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).