that plaintiff did not provide sufficient notice that she had a serious health condition that entitled her to leave under the FMLA, and thus, that she cannot state a claim for FMLA interference.

The Court noted that the FMLA "notice requirement is not demanding:  The employee's duty is merely to place the employer on notice of a probable basis for FMLA leave."  An employee need not give direct notice of the seriousness of her health condition or even mention the FMLA or demand its benefits; indeed, direct notice may not be possible if the plaintiff "herself was unaware that she was suffering from a serious health condition" or if the employee was unable to communicate her illness to her employer.  In such cases, the notice requirement may be met indirectly; "clear abnormalities in the employee's behavior may constitute constructive notice of a serious health condition."

In her complaint, plaintiff alleged that one month after she transferred to her new school, she "became extremely distraught and began crying regularly and uncontrollably at work" and did this multiple times to her supervisor, whom she had known since 2012, and told her she was overwhelmed, afraid, not sleeping or eating, and unsure if she could continue to work.  Plaintiff also cried uncontrollably to two other co-workers.  Defendant's response was to tell plaintiff to decide to resign or not.

A combination of the length of time plaintiff and her supervisor known each other and plaintiff's rather dramatic behavior sufficed to survive the motion to dismiss.

The case is Noemi Valdivia v. Township High School District 214, No. 16C10333 (Northern Dist. Ill., May 15, 2017).


Tuesday, May 23, 2017

Plaintiff's FMLA and Disability Discrimination Claims Based on Torn ACL and Meniscus Allowed to Proceed

A plaintiff, Amanda Dusik, filed claims under the Americans with Disabilities Act and the Family Medical Leave Act when she was fired after being on leave for several months after she tore her ACL and meniscus in her right knee.  The defendant employer, Lutheran Child & Family Services of Illinois ("LCFS") filed a Rule 12(b)(6) Motion to Dismiss in response to the lawsuit, which a district court in Northern Illinois denied.  Whether this case survives summary judgment is obviously unknown, but the Court's opinion and order was nevertheless interesting given the type of injury the plaintiff had.

Facts

In March 2015, Dusik learned she had a torn ACL and meniscus in her right knee that required surgery.  At the end of March 2015, Dusik told LCFS that her doctor advised her to take 3-6 moths of leave due to her injury and to recover from surgery.  Dusik requested to be updated by a manager about her hours and how much leave she had left, though this was never done, even though LCFS advised Dusik that her leave was being designated as FMLA leave beginning on March 31, 2015..

Dusik had surgery on April 6, 2015 and immediately after, she could not "walk, kneel, crouch, stoop, bend, and was virtually immobile."  Two months later, Dusik told her immediate supervisor that she was progressing, she was doing physical therapy 3 times per week, and that her doctor told her that she would need 3-6 months off of work.

On July 15, 2015, LCFS fired Dusik because she exhausted her FMLA leave.  Dusik alleged the termination was without notice or warning.  At the time she was fired, Dusik was still going to physical therapy, activity still agitated her knee, and she could not walk more than approximately ten feet.  However, Dusik believed that she could have performed the essential functions of her job with the help of a knee brace.  Dusik also alleged that "[h]ad [she] been notified that her FMLA leave was exhausted or had {LCFS} engaged her in an interactive process, she could have been provided with [a] reasonable ADA accommodation in the form of extended leave or that she return to work with a knee brace."

Dusik claimed she is a qualified individual with a disability under the ADA, and that she requested medical leave as her accommodation, but that LCFS denied her request without justification and that it failed to engage in an interactive process to determine if any alternative accommodation could be provided.  LCFS also had a handbook that stated, "[e]mployees, who are not eligible under the FMLAS, may be granted an unpaid leave of absence of up to 6 months to attend to personal matters," and since LCFS has provided six months of unpaid leave to other similarly situated employees in the past, providing six months of unpaid leave for Dusik would not have been unduly burdensome for LCFS.

Lastly, Dusik claimed that LCFS engaged in FMLA interference when they did not notify her of the amount of leave that would be counted against her and retaliated against her when they failed to provide her with writeen notice of the amount of leave remaining before it terminated her.

ADA Claim

The Court noted that the 2008 amendments to the ADA broadened the definition of "disability" to include "transitory and minor" impairments, which are defined as lasting six months or less, so long as they substantially limit a major life activity.  LCFS argued that intermittent and episodic impairments do not constitute a disability, pointing to the oft-cited principle that a broken leg is not a disability under the ADA.  LCFS argued that since Dusik's torn ACL and meniscus are not a chronic impairment, a manifestation of a disability, or part of an underlying disability, it does not amount to a disability under the ADA.  However, the Court held that a physical impairment may be "transitory or minor" because her doctor recommended a recovery period of 3-6 months,and that her physical impairment substantially limited her ability to perform major life activities (walking, kneeling, crouching, etc.), this was sufficient to allege a disability under the 2008 Amendments.

LCFS attempted to fault Dusik for not telling them she could work with a knee brace, but the Court acknowledged that once an employer becomes aware of an employee's disability, it was obligated to engage in an interactive process to determine the appropriate accommodation under the circumstances, which she alleged they did not do.  Thus, LCFS' motion to dismiss her ADA claim was denied.

FMLA Claims

Employers must notify an employee of the amount of leave counted against the employee's FMLA leave entitlement.  When the employer is designating the employee's leave as FMLA-qualifying and the amount of time the employee needs for leave is known, "the employer must notify the employee of the number of hours, days, weeks that will be counted against the employee's FMLA leave entitlement in the designation notice."  As you may recall from the facts recited above, LCFS did not allegedly do any of this.

When Dusik required 3-6 months off of work to recover from surgery, LCFS told her that her leave was being designated as FMLA leave beginning on March 31, 2015.  After that, LCFS never notified Dusik that she was close to exhausting or already had exhausted her FMLA leave entitlement.  These allegations, taken as true, the Court said, describe a violation of the FMLA notice requirement, which allowed her FMLA interference claim to survive.

On Dusik's FMLA retaliation claim, as you might have thought from reading the facts on how LCFS didn't bother keep Dusik informed that she was in danger of losing her job if she didn't return to work and just fired her the moment her FMLA leave expired, the Court likewise found this to show a "causal link between her protected activity of taking FMLA leave and the adverse action of her termination."  The Court also wrote, "Indeed, LCFS was suspiciously non-communicative."  Thus, Dusik's FMLA retaliation claim also survived.

The case is Dusik v. Lutheran Child Family Services of Illinois, Case No. 16CV10812 (N.D. Illinois)

Monday, May 15, 2017

Wisconsin Supreme Court Affirms Court of Appeals in "Substantial Fault" Unemployment Insurance Case

Last month I wrote about the Operton case where the Wisconsin Court of Appeals reversed the Wisconsin Labor and Industry Review Commission's (LIRC) finding that a former Walgreens employee, Lela Operton, was terminated for "substantial fault" after she made 8 "cash-handling mistakes" during her 20-months of full-time employment.  Walgreens acknowledged that the cash handling errors were not intentional nor performed with any ill will on the part of Operton but LIRC and circuit court all affirmed the ALJ's finding that this conduct amounted to substantial fault.  The matter was ultimately appealed to the Wisconsin Supreme Court who affirmed the Court of Appeals and held Operton's conduct was not for "substantial fault."  

LIRC's Interpretation of Wis. Stat. sec. 108.04(5g)

The majority opinion first noted that Wisconsin's unemployment compensation statutes embody a strong public policy in favor of compensating the unemployed, but that, nevertheless, not all employees are entitled to unemployment benefits.  As noted by the Court of Appeals, the Wisconsin legislature made substantial changes to Wisconsin's unemployment laws to include "substantial fault" to make it more difficult for individuals to obtain unemployment benefits.  Substantial fault includes "acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee's employer."  The burden is on the employer to show that the termination was due to the substantial fault of the employee.  

In noting the differences amongst the articulated exceptions enumerated under "substantial fault," the Court noted that it is important to view Wis. Stat. sec. 108.04(5g)(a)2 in context to ascertain the types of conduct to which it applies and that an employee who is warned about an inadvertent error is not necessarily terminated for substantial fault even if the employee subsequently makes another error.  The facts are always key in employment and unemployment law cases, which a detailed review of the facts in this case highlight as Operton's 8 mistakes were very spread out during her 20-months of employment with Walgreens.  The Court noted how Operton would go months without a mistake, despite the thousands and thousands of transactions she would handle.  

The Court also noted that Operton was not repeatedly making the same error, though they were all similar in nature.  The Court found that, for the most part, Operton violated different rules or procedures each time.  

To read the full opinion, and concurring opinions, see here.

Wednesday, May 3, 2017

2nd Circuit Holds Employee's Facebook Outburst Protected Under National Labor Relations Act

Nearly two years ago today, I blogged about the National Labor Relations Board ("NLRB") finding that an employer, Pier Sixty, had been found to have violated the National Labor Relations Act ("NLRA") after it fired an employee, Hernan Perez, who went on Facebook and wrote, about his supervisor, Robert "Bob" McSweeney:

Bob is such a NASTY MOTHER FUCKER don't know 
how to talk to people !!!!!!  Fuck his mother and his entire
fucking family!!!!  What a LOSER!!!! Vote YES for the
UNION!!!!!!!

As you fully read the words of Perez's post, you can probably start to see why the Court of Appeals for the Second Circuit upheld the NLRB's decision (hint: "Vote YES for the UNION!!!!!!!).  However, in upholding the NLRB's decision, the facts were crucial and the same outcome may not be reached in any and every employee rant and outburst on Facebook or other social media platforms.

Facts

Two days before the employees were to vote on the union election, Perez was working as a server at one of Pier Sixty's venues.  Perez's supervisor, Bob, apparently was supervising him with "harsh tones" which Perez did not like and 45 minutes after being spoking to in this harsh tone, during an authorized break from work, Perez wrote the above Facebook post.  Perez knew that his Facebook "friends" included ten (10) coworkers, who would be able to see the post; the post was also publicly accessible, although he may not have known this at the time.  Perez took the post down three days later but Pier Sixty was already aware of the post and fired him after an investigation.

Perez filed a charge with the NLRB alleging he had been terminated in retaliation for "protected concerted activities."  An ALJ later issued a decision finding that Pier Sixty had violated Sections 8(a)(1) and 8(a)(3) of the NLRA by the discharging Perez in retaliation for protected activity.  A 3-member panel of the NLRB affirmed this decision, the NLRB filed an application for enforcement, and Pier Sixty filed a cross-petition for review, which was the issue before the 2nd Circuit.

Opinion and Decision

The issue ultimately before the 2nd Circuit was whether Perez's Facebook post was so "opprobrious" as to lose the protection that the NLRA affords union-related speech.  Many may think the tone of Perez's Facebook post would be so "opprobrious" but the 2nd Circuit, while disagreeing, did state that this case sits "at the outer-bounds of protected, union-related comments, and any test for evaluating 'opprobrium conduct' must be sufficiently sensitive to employers' legitimate disciplinary interests..."  

The right to engage in union-related activity is protected by Sections 8(a)(1) and 8(a)(3) of the NLRA, which prohibit an employer from discharging employees for participating in protected, union-related activity under Section 7.  But even an employee engaged in ostensibly protected activity may act "in such an abusive manner that he loses the protection" of the NLRA.

The "abusive" behavior in this case is obviously Perez's Facebook post.  Traditionally, the starting point for evaluating whether an employee's "uttering of ... obscenities" in the workplace qualifies for protection under the NLRA has been the four-factor test established by the NLRB in Atlantic Steel ((1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice).  The Court noted that this test has come under scrutiny as recently in NLRB v. Starbucks where the 2nd Circuit concluded that the Atlantic Steel test gave insufficient weight to employers' interests in preventing employees' outbursts "in a public place in the presence of customers" and the 2nd Circuit suggested more balanced standards for evaluating "opprobrious" conduct in this context.  At the same time, the General Counsel's Office began developing new guidance for evaluating an employee's use of social media that went in a more employee-friendly direction and that limited the ability of employers to issue rules regarding use of social media.  In light of this new guidance, the Board has utilized the nine-factor "totality of the circumstances" test in recent social media cases.

Pier Sixty did not contest the ALJ's use of the nine-factor test, even though it appears that if they did, the 2nd Circuit would have potentially ruled differently.  Instead, Pier Sixty argued that the Board's decision--that Perez's comments were not so egregious as to exceed the Act's protection--is not supported by "substantial evidence" in the record.  

In rejecting this argument, the 2nd Circuit noted that, even though Perez's Facebook post was "dominated by vulgar attacks on McSweeney and his family," the "subject matter" included workplace concerns which meant the Board could reasonably conclude that Perez's outburst was not an "idiosyncratic reaction to a manager's request but part of the tense debate over managerial mistreatment in the period before the union election.

Second, the Court noted how Pier Sixty had a culture of not disciplining many employees for the type of language Perez used, let alone terminating any for such language and conduct.  

Third, the Court noted the location of the language:  on Facebook.  This is not the same as an employee outbursting in ear shot or in front of customers.  The Facebook post did not disrupt the event Perez was working nor was it evident any attendees saw the post, even though Perez's page was initially publicly accessible, he did take the post down three days later.

Wednesday, April 26, 2017

Governor Walker's Recent Budget Proposal Would Have Eliminated Independent Appellate Body

Wisconsin Attorney Victor J. Forberger has a very well-written article in the Wisconsin Bar Association's Labor and Employment Blog about the impact a recent budget proposal would have had that called for the elimination of the Labor and Industry Review Commission (LIRC), the current independent appellate body that hears appeals in unemployment compensation, equal rights division (employment discrimination), and worker's compensation cases.  The results, needless to say, would have been devastating and many people, even legislators, do not know about these proposed changes and their impact on Wisconsin employees and residents.  Definitely worth a read!

Thursday, April 20, 2017

Dealing with Hearsay in Unemployment Appeal Hearings

Former Administrative Law Judge Charles Schaefer has a really good article in the recent edition of the Wisconsin State Bar's publication, "Wisconsin Lawyer," titled, "Hearsay Problems at Unemployment Insurance Hearings."  

I have handled hundreds of unemployment insurance appeals over my several years as an attorney and am all too familiar with this issue--and many of the other issues that plague the unemployment insurance appeal process in Wisconsin.  Understanding that representation in unemployment insurance appeals is expensive--especially for people recently unemployed and unsure of their financial future--it is always best to have an experienced attorney for these matters as it could be the difference between collecting unemployment checks for the maximum period and receiving nothing.

Many people assume that they just show up and explain their side of the story, which is only partly true.  Though highly relaxed, unemployment insurance appeal hearings still adhere to the rules of evidence, for the most part, and still require the parties to meet certain evidentiary burdens.  Experienced counsel can help a claimant or respondent ensure they have all of the required evidence and witnesses and then competently represent the party at hearing as it is never known in advance who will appear as a witness for either side.  An unemployment appeal hearing before an administrative law judge is also the best chance to get a decision reversed in a party's favor as each appeal thereafter gets more difficult with the issue(s) narrowing to near impossibility.

Thus, get an attorney for your unemployment appeal!

Wednesday, April 12, 2017

Wisconsin Court of Appeals Weighs in on "Substantial Fault" in Unemployment Insurance Claims

Back in 2013, the Wisconsin legislature enacted amendments to the unemployment insurance statute in response to "concerns within the employer community that the current misconduct standard in Wisconsin was too generous in providing benefits to employees who should not qualify."  These amendments created a new two-tier standard for disqualifying claimants from receiving unemployment insurance benefits: misconduct and substantial fault.  I have written about this new "substantial fault" standard previously here and here.

The statutory definition for "substantial fault" is as follows:
For purposes of this paragraph, "substantial fault" includes those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee's employer....
Unlike for "misconduct," in which the Wisconsin legislature expressly set forth specific employee actions that constitute "misconduct," the legislature set forth three (3) acts or omissions by employees that do not constitute substantial fault:
1.  One or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction.
2.  One or more inadvertent errors made by the employee.
3.  Any failure of the employee to perform work because of insufficient skill, ability, or equipment. 
In the appeal that will be discussed, the terms "inadvertent errors" and "infractions" come into play.  Under the Wisconsin Court of Appeals rules of statutory construction, when the legislature uses different terms within the same statute, they intend the terms to have distinct meanings.  Whereas "error" is defined in Wisconsin statute, "infraction" is not.

Lela M. Operton v. LIRC, et al. 

Lela Operton worked as a full-time service clerk for Walgreens from July 17, 2012 until her termination on March 24, 2014.  As a service clerk, Operton average hundreds of cash handling transactions per day during her 20 months of full-time employment, or an estimated 80,000 transactions.  Operation was well-liked by Walgreens, who described her work and demeanor as "conscientious," "always on time," "worked to the best of her ability," and willing to work on her days off.  However, Operton made eight (8) "cash handling errors" during her 20 months with Walgreens that led to her termination which was labeled as "cash handling errors" and "her failure to improve on them."  Walgreens acknowledged that the cash handling errors were not intentional nor performed with any ill will on the part of Operton.

Operton applied for unemployment benefits and Walgreens opposed Operton's application claiming that she "was discharged for violation of a reasonable company policy regarding excessive cash discrepancies" which was as a result of her "incapacity to perform."  The Department of Workforce Development ("DWD") initially denied benefits to Operton on the grounds of "misconduct." Operation appealed this initial determination and an administrative evidentiary hearing was held before an administrative law judge ("ALJ").  The ALJ concluded that Operton was ineligible for benefits not because she engaged in misconduct, but that her discharge was for "substantial fault."   Operton appealed to LIRC, who affirmed the ALJ's decision and adopted the ALJ's decision as its own.  LIRC also made a finding not included within the ALJ's decision:  Operton's March 22, 2014 failure to check the customer's identification was a "major infraction."  LIRC did not explain why the error was a "major infraction."  Operton then filed for an appeal for judicial review to circuit court and the circuit court appealed LIRC.  Operton then filed an appeal to the Wisconsin Court of Appeals.

Wisconsin Court of Appeals Decision

The Court of Appeal ruled that de novo review is required as "substantial fault" is a completely new legal concept not previously in existence.  LIRC was not applying an old statute in a new way; it was applying a new statute to a new concept.  The application of the "substantial fault" statute is a matter of first impression before the Court of Appeals, and LIRC did not have a longstanding nor consistent history in the application and construction of the substantial fault statute (the Court noted two other cases dealing with substantial fault where LIRC arrived at results inconsistent with this case).

The Court of Appeals reversed LIRC for three (3) main reasons:  1)  There was no evidence in the record that Operton committed a "major infraction," 2) Repeated inadvertent errors, even if warned, do not constitute "substantial fault," 3)  Operton's conduct reflects a failure or ability to conform to Walgrees' expectations rather than "substantial fault."  The Court of Appeals discussed each of these in great detail, which is beyond the scope of this post, but only furthers the famous saying, "the devil is in the details."

In concluding their opinion, the Court of Appeals stated that "[i]nadvertent errors, even if repeat after a warning, do not constitute substantial fault," that LIRC's finding that Operton's eight error was a "major infraction" has no support in the record, and Operton's failure to meet Walgreens expectations under the facts presented does not make Operton ineligible for unemployment benefits under Wisconsin Statute.  The Court of Appeals reversed the circuit court's order affirming LIRC's decision and remanded for further proceedings consistent with this opinion.

While the definition and application of "substantial fault" is still developing and evolving, this case further shows that "substantial fault" will not apply to employees and terminations where the employee clearly was not making intentional mistakes or errors unless it's established that the employee was warned and made aware of these mistakes and errors and that more of them will result in discipline, up to and including termination. Thus, even if an employee made a dozen mistakes or errors that were of great cost to an employer, without clear warnings or evidence the employee was acting intentionally, misconduct nor substantial fault is likely to apply and the employee will likely be eligible for unemployment benefits.

The case is Lela M. Operton v. LIRC et al., 2016 WI APP 37 (April 14, 2016).  The Milwaukee Journal Sentinel wrote about the case here.

Wisconsin Court of Appeals Upholds Decision Finding Employee's Termination for Behavior Attributed to Disability Violated Wisconsin Fair Employment Act

The Wisconsin Court of Appeals in a decision late last month affirmed an Equal Rights Division Administrative Law Judge and Labor and Industry Review Commission's ("LIRC") decision that found that a former Wisconsin Bell/AT&T employee's termination violated the Wisconsin Fair Employment Act ("WFEA") when he was terminated for conduct caused by his disability (bipolar I disorder).  As is the case with almost every employment law case, the facts are very intensive and specific, but important lessons are still to be learned from this case.

Facts

The plaintiff, Charles E. Carlson ("Carlson") had worked for Wisconsin Bell/AT&T since 1986 and worked in several positions but at the time of his termination he was serving as a customer service representative, which is a position he held from November 2007 until his termination in June 2011.  In 1997 Carlson began treatment for his eventual diagnosis for bipolar I disorder, which is an illness characterized by having at least one episode of mania, combined with episodes of depression.

Carlson disclosed his condition to a supervisor prior to moving to the call center.  At the discretion of that supervisor, temporary accommodations for limited periods could be made when Carlson's symptoms arose at work and when he could not get the symptoms under control, he sometimes requested time off to be covered under FMLA.  Carlson informed his next supervisor about his condition as well.  This next supervisor informed Carlson that she already knew about his condition from his previous supervisor.  When Carlson moved to his recent position at the call center, he did not inform his new supervisor because he thought this information was passed on by management.

In 2010, Carlson was disciplined after he was observed disconnecting 8 consecutive calls over a period of 9 minutes, without explanation, in violation of AT&T's policy that prohibits call avoidance. Carlson was issued a suspension pending termination for this incident.  A Review Board hearing was held regarding this suspension where Carlson presented letters from his physicians describing his illness and its symptoms, such as "extreme moods" that can come on rather quickly, triggers by a "relatively minor frustration."  Prior to this hearing, Carlson's supervisor had not been informed about Carlson's condition.  Nevertheless, Carlson's supervisor found the physician letters to have no impact on the proceeding because the conduct for which Carlson was being disciplined, intentionally disconnecting customers, would never be allowed under any circumstances.  Instead of termination, Carlson was issued a 50-day suspension.  Carlson was then told by AT&T's Labor Relations Manager that if he needed accommodation for his condition in the future, that he should request it through their 3rd party administrator.

AT&T required Carlson to enter into a "Back to Work Agreement" which permits an employee to return to work with the understanding that at any time during a one-year time frame, they would have just cause to terminate that employee for any infractions relating to customer care, or for a breach of integrity.  This Agreement was to commence when he returned to work on May 1, 2010 and continue through April 30, 2011.  A mere 10 days prior to the expiration of this Agreement, Carlson left work just before lunch due to illness.  Prior to leaving, around 11am, he activated a "health code" which took him temporarily offline and kept him from receiving any incoming customer calls, for a variety of reasons, from illness to simply having to use the restroom.  The average "health code" is 3-5 minutes.  The total time Carlson's health code was activated that day was 38 minutes.  Carlson's use of AT&T's inter-office communication system (Q-Chat) was questioned and it was revealed that he had initiated Q-Chats with coworkers during his health code times discussing various things.  Based on these Q-Chats, his supervisors concluded that he was not really ill and he was subsequently issued another suspension pending termination.

Another Review Board hearing was held regarding Carlson's latest suspension and Carlson again obtained a letter from his physician about his bipolar disorder.  His supervisor dismissed this letter stating, "[w]e've seen this before."  After the hearing AT&T determined that Carlson's termination was warranted.  Carlson then filed 2 complaints with the Wisconsin Department of Workforce Development Equal Rights Division.  The first was after his 50-day suspension and the other after his termination.

ERD, LIRC and Circuit Court Appeals

Carlson's 2 complaints were consolidated for hearing before an ALJ where Carlson alleged that AT&T violated the WFEA in suspending and terminating him because they were based on his disability and that AT&T failed to accommodate his disability.  In a decision dated April 24, 2014, the ALJ determined that Carlson's conduct was caused by his condition and thus both actions taken by AT&T were "because of" his disability and therefore violated the WFEA.

AT&T appealed the ALJ's decision to LIRC.  LIRC, in a decision dated February 19, 2015, reversed the ALJ's ruling regarding the suspension, and found that although Carlson's conduct in February 2010 was caused by his bipolar disorder, his supervisor and managers at that time did not have knowledge of his disability.  However, LIRC affirmed the determination that AT&T had terminate Carlson because of his disability because at that point his supervisors had been informed of his condition and the types of symptoms which could arise at work (because of the Review Board hearings and physician letters).

AT&T then filed a petition for judicial review of LIRC's decision with the Milwaukee County Circuit Court.  The circuit court found that the inference theory of causation utilized by LIRC in finding AT&T liable was reasonable.  However, the circuit court remanded the case to LIRC, finding LIRC's analysis of the issues and facts of the case to be "incomplete," specifically with regard to LIRC's findings relating to whether AT&T had known that Carlson's conduct was caused by his condition at the time of his termination.  AT&T appealed the circuit court's decision to the Wisconsin Court of Appeals, arguing that the inference method of establishing causation is NOT a reasonable interpretation of the WFEA; or, in the event that it is found reasonable and applied in this case, that the evidence is not sufficient to support a finding of liability.

Court of Appeals Decision

There was no dispute that Carlson had a qualified disability or that he was terminated.  The main issue on appeal (a second issue was the level of deference given to LIRC given the main issue) addressed whether LIRC's interpretation of the WFEA is reasonable, specifically with regard to the "because of" language in the statute, whereby LIRC applies the inference theory of causation to impose liability on employers.  Under the inference theory of causation, "[i]f an employee is discharged because of unsatisfactory behavior which was a direct result of a disability, the discharge is, in legal effect, because of that disability."

The Court of Appeals agreed with LIRC and held that AT&T had sufficient information and knowledge about Carlson's disability due to the evidence and information provided at the 2010 Review Board hearing and that Carlson's conduct in April 2011 was consistent with the symptoms described in those letter presented by Carlson's physicians.  These findings were further supported by deposition testimony from Carlson's physicians which stated Carlson's engaging in Q-Chats with coworkers was indicative of his bipolar condition as he was seeking out help during a difficult time.  Based on all of this evidence, LIRC determined, and the Court of Appeals agreed, that Carlson had established a link between his conduct and his condition, and that AT&T's response was insufficient to contradict this evidence.

Take Away's

If an employee has a known disability, it's important to review what you know about this employee's disability when reviewing their disciplines and certainly before you terminate them.  This may involve not only reviewing their personnel file but also speaking to their supervisors as often times employees reveal information about their disabilities to their managers and supervisors.  In this case, the employer knew a great deal about Carlson's disability because they had a hearing on the issue where medical evidence was introduced and where his supervisor was present.  If the employee is behaving in a manner consistent with their disability, it is more than likely more proper to consider engaging in the interactive process to see how they may be accommodated instead of disciplining them as it may lead to liability in a disability discrimination claim.

The case is Wisconsin Bell, Inc. v. LIRC and Charles E. Carlson, Appeal No. 2016AP355 (WI Ct. App. March 28, 2017)

Thursday, March 30, 2017

Employee's Case Remanded by 10th Circuit Over Employer's Monthly Drug Test and Disclosure of Prescription Medications Requirement

The Court of Appeals for the 10th Circuit last month issued a 20+ page opinion mostly dismissing a former FedEx employee's Americans with Disabilities Act (ADA) and ERISA claim, but remanded the employee's disability-related inquiry claim back to the district court because the lower district court failed to address it in summary judgment.

A plaintiff asserting an unlawful medical examination and disability-related inquiry under 42 U.S.C. section 12112(d)(4)(A) must show (1) that he is an employee of the defendant-employer, and (2) that the defendant-employer required him to undergo a medical examination or made a disability-related inquiry of him.  This provision applies to all employees, and a plaintiff need not prove that he is disabled.  Even if the plaintiff makes the required showing, the employer may avoid liability by demonstrating that the medical examination or disability-related inquiry was job-related and consistent with business necessity.

The plaintiff in this case, Steven Williams, claims FedEx violated this ADA provision when it required him to submit to monthly drug tests and to disclose his use of legally-prescribed medications.  The 10th Circuit made it clear that a test for "illegal use of drugs" is NOT considered a medical examination under the ADA, but noted FedEx did more than merely subject Mr. Williams to mandatory drug testing as they also required him to disclose his use of legally-prescribed medications.  The 10th Circuit then noted that they have recognized that requiring disclosure of prescription drugs MAY violate section 12112(d)(4)(A).

However, the lower district court did not address this issue of whether FedEx improperly required Mr. Williams to disclose his use of legally-prescribed drugs, and, thus, this part of Mr. Williams' complaint was remanded so that it may be addressed.  The Court instructed the lower court to make this analysis of whether there exists a genuine issue of fact for trial concerning Mr. Williams' allegation that FedEx improperly required him to disclose his use of prescription drugs by considering whether FedEx implemented its purported disclosure requirement to learn whether Mr. Williams was suffering from any health defects, or for some other business purpose.  If the purpose was to uncover health defects, this goes against what section 12112(d)(4)(A) was designed to prevent.

Non-Competes and Restrictive Covenants in Wisconsin: An Op-Ed

Almost two (2) years ago to the date I wrote a blog post about legislation that had been introduced by Wisconsin state republicans to repeal the Wisconsin statute to make non-competes easier to enforce as the current attitude towards them is unfavorable, made more so unfavorable by recent case law.  Earlier this month, David D. Haynes of the Milwaukee Journal Sentinel authored an opinion piece voicing how non-competes actually hurt Wisconsin's entrepreneurial economy and is worth the read.

Wednesday, March 29, 2017

Wisconsin Employment & Labor Law Blog Named as one of 43 Law Blogs Highlighted by Wisconsin Bar

My/this blog has been named by the Wisconsin Bar as one of 43 law blogs in the State to follow.  Take a look at the other 42 here!

Governor Scott Walker's Latest Budget Proposal Would Substantially Minimize the Wisconsin Fair Employment Act

The Milwaukee Journal Sentinel has a really good and easy-to-understand article on a portion of Wisconsin Governor Scott Walker's latest budget proposal that would make substantial and drastic changes to the Wisconsin Fair Employment Act ("WFEA") which would completely alter how employment discrimination claims are pursued by Wisconsin employees.  To be certain, most Wisconsin residents are probably unaware of these proposed changes and their effect.  Very important read.

Thursday, March 16, 2017

11th Circuit Holds Sexual Orientation Discrimination is Not Actionable Under Title VII

As of today's date, there is currently no specific legislation that protects against discrimination in the workplace against individuals on the basis of their sexual orientation.  Legislation like the Employment Nondiscrimination Act ("ENDA") has gone nowhere for over two decades, which has left it to the states to enact protection, which Wisconsin has done under the Wisconsin Fair Employment Act ("WFEA") in protecting sexual orientation against discrimination in the workplace (though it does not protect against gender identity).  With a recent decision out of the 11th Circuit, they become the 9th circuit to hold Title VII does not prohibit discrimination on the basis sexual orientation which means the Supreme Court of the United States will have to hold otherwise, which it is highly unlikely to do with the current makeup of the Court.

FACTS

The plaintiff, Jameka K. Evans, worked for the defendant Georgia Regional Hospital, as a security officer from August 1, 2012 until October 11, 2013, when she left voluntarily.  According to the pro se complaint she filed, she alleges that during her time as a security officer with the hospital she was denied equal pay for work, harassed, and physically assaulted or battered, discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a "traditional woman[ly] manner."  She claims that, although she is a gay woman, she did not broadcast her sexuality but that it was "evident" that she identified with the male general, because of how she presented herself--"(male uniform, low male haircut, shoes, etc.").

A magistrate judge issued a report and recommendation ("R&R") wherein Evans was granted leave to proceed in forma paupers, denied her request for appointment of counsel, and sua spent screened her complaint.  Among other things, the magistrate judge reasoned that--based on case law from all circuits that had addressed the issue--Title VII "was not intended to cover discrimination against homosexuals."  With regard to Evan's claim of discrimination based on gender non-conformity, the magistrate judge concluded that it was "just another way to claim discrimination based on sexual orientation," no matter how it was otherwise characterized.  Additionally, the magistrate judge recommended dismissal of the retaliation claim on the basis that Evans failed to allege that she opposed an unlawful employment practice, given that sexual orientation was not protected under Title VII.  The magistrate judge recommended dismissing all of Evan's claims, with prejudice, without allowing her to leave to amend, because she pled no actionable claim nor seemed likely to be able to do so.

Both the Lambda Legal Defense and Education Fund, Inc. and Equal Employment Opportunity Commission ("EEOC") filed amicus curiae briefs in support of Evan's objections to the R&R.  On appeal to the 11th Circuit, Evans argues that the district court erred in dismissing her claim that she was discriminated against for failing to conform to gender stereotypes, because a LGBT person may properly bring a separate discrimination claim for gender non-conformity in the 11th Circuit.  Evans also argued that, contrary to the district court's assertion, sexual orientation discrimination is, in fact, sex discrimination under Title VII.  Evans further argued that the district court erred in concluding that she did not meet the requirements to bring a retaliation claims, because a plaintiff can establish a prima facie case of unlawful retaliation if there is a good faith, reasonable belief that the employer was acting unlawfully.  Evans also argued that she should have been allowed to amend her complaint.

Plaintiff's Non-Conformity Claim

Evans argued that the district court erred in dismissing her claim that she was discriminated against for failing to conform to gender stereotypes, as the district claimed that this was just another way to claim discrimination based on sexual orientation.  The 11th Circuit held that the district court erred in making this conclusion.

The 11th Circuit held that, even though discrimination based on gender non-conformity is actionable, Evans' pro se complaint nevertheless failed to plead facts sufficient to create a plausible inference that she suffered discrimination.  Thus, the 11th Circuit held that Evans was entitled an opportunity to amend her complaint one time unless doing so would be futile.

Discriminated based on failure to conform to a gender stereotype is sex-based discrimination.  In Glen v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011), the 11th Circuit held that discrimination against a transgender individual because of gender-nonconformity was sex discrimination.  In that decision, the 11th Circuit stated that, "[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype," and they reasoned that, because those protections apply to everyone, a transgender individual could not be excluded.  Accordingly, the district court's order dismissing Evans' gender non-conformity claim was vacated and remanded with instructions to grant Evans leave to amend her claim.

Sexual Orientation Discrimination Under Title VII

The 11th Circuit shut this argument down immediately:
Evans next argues that she has stated a claim under Title VII by alleging that she endured workplace discrimination because of her sexual orientation.  She has not.  Our binding precedent forecloses such an action.  Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (In Bonner v. City of Prichard, 61 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted was binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981) ("Discharge for homosexuality is not prohibited by Title VII....").  
The EEOC argued that the statement in Blum regarding discharge for homosexuality is dicta and not binding precedent, but the 11th Circuit disagreed.  The EEOC also argued that the Supreme Court decisions in Price Waterhouse v. Hopkins and Oncale v. Sundower Offshore Servs., Inc. support a cause of action for sexual orientation discrimination under Title VII and, again, the 11th Circuit disagreed stating that the fact that claims for gender non-conformity and same-sex discrimination can be brought pursuant to Title VII does not permit them to depart from Blum as they held the Supreme Court decision must be "clearly on point."  The 11th Circuit then noted all of the other circuits that have held sexual orientation discrimination is not actionable under Title VII:  1st, 2nd, 3rd, 4th, 6th, 7th, 8th, and 9th (now the 11th).  

Plaintiff's Retaliation Claim

The 11th Circuit dismissed this portion of the appeal on technical grounds without addressing the merits of whether she could establish a prima facie case of unlawful retaliation if there was a good faith, reasonable belief that the employer was acting unlawfully because they held they will not generally review a magistrate judge's findings or recommendations if a party failed to object to those recommendations, which Evans failed to do.  Consequently, the 11th Circuit stated, they will only review a waived objection, for plain error, if necessary in the interests of justice and review for plain error "rarely applies in civil cases."  The Court held nothing in the record suggested that plain error review was appropriate in this appeal.

The case is Evans v Georgia Regional Hospital, No. 15-15234 (March 10, 2017).

Wednesday, March 1, 2017

7th Circuit Issues Recent Decision Addressing Self-Serving Affidavits in Summary Judgment

The Court of Appeals for the 7th Circuit recently issued a decision in a claim filed under the Rehabilitation Act where a former Wisconsin Department of Health Services employee, Joyce Whitaker, filed suit after she was fired for failing to return to work after several strings of leaves of absences, claiming an accommodation of "finite, unpaid leave" should have been given instead of termination.

To prevail on a claim under the Rehabilitation Act, the plaintiff had to show:  (1) she is disabled within the meaning of the statute; (2) that she was otherwise qualified for the job in question; (3) that she was discharged or subject of other adverse action solely because of her disability; and (4) the employment program of which her job was a part received federal financial assistance.  An employee is "otherwise qualified" when she is capable of performing the "essential functions" of the job with or without a reasonable accommodation.  The Court found that Whitaker could not establish that she could perform the essential functions of her job, which makes her Rehabilitation Act claim fail.

The key take away from this case, however, is the 7th Circuit discussion of the evidence Whitaker offered to show she was an "otherwise qualified" employee and her use of a "self-serving affidavit," which the 7th Circuit has held can "indeed be a legitimate method of introducing facts on summary judgment."  The Court emphasized the point that they "have taken pains to reject 'the misconception that evidence presented in a 'self-serving' affidavit is never sufficient to thwart a summary judgment motion."  However, the Court found Whitaker's self-serving affidavit/declaration was insufficient to avoid summary judgment because it did not provide sufficient evidence to allow a trier of fact to find that, if the Department had given her additional unpaid leave, she likely would have been able to return to work on a regular basis.  The Court noted that, while Whitaker said she was receiving treatment, she did not explain the effectiveness of this treatment or the medical likelihood that it would enable her to return to work regularly.  Thus, summary judgment was affirmed.

The case is Whitaker v. Wisconsin Department of Health Services, No. 16-1807 (7th Cir. 2017)

Tuesday, February 14, 2017

Employee Fired for Being Associated with "Too Much Drama" Allowed to Proceed to Trial on Hostile Work Environment and Retaliation Claims

In somewhat of an unusual case, a former employee, Rochelle Baez, will be allowed to proceed on her claims of retaliation and hostile work environment claims under Title VII and accompanying state of New York law against her former employer, Ann Fontaine USA, Inc. after she was terminated soon after complaining of fellow coworkers spreading a "rumor" that she attended a meeting with the company's president and CEO wearing a "revealing shirt and no bra."  Though the New York district court opined that the case is weak and that this case is "not the type with which the relevant discrimination statutes are most concerned," the court also acknowledged that if the comments "on bra-less attendance at a meeting were made by a man, plaintiff's case would be much stronger."  The court held that there is no legal reason why the gender or number of speakers alters the analysis.

What ultimately carried the day for Baez in the face of a few legitimate articulated reasons for terminating her employment by the defendant (i.e., her poor management of an employee at a Bal Harbor store, and problems opening of the Madison Avenue store in NYC), is the fact that the president listed the "drama" as a reason for her termination and the fact she was terminated in close temporal proximity to her complaint about the rumor being spread about her.  This, according to the court, was sufficient to create a genuine dispute of material fact as to whether her complaint was a but-for cause of her termination.

The case is Baez v. Anne Fontaine USA, Inc. et al, No. 1:2014cv06621 - Document 72 (S.D.N.Y. 2017).

Friday, February 10, 2017

Papa John's Settles Disability Discrimination Case with EEOC for $125,000 After Firing Employee Who Used a Job Coach

A Papa John's location in Farminton, Utah has agreed to settle a disability discrimination lawsuit filed against them by the Equal Employment Opportunity Commission ("EEOC") under the Americans with Disabilities Act ("ADA") when they fired an employee who had down syndrome after an operating partner visited the location and saw the employee working with the assistance of the job coach.

Under the ADA, the use of a job coach is considered a reasonable accommodation unless the employer could have shown an undue hardship.  However, the employee worked for more than 5 months with the job coach before being terminated.  For more on the settlement, see the EEOC's press release here.

Wednesday, February 1, 2017

EEOC Settles Mandatory Flu Shot Case for $300,000

Late last month the Equal Employment Opportunity Commission ("EEOC") announced that it settled yet another religious discrimination case filed against a hospital in Pennsylvania, Saint Vincent Health Center, that had a mandatory flu shot policy that did not approve six (6) employee's request for religious accommodation to not have to receive the vaccine, who were then fired when they did not receive the shot.  The class of 6 individuals will receive $300,000 constituting back pay and compensatory damages.  

Employers may have mandatory flu shot policies, but Title VII requires reasonable accommodation for religion.  Reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer's operations.  In this case, employees who received an exemption were required to wear a face mask while having patient contact during flu season in lieu of receiving the vaccination. Employees who refused the vaccine but were not granted an exemption by the Health Center were fired, according to EEOC's lawsuit. From October 2013 to January 2014, EEOC alleged, the six employees identified in its complaint requested religious exemptions from the Health Center's flu vaccination requirement based on sincerely held religious beliefs, and the Health Center denied their requests. When the employees continued to refuse the vaccine based on their religious beliefs, the Health Center fired them. According to EEOC's lawsuit, during this same period, the Health Center granted fourteen (14) vaccination exemption requests based on medical reasons while denying all religion-based exemption requests.

These 'flu vaccine cases' have been popping up a lot lately as many employers have begun requiring flu shots for various reasons.  Because a lot of employers are not handling them properly due to lack of understanding of what Title VII requires, it has led to violations being found and then subsequent large settlements.  These cases have also presented unique issues as in one case, a court ruled that the practice of veganism — not consuming any animal products — might be considered a religion.  It does appear some Courts, and certainly the EEOC, are taking fairly liberal and strict stances when it comes to whether an individual seeking a religious accommodation has a sincerely held religious  belief which requires accommodation as the EEOC's consent decree in the Pennsylvania hospital case states the hospital cannot deny an employee’s exemption request just because it disagrees with an employee’s belief or because it feels the claimed religion is unreasonable, inaccurate, unfounded, illogical, or inconsistent with the hospital’s views.

For more on the settlement, see the EEOC's press release here.

EEOC's Largest Case Alleging Systemic Age Discrimination Against Texas Roadhouse Awaits Jury Verdict

Closing arguments just concluded this past Monday in a very high-profile and controversial case the Equal Employment Opportunity Commission ("EEOC") brought against a nationwide chain of steakhouses, Texas Roadhouse.  The suit and trial that followed is important for a couple reasons.  For one, it's the largest age discrimination case the EEOC has ever brought, secondly, it's a systemic complaint it brought in which they did not wait for an individual(s) to file a charge of age discrimination before they brought the suit.  The EEOC brought the suit in a rare move after they concluded their own investigation into alleged discriminatory hiring practices based on age.  Texas Roadhouse's lawyers unsuccessfully argued against the EEOC's ability to bring such a suit, but Congress provided this authority under the law, though it's rarely evoked.

ProPublica.org has a very thorough article on the case and trial, which may receive a verdict any day now.

Tuesday, January 31, 2017

Wisconsin Lawmakers to Vote on PLA Bill on Thursday

As I reported on yesterday on the blog, a bill is being considered in Wisconsin that would prohibit local governments from using project labor agreements (PLA's) as part of the bidding process on public construction projects.  Wisconsin lawmakers on the Senate’s Committee on Labor and Regulatory Reform are scheduled to vote on that bill this Thursday.    Because this is yet another attack on unions, many lawmakers are voicing opposition, including Milwaukee Alderman Cavalier Johnson.

I will be following the progress of this proposed bill and report more on it as it develops. 

If An Employee Fails to Return to Work from Leave, Can An Employer Label it a "Voluntary Resignation"?

A very popular and common way employer's separate an employee from their employment is by labeling certain circumstances a "voluntary resignation."  For example, employer's will issue employee's letter stating that if they do not comply with or do certain things, like, return to work, they will be deemed a "voluntary resignation."  This very often becomes a focus of subsequent litigation as a recent case out of California highlights as a California court of appeals reversed a lower court's grant of summary judgment for an employer finding that an employee's communications while they were on leave could be deemed to be a reasonable request for additional leave.

In Leticia Bareno v. San Diego Community College District, the plaintiff had a history of being disciplined by the defendant for performance issues.  In early 2013, the plaintiff was disciplined and issued a 3-day suspension from work without pay.  On the date the plaintiff was to return to work, she notified the defendant of her need for medical leave in the form of a note from her doctor.  From The National Law Review article on the case:
On the date her original leave was set to expire, a Friday, Plaintiff emailed the College a second doctor’s note extending her leave an additional week. The College strongly denied ever receiving that email.  On that same date, the Plaintiff sent the College another email – which was received – stating that she was out on a medical leave and would notify all concerned of her return but provided no further detail of her return date or supporting documentation from her doctor. 
Plaintiff continued to be absent from work the following work week (the “disputed week”). As a result, at the end of the disputed week, the College mailed Plaintiff a letter to inform her that her five consecutive unauthorized absences constituted a voluntary resignation.  As soon as the Plaintiff received the College’s letter, she immediately attempted to contact the College and provided the College with medical documentation supporting the medical necessity of her absences, but the College refused to reconsider.
Thus, the defendant attempted to do what a lot of employers do and give a strict directive that, if not followed, would allow them to separate the employee from their employment and label it a "quit."  Because the plaintiff was clearly trying to obtain medical leave to allow her to not return on her scheduled return date, it doomed the defendant on appeal.  The defendant in this case should have ascertained whether the employee was able to pursue valid leave instead of ignoring the plaintiff's communications and automatically separating when she did not return following her 3-day suspension.

Monday, January 30, 2017

Wisconsin Considering Bill That Would Prohibit Local Governments from Using Project Labor Agreements As Part of Bidding Process for Public Construction Projects

A bill has been proposed and hearings held in both the Assembly and Senate in Wisconsin whereby local governments would be prohibited from using Project Labor Agreements (PLA’s) as part of the bidding process for government construction projects like schools, libraries and jails.  Proponents of the bill say it will foster competition for construction projects and gives employees free choice in deciding whether to be subject to union control while critics of the bill say this undermines Wisconsin workers as other states could then bid on local projects taking away jobs from local residents, would prevent jobs from being completed on time, and could even jeopardize safety of workers.  Around half of the States currently prohibit PLA's.

A PLA is a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project.  A project labor agreement requires all contractors, whether they are unionized or not, to subject themselves and their employees to unionization in order to work on a government-funded construction project. This is done by including a union collective bargaining agreement in a public construction project’s bid specifications. In order to receive a contract, a contractor must sign the agreement and subject its employees to union control.

For more on this proposed legislation, see here and here.

Thursday, January 26, 2017

Releasing an Employee's Medical Information May Violate FMLA

A Federal District Court in Florida recently denied an employer's Rule 12(b)(6) Motion to Dismiss a federal Family and Medical Leave Act ("FMLA") alleging both interference and retaliation.  Though the Court did signal some difficulties the Plaintiff *may* have pursuing his claim with these facts under the FMLA, for purposes of whether his complaint was sufficiently plead, the Court ruled that it was and may proceed to discovery.

The plaintiff, Scott Holtrey, worked for the defendant, Collier County Board of County Commissioners since 2006 and in June 2015, he developed a chronic and serious health condition with his genitourinary system.  Halter applied for leave under the FMLA and his application included 'sensitive and detailed medical information.'  The defendant approved Holtrey's FMLA leave request. Unbeknownst to Holtrey, a management-level employees allegedly disclosed his condition to his coworkers and subordinates at a staff meeting that he did not attend.  Approximately eight (8) coworkers and subordinates learned of Holtrey's medical condition and these coworkers and subordinates approached Holtrey to inquire about his condition and "frequently make fun of him."  The complaint also stated that the "subordinate employees have been making jokes and obscene gestures about [his] condition in front of him."  Holtrey sought corrective action but the Defendant file to remedy the situation.  As a result, Holtrey filed this action under the FMLA alleging claims for FMLA interference and retaliation for Defendant's alleged breaching of his confidentiality under the FMLA.  The Defendant filed a Rule 12(b)(6) Motion to Dismiss the complaint arguing that Holtrey failed to allege that he was denied his FMLA benefits or engaged in an adverse employment action resulting in damages.  The defendant argues that it approved and Holtrey received his FMLA leave and that his FMLA interference claim fails because Holtrey did not adequately allege a hostile work environment.

FMLA Interference

FMLA interference occurs when an employer interferes with, restrains, or denies the exercise or attempted exercise of rights or benefits under the FMLA.  An employee alleging a claim of interference "need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied."  Additionally, "records and documents relating to certifications, recertifications or medical histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files."  However, the Court noted a potential issue moving forward as they stated, "it is unsettled whether this provision gives rise to a private right of action for disclosure."  Because the Defendant was only challenging the sufficiency of Holtrey's claim and not whether there is a private right of action, the Court denied the motion to dismiss on this claim.

The Court wa also not persuaded by Defendant's argument that the interference claim fails because Holtrey, by his own admission, was granted leave.  The issue in this case is whether confidentiality is a right under the FMLA and whether Defendant interfered with that right.  The court further stated, "although district courts conflict on whether a disclosure of an employee's medical information constitutes an interference claim under FMLA, the Court finds that the enforcing labor regulation makes clear that confidentiality of medical information is a right provided and protected under the FMLA."

The Court also upheld Holtrey's hostile work environment claim because he alleged the Defendant interfered with his FMLA rights by disclosing his confidential medical information to his coworkers and subordinates, which resulted in a work environment riddled with obscene gestures and jokes at his expense.  The Court concluded that this sufficiently alleged that this altered his work conditions.

FMLA Retaliation

To succeed on an FMLA retaliation claim, an employee must demonstrate that her employer intentionally discriminated against her in the form of an adverse employment action for having exercised an FMLA right.  To sufficiently allege a retaliation claim, the employee must show, "1) he engaged in a statutorily protected activity; 2) he suffered an adverse employment decision; and 3) the decision was causally related to the protected activity.  The parties squared over the second element.

As with retaliation claims under Title VII, a challenged employment action is "materially adverse" if it well might have dissuaded a reasonable worker from making or supporting a claim under the FMLA.  Holtrey alleged that Defendant's disclosure of his confidential FMLA information constitutes a materially adverse action because it resulted in his co-workers making repeated and frequent jokes and obscene gestures about his condition.  The Court further stated, "at this early stage of litigation, the Court is hard-pressed to find that disclosing confidential medical information about an individual's genito-urinary system to that employee's coworkers and subordinates does not materially affect his working conditions.

The case is  Holtrey v. Collier County Bd. of Commissioners


Monday, January 23, 2017

Can I Be Fired for by my Employer for My Politics?

The recent presidential election has been nothing short of a lightning rod, sparking huge protests across the nation this past weekend and many people took to social media to vent their opinions and frustrations.  How are employee's political stances and opinions protected in the workplace?  It depends (typical lawyer response, but I'll explain below).

First Amendment Protection

The most obvious argument people like to make is that their political speech is protected by the First Amendment of the Constitution.  Well, not really, unless you work in the public sector as the First Amendment prohibits the GOVERNMENT'S restriction on free speech, not private employers.

National Labor Relations Act (NLRA)

The NLRA is a federal labor law that does not only apply to union members (but does only apply to non-supervisory employees) and Section 7 of the NLRA provides that “[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.”  Thus, if an employee(s) engages in conduct to attempt to improve workplace conditions and the workplace generally for them and their coworkers, then it may be a violation if an employer retaliates against employees who do this.  So, for example, if an employee advocates or participates in political activities such as marches and protests for things like paid sick leave, a living wage, etc, then it will more than likely be held unlawful to be disciplined or terminated for these activities.

Anti-Discrimination Laws

Some political issues relate to employees' protected class status such as their sex, race, national origin, religion, etc.  If employees engage in impassioned talk about these things, they could be considered harassing and even as creating a hostile work environment, depending on the situation.  Thus, employers can, in those circumstances, regulate employee's speech in the workplace.