Thursday, August 24, 2017

Failure to Specifically Allege Failure to Conform to Sex Stereotype Did Not Doom Former Nursing Home Employee's Title VII Claim

A federal district court in the Eastern District of Pennsylvania has denied a defendant nursing home's Motion to Dismiss under FRCP Rule 12(b)(6) even though the plaintiff alleged only merely that he is gay and only provided facts about his former supervisor mocking his effeminate behavior.


The plaintiff, Frank "Doe" (the plaintiff filed a motion to proceed anonymously in order to keep private the fact that he is gay), began working as an activities director for the Meadowview Rehabilitation and Nursing Center, a nursing home in Pennsylvania, in May 2015.  In February 2016, the nursing home hired defendant John Chapman.  Around the time of Chapman's hire, two of plaintiff's coworkers warned him that he should not "act gay" around Chapman, one of them telling him to "turn the gay down."

Chapman nevertheless discovered the plaintiff was gay in February 2016 and "repeatedly mocked [him] by referring to him by the female name, 'Frances,' instead of [plaintiff's] real name, 'Frank'" with a high-pitched, effeminate intonation.  Plaintiff repeatedly told Chapman to stop, but he did not.

Around May 2016, Chapman asked the plaintiff privately whether plaintiff thought Chapman did not like him.  Plaintiff "responded that he believed Mr. Chapman had a problem with gay people in general.  Mr. Chapman raised his hand in the air, dropped it in his lap and said, 'Frances!' in a high-pitched, dramatic fashion.  After this conversation, Chapman did not stop mocking plaintiff by calling him "Frances," and did so in front of his coworkers to embarrass him.

On September 22, 2016, Chapman told plaintiff that he had seen him sleeping during a staff meeting the day before, and fired him.  This was an "exaggerated and completely fabricated reason" that Chapman allegedly used as a pretext to fire plaintiff.  Meadowview did not offer plaintiff the progressive discipline it routinely offered its other employees, which would have required a verbal warning, four written warnings and then suspension before termination.  Plaintiff then filed suit in federal district court after exhausting his administrative remedies.


The plaintiff brought his claims of discrimination and retaliation under Title VII and the PHRA.  In their motion to dismiss, defendants argued that plaintiff's claim for wrongful discharge and hostile work environment under Title VII should be dismissed because he alleges discrimination on the basis of sexual orientation only, not on the basis that his conduct did not conform to stereotypes of masculinity.  As just about every circuit has held, except for the 7th circuit, Title VII does not prohibit discrimination on the basis of sexual orientation.

The Court here denied the defendants' motion to dismiss, finding that plaintiff describes himself as the victim of antagonistic treatment due to his perceived effeminate behavior, rather than as a result of his sexual orientation alone.

The Court further found that the plaintiff sufficiently alleged that he was discriminated against because Chapman perceived that he did not conform to Chapman's expectations of what is masculine.  According to the complaint, Chapman apparently found plaintiff to be effeminate, using both a female name, "Frances," to refer mockingly to plaintiff, and a feminine, high-pitched voice when referring to him by this name.  Plaintiff shows that Chapman harassed and, ultimately, fired plaintiff because of his failure to conform to sex stereotypes.

Although the plaintiff did not specifically allege that he actually acted effeminately, the absence of such an allegation does not doom his claim, the court held.  Rather, he must merely show that he was perceived to be a member of a protected category.

The court also found that the plaintiff sufficiently plead a case for retaliation when he asked that Chapman stop with the mocking and names, he was fired, and there was a causal connection because the mocking continued nearly up to the point he was fired.

While this court is allowing this claim to proceed, it's definitely best practice to be sure to know what circuit you are filing this type of claim under and be sure to plead specific language that alleges the defendant discriminated against a plaintiff because of their failure to conform to specific sex stereotype(s).

The case is  Doe v WM Operating, LLC dba Meadowview Rehabilitation & Nursing Center, (EDPa, August 7, 2017).

Wednesday, August 16, 2017

White Hotel Worker Fired After Discussing "Black Lives Matter" Has Race Discrimination Claims Dismissed

With all of the more extreme events taking place in politics lately, you can expect a rise in employment law claims when people are fired for bringing these topics into the workplace.  A recent case out of a federal district court in South Carolina highlights how employees in the private sector are not as protected as they may think, or like, when it comes to voicing their political views in the workplace.

The plaintiff, Kimberly Collins, was fired after a conversation she had with three superiors, who were African-American, at the hotel they all worked at.  During this conversation, Collins expressed her opinions on a Black Lives Matter protest that had just taken place in the hotel, the recent shooting of an African-American in nearby North Charleston, the prior year's police shooting of another African-American in Missouri and its aftermath, diversity training that Charleston Place employees had attended several months earlier, and the state of race relations during the Obama presidency.  Though the court opinion does not state exactly what Collins said, they did say that her comments "were not well-received."

The person who made the decision to fire Collins, was a Caucasian whom Collins worked directly.  Though this supervisor was out of town when Collins made her comments, the three African-American supervisors told him the substance of her remarks and also described Collins as acting belligerently, yelling at them and wagging her finger in one person's face.  Based on the information he received, the Caucasian supervisor decided to fire Collins because she was hostile and disrespectful to superiors.  Thus, Collins then filed claims against Charleston Place alleging race discrimination in violation of Title VII and Section 1981 and state law violations due to firing her because of her political opinions and because she expressed those opinions in the workplace.

A Magistrate judge issued a Report and Recommendation ("R&R") and recommended that the district court dismiss Collins' two federal claim and not exercise jurisdiction over the state law claim.  The district court agreed.

Title VII Claim

Ultimately, Collins failed on her Title VII race discrimination claim because she was not able to show that "other employees who are not members of the protected class were retained under apparently similar circumstances."  For one, the person who fired her is Caucasian and, for another, she was replaced with another Caucasian.  Furthermore, the Court held that even had Collins met her burden under the McDonnell Douglas burden-shifting scheme, she would not be able to show pretext.

This case doesn't suggest or show that any and all similar political speech in the workplace that leads to termination would fail in court, but these facts were simply not good for this plaintiff who appears to have voiced her political opinions in a very disrespectful manner to individuals of the opposite race who happened to be her superiors.  What this case does show is that engaging in political discussion or speech in the workplace is not an absolutely-protected activity that can never lead to termination.

State Law Claim

Since the Court dismissed the two federal law claims, it was inevitable that they would dismiss the state law claims as well, despite objection from the Defendant.  The Defendant wanted the state law claim to remain in federal court, among other reasons, because it would lead to further costs and delay.  However, the Court decided that because this is a state law issue, it would not let this remaining claim be litigated in federal court and that state court is the proper venue.

Perhaps another important question and issue surrounds the people who have been getting fired from their jobs after being outed as attendees of the Neo-Nazi rally in Charlottesville, Virginia.  The short answer to whether people can be fired from their private sector job for participation in such a rally is: yes.

Monday, August 7, 2017

NYT Article on Difficulty in Proving Age Discrimination Claims

The New York Times has an article today titled, "Shown the Door, Older Workers Find Bias Hard to Prove."  I haven't seen the most-recent statistics on employment law litigation, but getting past summary judgment and to a jury is still a seemingly insurmountable task these days and this article helps discuss why that is.  Worth a read!

6th Circuit Upholds Summary Judgment, Finding AutoZone Store Manager Not a "Supervisor" for Purposes of Title VII Vicarious Liability

In sexual harassment cases, one of the biggest issues that are litigated is whether the person accused of engaging in sexually-harassing behavior is the plaintiff's supervisor or merely a co-worker.  The reason this distinction is important is because if the employee is a supervisor, a non-negligent employer may become vicariously liable if the agency relationship aids the victim's supervisor in his harassment.  If the employee is merely a co-worker, the employer is liable only if it was negligent in controlling working conditions--that is, if the employer knew or should have known of the harassment yet failed to take prompt and appropriate corrective action.  In a more recent case out of the 6th Circuit, the Court of Appeals discussed how an AutoZone store manager, despite his title, was not a supervisor for purposes of Title VII liability.

Facts and Decision

The Store Manager Was Not Empowered by AutoZone to Take Tangible Employment Actions Against His Victims

The conduct of the store manager at issue was repulsive and both parties actually agreed on this point.  However, given the more important facts of this case, the 6th Circuit upheld summary judgment for two huge reasons:  1) the store manager was not a supervisor due to his specific duties and powers; and 2) AutoZone exercised reasonable care to prevent and correct promptly the sexually harassing behavior, and the employees "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

An employee is a supervisor for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.  Tangible employment actions are those that "effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."  The Court held that in this case, AutoZone did not employer the store manager to take any tangible employment actions against his victims because he could not fire, demote, promote, or transfer employees.  The store manager could, however, direct the victims' work, could initiate the disciplinary process and recommended demotion or promotion, conducted performance reviews, and had the ability to influence the district manager.

AutoZone Established an Affirmative Defense to Liability

The Court also concluded that even if the store manager was considered a supervisor under Title VII, AutoZone established an affirmative defense to liability.  This defense has two elements:  (1) "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior"; and (2) that the harassed employees "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."  The Court found that AutoZone met both elements.

First, AutoZone exercised reasonable care to prevent harassment and promptly fired the store manager at issue when it learned of his behavior.  AutoZone also promulgated and enforced a sexual harassment policy, that the victims acknowledged they were aware of, though claimed they never read it.  More importantly, the Court noted, AutoZone promptly corrected the store manager's sexual harassment once it learned of it by investigating it, transferring him and then terminating his employment.

The victims in this case, which is also a huge problem with people who attempt to claim sexual harassment in the workplace, also did not report the sexual harassment for several months.  6th Circuit precedent has already held that an employee who unreasonably fails to take advantage of corrective opportunities when she waits two months to report harassment.

For both of those reasons, the Court held that summary judgment was appropriate and upheld.  The case is EEOC v. AutoZone, Inc., et. al., Case No. 16-6387 (6th Cir., June 9, 2017).

Thursday, August 3, 2017

Wisconsin Court of Appeals Reverses $2.2 Million Jury Award, Finds Doctor Was an At-Will Employee

A little over a year ago, after a week-long trial, a jury in Madison, Wisconsin awarded former Dean Clinic doctor, Donald Bukstein, M.D., $2.2 million after the circuit court judge denied Dean's motion for summary judgment.  Dean appealed this jury verdict and the judge's denial of summary judgment to the Wisconsin Court of Appeals who reversed this jury verdict and the judge's decision denying Dean's motion for summary judgment.  At issue was whether Bukstein was an at-will employee subject to termination without case or whether Dean had a policy that altered his at-will status and provided him greater employment protection.


Bukstein was employed as a Dean shareholder from 1981-2012.  In 2008, Dean and Bukstein entered into a written Shareholder Employment Agreement.  This Agreement contains an at-will provision giving Dean the right to terminate its employment relationship with Bukstein "at any time" and "without cause," so long as two conditions were met: 1) Dean provided Bukstein with 90 days' written notice, and 2) at least three-fourths of the members of the Dean Board of Directors voted to terminate his employment "without cause."  Bukstein had a parallel right under the at-will provision to end his employment relationship with Dean--after all, at-will employment is a two-way street!

Three of Bukstein's patients reported to Dean that he had touched them in a sexual manner during the course of examination or treatment, which prompted Dean to conduct an investigation.  After this investigation, there were several meetings of the Dean Board.  Additionally, pursuant to a Dean management policy, committees met to discuss the findings of the investigation.  This management policy is a document that was promulgated after and separate from the employment agreement and Dean followed some of the procedures outlined in this policy.  However, Dean did not terminate Bukstein's employment under this management policy--they terminated him pursuant the at-will provision written into the Shareholder Employment Agreement, without cause, even though the Board initially voted against terminating Bukstein's employment.

Relying on the Dean management policy, Bukstein filed suit in Dane County Circuit Court alleging (1) breach of contract and (2) breach of the duty of good faith and fair dealing.  Dean moved for summary judgment on both causes of action but the circuit court denied Dean's motion.  The matter then proceeded to trial and the jury returned verdict in Bukstein's favor, awarding him $2.2 million.  Dean then promptly appealed this matter to the Wisconsin Court of Appeals.

Breach of Contract Claim

Bukstein's breach of contract claim hinged entirely on Dean's "Physician Practice and Performance Management Policy," which is a two-page document that provided guidelines for Dean investigations into allegations against physician-employees, like Bukstein, that could lead to discipline, including termination.  This policy makes no reference to any provision in the employment agreement, including the at-will provision.  Bukstein argued that this policy changed the employment relationship by creating a "contract separate from or supplemental to the [employment agreement.]"  The Court of Appeals held that the problem with Bukstein's reliance on this policy is that, under controlling case law, the policy does not modify Dean's right to terminate Bukstein under the at-will provision in the employment contract because of the "only when" rule.

The "only when" rule provides that policies alter an at-will relationship "only when" the policy "contains express provisions from which it can be reasonably inferred that the parties intended to bind each other to a different employment relationship" than the established at-will relationship.  Bukstein argued that the Dean policy changed the employment relationship in some manner, which created a triable issue as to whether Dean followed its policy in terminating Bukstein.

The Court of Appeals then addressed how controlling case law applied to the case, distinguishing it from cases Bukstein cited as favorable, and comparing to cases that showed Dean's policy did not alter the at-will relationship.  The court emphasized three points as to why the Dean policy did not alter the at-will relationship:  1)  unlike the employment agreement, neither party signed the Dean policy; 2) the Dean policy is expressly designated a "management policy" and fails to make any reference, explicit or implicit, to the at-will provision in the employment agreement.; and 3)  the Dean policy generally uses permissive language, merely permitting Dean to take certain steps in connection with investigations and potential disciplinary actions, without obligating Dean to take those steps.  Given all of this, the Court of Appeals concluded the "only when" rule was not satisfied under these facts, finding this claim should have been dismissed at summary judgment.

Duty of Good Faith and Fair Dealing

In at-will employment, employers have no duty to terminate employees in good faith because imposing "a good faith duty to terminate would unduly restrict an employer's discretion in managing the work force."  While other cases have embraced this holding, the Court of Appeals noted that this holding might be limited to terminations of employees with at-will contracts.  Because the Court concluded Bukstein was an at-will employee, this claim automatically failed too.

The case is Donald Bukstein, M.D. v. Dean Health Systems, Inc., Appeal No. 2016AP920 (July 20, 2017).

Thursday, July 27, 2017

7th Circuit Reverses Summary Judgment in Retaliation Case Against Walgreens

The Court of Appeals for the Seventh Circuit decided a case earlier this month whereby it reversed summary judgment in favor of Walgreen's whereby a former employee, Regina G. Baines, claims she was not rehired in retaliation for EEOC discrimination charges she filed some five years previously.  As is the mantra in employment law cases:  the devil lies in the details.  This case presented some unique facts that require special attention.  (The case originated out of my city, Milwaukee, by the way!)


The plaintiff, Baines, began working for Walgreens in 2005 as a pharmacy technician at a Walgreens store in Milwaukee, Wisconsin and worked there until approximately October 2008 when she received authorization to transfer to a Walgreens location in Atlanta, Georgia.  However, when she arrived in Atlanta, there was "no work."  Baines filed her 1st EEOC charge against Walgreens in July 2007 while with the Milwaukee store.  Members of management met with Baines in response to her EEOC charge, including district manager, Michelle Birch, who asked Baines what she wanted.  Baines stated that she wanted to be promoted to "senior technician" and transferred to a different story.  When she received neither, she filed her second EEOC charge against Walgreens in October 2007 alleging retaliation.

Later, Baines received approval to transfer to a Walgreens in Atlanta and when she found no work, she filed her third EEOC charge in January 2009 with the EEOC in Georgia alleging retaliation.  Baines later moved back to Wisconsin.  In July 2014 Baines applied for a pharmacy technician position with Walgreens in Wauwatosa, Wisconsin as they were looking for pharmacy technicians and the pharmacy supervisor there, Hannah Ruehs, managed the hiring process.  Baines called and discussed the position with Ruehs by telephone and was told that her application would be reviewed and she would be contacted if she had done well on her assessment test.  On July 25th, Ruehs called and told Baines she had selected Lisa Martin for the position.  Martin had less experience than Baines at the time and, in fact, Baines was the only applicant who had prior experience working as a Walgreens pharmacy technician.

Martin testified at her deposition that Ruehs told her in February 2015 that she did not hire Baines because Birch intervened.  Martin testified that Ruehs said that she had wanted to hire someone named "Regina" and that she "really liked" Regina and she "really wanted to hire her."  However, Ruehs told Martin:  "You didn't hear it from me, but I was told from higher up, Ms. Birch, that I could not hire her."  Ruehs said she did not know why Birch forbade her from hiring Baines.

After Walgreens chose not to hire Baines in July 2014, she filed her fourth EEOC charge against Walgreens alleging retaliation, which provided the basis for the facts in this appeal.


To survive summary judgment on a retaliation claim, a plaintiff has to offer evidence of "(1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two."  Filing an EEOC charge is a "statutorily protected activity" and failing to hire is a "materially adverse action."  The issue in this case was whether there was a "causal connection between the two":  Baines' EEOC charges and Walgreens' decision not to rehire her.  A plaintiff demonstrates a causal connection by showing that the defendant "would not have taken the adverse ... action but for [her[ protected activity."

The district court below, in granting summary judgment in favor of Walgreens, held that Baines failed to establish a causal connection.  The district court did assumed Martin's testimony about what Ruehs told her was admissible, but explained:  "Martin did not testify that Ruehs told her that Birch did not hire Baines because of the prior EEOC complaints.  Martin's testimony, thus, falls short of a showing that Birch was aware of the 2007 and/or 2009 EEOC charges in 2014 and did not hire Baines because of discriminatory animus."  The district court also noted the number of years that had passed between Baines' EEOC charges and the alleged retaliation in 2014, and that this time gap weakened the causal inference that Walgreens failed to rehire Baines because of her prior charges.

In reversing the district court's decision, the 7th Circuit emphasized the other tremendous pieces of circumstantial evidence Baines had showing a causal connection (also noting that rarely do plaintiffs have direct evidence of retaliation).  In addition to Martin's testimony about what Ruehs told her about being commanded  not to hire Baines (the Court discussed at length how a command is not a statement which makes it not hearsay and, thus, admissible), Baines also had evidence that her application and interview scores were mysteriously missing and that Walgreens offered no explanation for how or why, Ruehs hired someone with less experience than Baines, Ruehs initially denied even having interviewed Baines, and the unusual behavior of Birch in the hiring process of the pharmacy tech position when evidence showed Birch never played a role in the hiring of this position.  Because Birch played a role in Baines' first EEOC charge and then intervened in her rehire, which was highly unusual, this provided further substantial circumstantial evidence of a causal connection.

With respect to the fairly significant time gap between Baines' EEOC charge filings and Walgreens' failure to rehire her, the Court noted that Baines was not using this piece of circumstantial evidence as the sole piece of evidence to show a causal connection--that it was merely one piece of circumstantial evidence.

Key take away:  Just because there is a significant gap between statutorily protected activity and an adverse employment action does not doom a case when there is present other significant pieces of circumstantial evidence.  The 7th Circuit appreciates the fact plaintiffs almost always have to prove retaliation cases circumstantially and this case shows how evidence needs to be taken as a whole, with one piece of circumstantial evidence (temporal proximity) not capable of dooming an entire case.

Wednesday, July 26, 2017

Wisconsin Supreme Court Grants Cert in Unemployment Absenteeism Case

My colleague, Victor Forberger of the Wisconsin Unemployment blawg, recently brought to the fore that the Wisconsin Supreme Court has granted cert in a case involving absenteeism under the newer change to the unemployment insurance statute that created stricter standards for employees seeking benefits when they are terminated for absenteeism.  As explained by Attorney Forberger:

At issue in Beres is one of the new misconduct provisions that became effective in January 2014:
(e) Absenteeism by an employee on more than 2 occasions within the 120 day period before the date of the employee's termination, unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature, or excessive tardiness by an employee in violation of a policy of the employer that has been communicated to the employee, if the employee does not provide to his or her employer both notice and one or more valid reasons for the absenteeism or tardiness.

Wis. Stat. § 108.04(5)(e). In this provision, the number of absences and tardies was greatly reduced from what was originally in Wis. Stat. § 108.04(5g).   Prior to these changes, this absenteeism and tardiness provision in Wis. Stat. § 108.04(5g) allowed for disqualification for 6 or more tardies or 5 or more absences in a 12-month period and had detailed requirements about about employer notice to employees of this disqualification possibility and how employees had to notify the employer of an absence of tardy. During its meetings, the Advisory Council, after rejecting the Department's proposal, had agreed to amend sub-section (5g) in the following manner:
(5g) DISCHARGE FOR FAILURE TO NOTIFY EMPLOYER OF ABSENTEEISM OR TARDINESS. (a) If an employee is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive, and the employer has complied with the requirements of par. (d) with respect to that employee, the employee is ineligible to receive benefits until 6 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 6 times the employee's weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee's weekly benefit rate shall be the rate that would have been paid had the discharge not occurred.
(b) For purposes of this subsection, tardiness becomes excessive if an employee is late for 6 4 or more scheduled workdays in the 12 month 120 day period preceding the date of the discharge without providing adequate notice to his or her employer.
(c) For purposes of this subsection, absenteeism becomes excessive if an employee is absent for 5 2 or more scheduled workdays in the 12âˆ'month 120 day period preceding the date of the discharge without providing adequate notice to his or her employer.
(d) 1. The requalifying requirements under par. (a) apply only if the employer has a written policy on notification of tardiness or absences that:
a. Defines what constitutes a single occurrence of tardiness or absenteeism;
b. Describes the process for providing adequate notice of tardiness or absence, and, regarding tardiness, which gives the employee a reasonable time for providing notice and which at least allows the employee the opportunity to provide notice as soon as practically possible; and
c. Notifies the employee that failure to provide adequate notice of an absence or tardiness may lead to discharge.
2. The employer shall provide a copy of the written policy under subd. 1. to each employee and shall have written evidence that the employee received a copy of that policy.
3. The employer must have given the employee at least one warning concerning the employee's violation of the employer's written policy under subd. 1. within the 12 month period preceding the date of the discharge.
4. The employer must apply the written policy under subd. 1. uniformly to all employees of the employer.
But, the Department bill that set forth what the Advisory Council had proposed, see 2013 SB200, did NOT contain these provisions. When the first public hearing for 2013 SB200 was under way on 29 May 2013, the Joint Finance Committee introduced an amendment to the then budget bill, 2013 AB40, which included the absenteeism language now at issue in Beres. See "JFC UI Amendments" (29 May 2017) (available at
Into this messy legislative history arrives a relatively simple fact pattern. The employer nursing home in Beres had an attendance policy which indicated that employees would be terminated for a single absence during their 90-day probationary period if they were a no call, no show. The claimant in this case, Ms. Beres, was extremely ill and did not report to work or call in her absence. The employer called her home, and her spouse indicated that she was too sick to work. The employer then terminated her employment, and the Department denied her claim for unemployment benefits as misconduct because of absenteeism.
The Commission over-turned that disqualification because the claimant was not responsible for her illness and a single illness did not meet the threshold disqualification of more than two absences within 120 days.
The Department, however, appealed the case to circuit court and argued that employers have the option under this disqualification to set their own attendance standard for what will constitute misconduct pursuant to this statutory phrase: "unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature." For the Department, the employer's absenteeism policy — a single no call, no show absence during the probationary period — was the attendance requirement "specified" by the employer and so constituted misconduct under this provision. The circuit court agreed with the Department, and the Commission appealed.
The appeals court agreed with the Commission 2-1. The Department has now taken this case to the Wisconsin Supreme Court. In granting review, the court added the following additional question to be examined:
Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?
Recall that in Operton, three justices proclaimed that agency deference unconstitutionally impinges on the power of elected judges to decide what the law is on their own initiative.
A decision in this case raises two major problems. First, the court could gut agency deference. As a result, any and all decision by administrative agencies will be litigated under de novo review in circuit court and again at the appeals court. Certainly, there will be more billable hours. But, there will also be much greater expenses.
And, I doubt the outcome will be all that friendly to workers. Take the Wisconsin Bell/Carlson case, the disability discrimination case. That case is completely upended if de novo review is always applied by every court because judicial independence mandates such independence.
Second, the absenteeism provision will allow an employer to have a policy of a single absence being grounds for discharge. Any discharges that then occur under this policy will count as misconduct for UI purposes. Keep in mind that there is nothing here that requires this policy to be uniformly applied (the point will probably be litigated but I suspect that any uniformity requirement will be tossed). This disqualification would be a disaster for unrepresented workers. Represented workers will also be confronted with a significant change in the legislative landscape and new bargaining demands to change absenteeism policies to match what DWD will allow as misconduct.
Note that this UI disqualification now applies to WC benefit cases as well. How many times do folks on partial WC disability miss work?
Be sure to monitor this one as this will create substantial burdens and obstacles for employees seeking unemployment benefits when they are terminated for attendance.

Updated: Worker's Guide to Unemployment Insurance

The wonderful people at the Unemployment Appeals Clinic at the University of Wisconsin Law School (my alma mater) have updated their "Worker's Guide to Unemployment Insurance" to update several changes in the law and case law surrounding unemployment insurance in Wisconsin.  Be sure to consult this booklet if you are someone going through the appeals process or at least skim it if you handle unemployment insurance issues!  The guide is available here.

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.


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.


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.


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.


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.


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.


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

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.


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.


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)