Employment Law Matters

Fourth Circuit joins D.C. Circuit in striking down the NLRB's embattled Notification of Employee Rights

Maria Danaher — Fri, 14 Jun 2013 17:14:53 -0500

The 4th U.S. Circuit Court of Appeals has affirmed an April 2012 decision of the U.S. District Court for the District of South Carolina (Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, 4/13/12), striking down the National Labor Relations Board's (NLRB) controversial notice posting rule. The rule would have required most U.S private-sector employers -- including most of the 6 million small businesses in the U.S. -- to post a written notice of employee rights regarding unionization, including specific language informing individuals of their rights not to unionize, with penalties attached for employers who failed to post the notice under the conditions required by the NLRB. Under the proposed regulation, the Notice would have been required whether or not an unfair labor practice charge had been filed against the employer. The regulation was proposed in 2010 and was published as a final rule in August 2011, set to become effective in November of that year. The effective date was postponed to January 31, 2012, then further postponed until April 30, 2012, and was effectively suspended by the federal court’s April 13, 2012 ruling, which now has been upheld. Chamber of Commerce of the United States v. NLRB, 4th Cir., No. 12-1757, 6/14/13.

Pointing out that the NLRB does not have authority to enforce the Act proactively, the 4th Circuit agreed with the lower court that "the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice [ULP] charges and conducting representation elections upon request." The Court stressed that "[a]lthough the Board is specifically empowered to 'prevent' unfair labor practices, the Board may not act until an unfair labor practice charge is filed alleging a violation of the Act." In a thorough and well-reasoned opinion, the Court reviewed the NLRA's plain language, structure, and legislative history, along with the history of subsequent labor legislation, in holding that the Board was not empowered to promulgate the rule. "Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so."

The 4th Circuit's opinion is even more favorable for employers than the recent decision by the D.C. Circuit Court of Appeals,National Association of Manufacturers v. National Labor Relations Board (D.C. Cir. May 7, 2013), which struck down the notice posting rule on the grounds that it violated Section 8(c) “because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus,” when, in fact, Section 8 allows employer to express their views about unions and unionization, as long as the communications contained no threat or promise.

At this time, it looks as if the notice posting requirement is out of commission for the time being, with two federal appellate courts taking the position that the NLRB is without authority to require posting. However, it remains to be seen whether this phoenix will rise out of the ashes of these opinions and, if so, in what form it will return.

Operating room nurse prohibited from working after drug rehab cannot support ADA failure to hire claim.

Maria Danaher — Mon, 03 Jun 2013 20:38:55 -0500

In a case that points out the inherent difficulty of implementing the Americans with Disabilities Act (ADA) in a situation involving safety issues, a federal district court in Connecticut determined that an operating room nurse was not qualified for protection under the ADA because he was weeks away from the end of a year-long prohibition - imposed during drug rehab - against working in an operating room or around narcotics. Talmadge v. Stamford Hosp., D.Conn, No. 3:11-cv-01239, May 31, 2013. The more difficult issue, which received little attention from the court, was whether the nurse’s unsuccessful subsequent communications regarding employment after completion of the prohibition term could support an ADA claim.

According to the court, Richard Talmadge, an operating room nurse, was caught stealing narcotics while working in a hospital’s main operating room. Talmadge enrolled in a confidential assistance program for healthcare professionals with the expectation that upon successful completion, his nursing license would not be affected. The program, Health Assistance interVention Education Network (HAVEN), advised participants to “stay away from an operating room setting and have no access to narcotics for a period of one full year.” By enrolling in the program and agreeing to its terms, Talmadge was able to avoid suspension of his license; he also received no discipline from state or federal agencies.

On May 12, 2010, Talmadge returned to the practice of nursing, but was prohibited from working in an operating room, procedure room, or recovery room setting until formally released to do so by HAVEN. Although the record is somewhat unclear, the earliest that Talmadge could have returned to such work areas was November 13, 2010.

On October 1, 2010, Talmadge submitted a handwritten application to Stamford Hospital for the position of operating room nurse, and was interviewed on that day. During the interview, Talmadge first explained that he was simply “looking for greener pastures,” but then stated that his former employer had filled his position while Talmadge was on a “leave of absence.” Talmadge did not reveal at that time that he was restricted from narcotics and from working in an operating room.

Concerned about perceived inconsistencies during Talmadge’s interviews, Stamford Hospital asked Talmadge for additional details about his history, at which point Talmadge revealed the drug theft and the rehabilitation program. Based on all of the information, the hospital decision-makers felt that Talmadge was “lying about several issues” related to his circumstances, and informed Talmadge that the hospital had “decided to explore other candidates” for the position. Talmadge filed a lawsuit under the ADA, alleging that he was not hired because of his past drug addiction.
To establish the necessary prima facie case under the ADA, an individual must show that he was “otherwise qualified to perform the essential functions of the job with or without reasonable accommodation.” The district court granted summary judgment in favor of the hospital, finding that Talmadge was not a qualified individual under the ADA when he interviewed at Stamford Hospital in October 2010, because he was unable to work in an operating room environment or access narcotics under any circumstances at that time.

While the court’s decision regarding Talmadge’s initial application was discussed and supported in detail in the court’s opinion, less than one page was dedicated to Talmadge’s argument that his subsequent contacts with Stamford, made after the expiration of HAVEN’s prohibition of his work in an OR, should be considered as new applications for employment. In determining that Talmadge’s later communications with Stamford were simply a continuation of the initial application, the court points to the wording in Talmadge’s deposition testimony, in which Talmadge stated that he heard about additional openings for operating room nurses at Stamford in December 2010, and wondered “whether [Stamford] would reconsider my application.” By doing so, the court avoids addressing the thorny issue of whether Stamford’s failure to hire Talmadge after Talmadge’s completion of the conditions of his rehabilitation would constitute a violation of the ADA. It remains to be seen whether this case will be appealed, and whether the appellate court will agree with the lower court’s characterization of Talmadge’s later communications as a simple request for “reconsideration” of the original facts of his application.

Expression of "personal contempt" in Facebook group message did not constitute protected concerted activity.

Maria Danaher — Mon, 20 May 2013 19:36:08 -0500

By now, most employers are aware of a number of “Facebook Firing” cases, in which individuals who were fired for Facebook postings have been reinstated after the National Labor Relations Board (NLRB) found the postings to have been “protected concerted activity” under the National Labor Relations Act (NLRA). However, on May 8, 2013, an NLRB Associate Counsel sent an Advice Memorandum to his Regional Director, supporting the actions of a medical group that fired an employee after her postings to a private Facebook group message. Tasker Healthcare Group d/b/a Skinsmart Dermatology, NLRB Div. of Advice, No. 4-CA-94222, May 8, 2013.

In that case, an unnamed Charging Party was employed by Tasker Healthcare Group, which was doing business as Skinsmart Dermatology, where the Charging Party performed various office duties with patients and office guests. On November 12, 2012, that employee, along with nine other individuals, the majority of whom were co-employees, participated in a private Facebook “group message” in which only the invited individuals were able to contribute postings.

The initial “conversation” focused on a planned social event for the group. Then, at some point, the Charging Party related an exchange with a current supervisor in which Charging Party had told the supervisor to “back the freak off.” She followed that posting with one in which she described the employer as “full of shit” and went on to state “FIRE ME . . . make my day. . . .” Other than Charging Party, no other current employee took part took part in this portion of the conversation until two hours later, when someone stated that the workplace was “annoying as hell” and that “there’s always some dumb shit going on.” No other employee responded and the conversation ended shortly afterward.

On the following day, one of the non-posting employees showed the message string to the employer, who then fired the Charging Party. In addition to saying that it was obvious that the Charging Party was not interested in continuing her employment, the employer also stated that there was a concern about having her work directly with patients, given her feelings about the medical practice.

Following the Charging Party’s claim that her firing was an unfair labor practice under the NLRA, the NLRB Regional Director asked for input from the Division of Advice. In his Advice Memorandum, a Division of Advice Associate Counsel acknowledged that the NLRA protects individual employees who engage in concerted activity, and further acknowledged that such activity can be undertaken by a single employee who seeks to initiate group action, or who brings group complaints to an employer. However, he then pointed out that in this case, the Charging Party “merely expressed an individual gripe” rather than engaging in a discussion of shared concerns. He went on to characterize the Facebook comments as “personal contempt” rather than discussion of the terms and conditions of employment. Based on that, the Associate Counsel specifically determined that “the Charging Party’s discharge was not unlawful because her comments were not concerted and, instead, were merely boasting and griping.”

Before making its own determination regarding whether Facebook comments are protected concerted activity, however, an employer should recognize that there is a line of cases that use the “inherently concerted” analysis. In those cases, the discussion of certain topics – including wages, work schedules, and job security – are found to involve “mutual workplace concern” and, therefore, contemplation of group action is not necessary in order to find concerted activity. Therefore, if on-line discussions include those topics, further analysis should be done before adverse action is taken against the employee.

Gender stereotyping based on a person's non-conforming behavior violates Title VII.

Maria Danaher — Mon, 06 May 2013 21:47:38 -0500

As the U.S. Supreme Court has stated, Title VII is intended to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotyping.” Recently, a federal court in Virginia refused to dismiss the claim of a male employee who said that he was treated differently and subjected to a hostile work environment because he was viewed as effeminate and told that he was not a “real man.” Henderson v. Labor Finders of Virginia, Inc., E.D. Va., No. 3:12cv600 (April 2, 2013).

Raymond Henderson began working for Labor Finders of Virginia, Inc., a staffing company, in April 2010. Although the company had a policy of giving preference to employees who had their own transportation, Henderson (who had transportation) was assigned to projects only when it was difficult to find someone else to fill a work assignment. Henderson filed an EEOC charge and, ultimately, a lawsuit, alleging that he was discriminated against because Labor Finders found him to be effeminate. Henderson alleged that he was routinely subjected to verbal epithets and slights by and in the presence of his supervisors, and was told he “looked just like a woman,” that he was not a “real man,” and that he was “a woman pretending to be something else, because he . . . was definitely not a male or a man.”

Although Henderson alleges that he tried to complain to Labor Finders’ management, he never received a response and, in fact, was ultimately told that he was going to lose his job because he was a “troublemaker” and was creating problems for Labor Finders. He filed his lawsuit against the company and a number of individuals, claiming violation of Title VII and a number of state laws. The individuals were dismissed from the lawsuit, as Henderson had failed to name them in his EEOC charge. Labor Finders then filed a motion to dismiss the state and federal claims against the company.

The U.S. District Court for the Eastern District of Virginia granted Labor Finders’ motion as to the state law claims, but denied it with respect to the federal Title VII issues. Henderson was able to overcome the motion to dismiss the Title VII claim because, according to the court, he presented facts sufficient to “allow the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.”

In its analysis, the court pointed out that Henderson’s claim “presents a tension between two well-settled principles of law.” First, it is undisputed that Title VII does not afford a cause of action for discrimination based on sexual orientation. However, at the same time, employers are not permitted to assume or insist that employees match the stereotype associated with their gender group. Title VII permits recovery, for instance, for a male employee who is treated less favorably because he is viewed as “unmanly.”

In a detailed analysis of Henderson’s claims, the court held that Henderson had set forth sufficient allegations of gender stereotyping to move his claim forward. The court found that Henderson’s perceived failure to conform with accepted gender norms was thought to reflect poorly on Labor Finders, and was viewed as displeasing that company’s clients. Therefore, Henderson’s claim that he was treated differently because of his appearance and behavior was sufficiently set forth in his complaint. The court further held that Henderson sufficiently stated a claim for hostile work environment under the gender stereotyping theory by detailing the statements made by and around supervisors, including the remarks that he was not a “real man” and “looked just like a woman.”

The line between sexual orientation, which is not yet prohibited by federal law (although prohibited under some state statutes), and discrimination “because of sex” can be difficult to draw. However, employers must recognize that an employer who takes an adverse action against an individual because he or she does not fit within sexual stereotypes is engaging in discrimination, because that discrimination would not have occurred but for the individual’s sex. If a company’s disciplinary actions are meant to punish or belittle non-compliance with gender stereotypes, the actions may constitute a violation of Title VII’s “because of sex” provision.

Ostracism and petty mistreatments may collectively rise to the level of hostile work environment.

Maria Danaher — Mon, 22 Apr 2013 07:21:35 -0500

A female plumber on “light duty” in the City of Chicago’s Department of Sewers filed a lawsuit alleging that because she was female, her supervisor assigned menial work to her, prohibited her coworkers from interacting with her, and subjected her to alleged “verbal violence.” While the district court viewed each of those actions individually and found that none constituted hostile work environment under Title VII, the7th U.S. Circuit Court of Appeals reversed the lower court’s summary judgment in favor of the City, and determined that the case should move forward to trial, on the basis that a jury could find that the collective treatment could rise to the level of hostile environment. Anna M. Hall v. City of Chicago, 7th Cir., No. 11-3279, March 29, 2013.

In 1999, Anna Hall, a plumber for the City of Chicago, began a lengthy disability leave due to a work-related injury. Hall returned to work in 2003 with a 25-pound lifting restriction, and was unable to resume working as a plumber. The City then assigned Hall to light duty in the House Drain Inspectors Division of the City’s Department of Sewers, where she was supervised by Gregory Johnson, the Division supervisor. Johnson assigned Hall to alphabetize various files for several weeks and, in fact, gave her the same files over and over again. A few weeks later, Johnson did the same with reviews of drainpipe videos, on which Hall took notes which were never read – as Johnson already had reviewed the videos and taken his own notes prior to having Hall undertake the task. After several weeks, Hall complained to the department’s personnel director about the assignments, who dismissed the complaints and allegedly called Hall a “trouble maker” in the process.

In addition to assigning the menial work, Johnson prohibited the other Division employees from speaking to Hall, ultimately excluding her from meetings, and precluding her from taking on additional responsibilities within the group. Johnson also directed anger towards Hall in other ways, making comments – overheard by Hall – that he “could slap that woman and get a promotion” and that he might “go postal on that woman.” On one occasion early in 2004, Johnson purposely bumped into Hall, after which Hall contacted the police, the union, and her lawyer, and ultimately filed a Violence in the Workplace Report with the City. Eight days after that Report, a written reprimand was issued to Johnson.

Hall continued to do the assignments given to her by Johnson until 2005, when she left the Division and filed a lawsuit, alleging that Johnson discriminated and retaliated against her, and that the City failed to promote her in retaliation for her complaints. The lower court entered summary judgment against Hall, dismissing the complaint. On appeal, Hall pursued only her hostile work environment claim. The Seventh Circuit reversed the lower court’s decision, and remanded the case for further proceedings on that claim.

Title VII makes it unlawful to treat an employee differently because of a protected characteristic, including gender. To survive summary judgment on her Title VII hostile work environment claim, Hall had to provide evidence that the alleged harassment was severe or pervasive, that the hostile conditions were because of her sex, and that the company should be held liable for Johnson’s actions. The Seventh Circuit determined that Hall had done all three.

First, the Court stated that it was improper to “carve up the incidents of harassment and then separately analyze each incident, by itself, to see if each rises to the level of being severe or pervasive.” Instead, the Seventh Circuit looked at the totality of the circumstances and found that a jury could conclude that Johnson’s ongoing conduct was designed to ostracize Hall from the rest of the Division.

Next, while admitting that this was a “close” case, the Court found enough evidence in the record from which a jury could infer that Johnson was motivated by Hall’s gender. That evidence consisted largely of Johnson’s references to “that woman” in his remarks about Hall. It is of note that Hall was not the only woman in the Division - Johnson’s secretary also was female. However, the Court pointed out the fact that Hall was in a “traditionally male role” (that of plumber), while the secretary was not, and referred to research on gender stereotyping.

Third, Hall was able to proffer sufficient evidence on which a jury could base a finding of liability against the City. While the City took prompt action after Hall’s Violence in the Workplace Report, the record also showed that Hall first raise her concerns about her assignments a few weeks into her light duty position, but allegedly was met with the statement that Hall was a “trouble maker.” Further, Hall’s report to the union and to the police of the bumping incident in 2004 provided sufficient notice to the City of the issues related to Johnson’s actions.

It is important to understand that the Seventh Circuit’s holding is not an ultimate determination of Hall’s hostile environment claim. However, it does indicate that courts are likely to: (1) view hostile work environment complaints through a broad lens, looking at the totality of the circumstances to determine whether behavior is “severe or pervasive”; (2) interpret remarks that include references to gender (“that woman”) as an indication that the remark was made because of the sex of the person being mentioned; and (3) assume that a jury may find a company liable if prior complaints have been made without some active response. In addition, the case is a warning to employers regarding the supervision of individuals on “light duty” and a directive to assure that company anti-discrimination policies are enforced for those employees, even though they are in positions other than their own.

Does partial deafness constitute a disability under the ADAAA? The question remains unanswered.

Maria Danaher — Mon, 15 Apr 2013 15:35:33 -0500

A federal court in the Eastern District of Pennsylvania granted summary judgment for a newspaper/employer who had been sued after the lay-off of a female page designer who claimed that she was let go because of her gender and her deafness in one ear. Mengel v. Reading Eagle Company, EDPA, No. 11-6151 (March 28, 2013).

The Americans with Disabilities Amendments Act (ADAAA) was implemented to make it less difficult to establish a disability, and is more focused on whether an accommodation can be provided to allow an impaired individual to obtain or maintain employment. The regulations associated with the ADAAA, in fact, include a list of per se disabilities, for which no proof is required. Those disabilities include: deafness, blindness, missing limbs, autism, cancer, and a number of other physical and mental impairments. However, the definition of “disability” under the ADAAA remains unchanged from the original Americans with Disabilities (ADA). Therefore, in order to be entitled to the rights and privileges established under the Act, an individual must show a physical or mental impairment that substantially limits a major life activity, or must show a record of such impairment, or that he or she is “regarded as” being limited in that way.

Christine Mengel began her employment with the Reading Eagle Company in 1999. In 2007, Mengel became deaf in one ear and began having balance problems as a result of surgery to remove a brain tumor. Mengel’s supervisors were aware of those problems, but Mengel continued to perform her job without accommodation.

In January 2009, Reading Eagle decided to perform a reduction-in-force layoff. It rated its employees in seven categories, and eliminated the lowest scoring employees. The ratings categories included: work quality, productivity, versatility, tenure with the company, and inter-personal/teamwork skills. Mengel received a total score of 13 out of 46, the lowest score in her department – the next closest score was a 24. Mengel and two of her co-workers were laid off from her department. The other two individuals were both male employees.

Mengel filed a lawsuit alleging both disability and gender discrimination, stating that she always had received good performance evaluations and that, therefore, her ranking was unfairly low because of her protected characteristics.

The district court granted summary judgment to Reading Eagle on the gender claim, finding that the company had presented a legitimate, nondiscriminatory reason for Mengel’s lay-off (the employee rankings), and that Mengel had not shown sufficient evidence of pretext to overcome the summary judgment motion. The court based its determination on the fact that Reading Eagle produced the matrices and criteria that it used in ranking all of the employees for lay-off, stating that “courts generally do not second-guess the wisdom of a business’ performance evaluations and ratings of its employees” when evidence of the same is proffered.”

The court took an interesting path in analyzing Mengel’s disability claim, granting Reading Eagle’s motion for summary judgment on the basis that Mengel had failed to set forth a prima facie case of disability discrimination. To successfully present a prima facie case, Mengel was required to show that she was a disabled person within the meaning of the ADAAA; that she as qualified to perform the essential functions of her job, with or without accommodation; and that she suffered an adverse employment action as a result of discrimination.

The court found that Mengel had not set forth a prima facie case of disability discrimination because she was unable to provide evidence of the third element by showing “a logical inference of causation between the alleged disability and the adverse employment action.” In its analysis, the court was able to state – without definitively holding - that hearing loss in one ear may not constitute a disability within the meaning of the ADAAA. It did so by finding that although Mengel could not prove that her partial deafness was a disability, Mengel was able to show that she may have been “regarded as” disabled, because her managers were aware of her impairment. However, according to the court, Mengel’s prima facie case failed, largely because the company became aware of her impairment in 2007 and did not implement her lay-off until 2009. The court found that this long time gap refuted the necessary causation, and dismissed Mengel’s case as a matter of law.

It would be unwise to draw any conclusions here regarding whether partial deafness can definitively be excluded as a “disability” under the ADAAA. The broadened definition of that term, along with the Act’s stated intention of including more individuals within its purview both lead to the conclusion that no blanket distinctions should be drawn from this district court decision. Attorneys for both employers and employees will be interested in an appellate determination of this issue.

Employer's judgment about what constitutes an essential job function carries substantial weight.

Maria Danaher — Mon, 08 Apr 2013 06:38:28 -0500

Is the ability to be licensed to drive a commercial vehicle an “essential function” of a warehouse manager’s position, even though that manager rarely is required to drive? According to the 8th U.S. Circuit Court of Appeals, that answer depends largely upon the job description developed by the employer, and not on the employee’s specific personal experience in the job. Knutson v. Schwan’s Home Service, Inc., 8th Cir., No. 12-2240, (April 3, 2013).

Jeffrey D. Knutson was employed as a Local General Manager (LGM) of a depot for Schwan’s Home Service, Inc. until 2009, when his employment was terminated. That termination was based upon the fact that Knutson was no longer able to meet the physical standards set forth in the job description for his position. Although Knutson sued Schwan’s under the Americans with Disabilities Act, both the district court and the Eighth Circuit determined that Knutson was not qualified for protection under the ADA, because he was unable to fulfill the essential functions of his job under any circumstances.

During his employment with Schwan’s, Knutson excelled at his job as an LGM. Although the position description for that job specifically states that an LGM must meet the Federal Department of Transportation (DOT) eligibility requirements, which require such individuals to be “DOT qualified” to drive commercial motor vehicles, Knutson had driven a truck “less than 50 [times]” since becoming a manager in 2007.

In March 2008, Knutson suffered a serious eye injury, after which he was unable to obtain the medical waiver necessary to qualify him for the required DOT certification. Because of that fact, Schwan’s placed Knutson on a 30-day leave of absence to either obtain the required certification or find a non-DOT-qualified position within the company. Knutson was unable to do either within that 30 day period, and was discharged from his job. Knutson filed a lawsuit, claiming that he was qualified as disabled under the ADA, which protects an individual who is able to undertake the essential functions of his or her position, with or without an accommodation. The lower court dismissed Knutson’s claim, finding that the requirement to hold a commercial driver’s license is an essential function of the manager’s position. Because Knutson could not perform that essential function under any circumstance, he was not qualified for protection under the ADA. That decision was upheld by the Eighth Circuit.

Knutson claimed that being DOT qualified to drive a delivery truck was not essential to his job, because he rarely drove a commercial vehicle. However, the Eighth Circuit pointed out that under the ADA, an employer’s judgment about what constitutes an essential function is “highly probative.” In this case, the position description for the LGM position specifically required the commercial driver’s license. While managers do not necessarily drive the delivery trucks every day, or even every week, they are required to be able to driver those trucks when needed, and on occasion must step in and take over a route when a driver is absent. Schwan’s was able to show that if managers did not drive trucks, less product would be delivered and less driver training would be provided, both affecting sales. Based on that information, the Court determined that although Knutson claimed to have driven trucks infrequently, Knutson’s specific experience “is of no consequence in the essential functions equation.” Instead, in determining the essential functions of the LGM position, the Court relied on the written job description, the company’s judgment, and the experiences of all LGMs, and upheld summary judgment in favor of the company.

This case underscores the importance of clear, complete, and up-to-date, job descriptions, and documentation of business-related reasons for decisions affecting employees. In this case, the Court’s determination was influenced by the fact that the company consistently had documented and enforced the DOT-related requirements for its LGMs, and further was able to proffer evidence showing that the essential function was directly related to financial elements of the business’ success.

Dishonest response on an initial application can come back to haunt an employee.

Maria Danaher — Mon, 01 Apr 2013 21:46:59 -0500

In a non-precedential opinion, the 3d U.S. Circuit Court of Appeals recently upheld a hospital’s firing of a security guard who had admitted that he was a recovering drug addict. Because that firing was based upon the fact that the employee previously had denied prior drug or alcohol addition/treatment, the court found that the hospital’s reason for the termination – the employee’s dishonest disclosure – was not a pretext for discrimination. Reilly v. Lehigh Valley Hospital, 3d Cir., No. 12-2078, March 29, 2013.

Robert Reilly was employed by Lehigh Valley Hospital (LVH) as a part-time Security Officer from August 2006 until May 2, 2008. During the application process, Reilly was asked to respond to the following two questions: (1) “Have you ever been recognized as or diagnosed with alcoholism or drug addiction?” and (2) “Have you ever been or are you now being treated for alcoholism or drug addiction?” Reilly answered “No” to both of the questions, and left blank a question that asked for information on any such treatment. A handwritten note on the application says “denies drug/alcohol addiction.” The application form included a statement that “falsifying of this information could result in withdrawal of the employment offer or if subsequently discovered termination of employment.”

On April 5, 2008, Reilly was admitted to the Emergency Room of LVH to receive treatment for a work-related eye injury. During that visit, Reilly disclosed to the treating physician a history of narcotics use and admitted that he was a recovering addict. When an LVH employee sustains a possible work-related injury and is treated by LVH, the medical records routinely are furnished to the hospital’s Health Services Department, which manages and administers workers’ compensation issues. Upon receiving Reilly’s records, Health Services informed LVH’s Human Resources Department of Reilly’s statement regarding his addiction and recovery. Reilly was fired on May 2, 2008 for failure to disclose the information during the application process.

Reilly filed a lawsuit against LVH alleging disability discrimination. During a deposition in the case, Reilly testified that following a conviction for DUI in 1995, he attended approximately 40 hours at a drug and alcohol treatment center as part of an Accelerated Rehabilitation Disposition program. He testified that he did not consider himself to have received addition treatment at that point, because he continued to abuse drug and alcohol after that time.

LVH’s motion for summary judgment in the case was granted by the district court, and Reilly appealed. The Third Circuit upheld the decision. In applying the now well-known McDonnell Douglas burden-shifting framework, the Third Circuit found that Reilly was able to set forth a prima facie case of discrimination, and that LVH was able to proffer the required legitimate business reason for its action. The district court found – and the Third Circuit agreed – that Reilly failed to satisfy the third step by adducing sufficient evidence to show that LVH’s reason was simply a pretext for discrimination.

The Court viewed the primary issue in the case as “whether the decision-maker at LVH could regard Reilly’s responses as dishonest.” According to the Court: “The answer to that question is resoundingly, ‘yes.’” The evidence established that Reilly received 40 hours of addiction treatment, and that he regularly attended and still attends AA and NA meetings. In spite of those facts, Reilly answered “no” to questions on the employment application asking whether he had ever been or currently was “recognized as,” diagnosed with,” or “treated for” alcohol or drug addiction. Given that circumstance, Reilly is unable to prove that LVH’s proffered reason for his firing – dishonesty – was a pretext for discrimination.

This case is not a license to fire individuals simply because they are or have been in drug or alcohol rehabilitation. In fact, it is important to recognize that under the American with Disabilities Act, an individual who is in recovery for drug or alcohol addiction may be considered to be protected under the Act. However, this case does point out the fact that language on an employment application clearly informing applicants that dishonest responses can lead to non-hire or even firing will be upheld by a court.

8th Circuit upholds jury's decision that if employee is prohibited by his doctor from engaging in the essential functions of his job, no accommodation is necessary.

Maria Danaher — Mon, 25 Mar 2013 20:59:03 -0500

The 8th U.S. Circuit Court of Appeals recently held that jury was justified in finding that an employer is not required to engage in an onsite evaluation to interactively create a reasonable accommodation for a disabled employee, if a treating physician’s restrictions would prevent that individual from performing those essential functions at all. Hohn v. BNSF Railway Co., 8th Cir., No. 12-1041, February 28, 3013.

Frank Hohn was hired by BNSF Railway Co. (“BNSF”) in 1997 as a locomotive machinist at the railway’s facility in Alliance, Nebraska. As a locomotive machinist, Hohn performed servicing, maintenance, and troubleshooting functions, which included frequent use of machinery, walking on uneven surfaces, stooping, kneeling, climbing ladders, and working in a 360 degree visual field, meaning that Hohn worked “within, around, over and under locomotives.”

In 2004, Hohn’s supervisors and co-workers noticed that Hohn was displaying signs of vision impairment, including walking slowly and cautiously, missing handrails onto which he tried to grab, and not seeing people approaching from the side. Hohn ultimately was diagnosed with advanced stage retinitis pigmentosa, a degenerative eye disease which causes tunnel vision and often leads to blindness. Hohn’s optometrist recommended restrictions for Hohn that included no climbing or working on unprotected heights, no operating vehicles or machinery, and no jobs that required more than 15 degrees of visual field.

BNSF’s medical field officer, Dr. Clark, reviewed the restrictions, and agreed with them. In light of those restrictions, it was determined that Hohn was unable to perform the essential functions of the machinist position. Although the company’s regional medical director supported an on-site evaluation to determine whether any accommodations existed that could return Hohn to work, Dr. Clark concluded that Hohn could not perform an on-site evaluation without running afoul of the restrictions imposed. Hohn was not allowed to return to work, and ultimately filed a lawsuit alleging violation of the Americans with Disabilities Act and the Nebraska Equal Opportunities Commission. His case went to trial at which the jury found in favor of BNSF on the disability discrimination and retaliations claims. (Hohn also filed a whistleblower claim that was dismissed on summary judgment and, therefore, was not heard by the jury.)

The Eighth Circuit upheld the jury verdict, finding that in order for Hohn to have prevailed at trial, the jury would have had to find that Hohn could have performed the essential functions of his machinist position, with or without accommodation. However, because Hohn’s restrictions - imposed by his own doctor - essentially precluded Hohn from returning to the workplace under any circumstances, the company was unable to develop or implement any accommodations that would have been consistent with the restrictions.

At trial, Hohn disputed the restrictions, testifying that he could have performed the duties. However, he failed to provide any medical evidence of that fact or to contradict the restrictions imposed by his own optometrist. The jury verdict, then, was not “against the weight of the evidence,” because, according to the court, the ADA “does not require en employer to permit an employee to perform a job function that the employee’s physician has forbidden.”

While the rationale of this holding seems somewhat circular, the issue is straightforward. Under the ADA and parallel state statutes, an employee must be able to perform the essential functions of his position, with or without accommodation, in order to be employed. In this holding, the Eighth Circuit stated that because Hohn’s own doctor found that there were no circumstances under which Hohn could perform the essential functions of his position, BNSF was justified in assuming, from that fact, that no reasonable accommodation existed which would have allowed Hohn to return to work.

Employers should not draw from this case the conclusion that an employee with extensive medical restrictions can never be accommodated. To the contrary, had Hohn shown that there was an open position for which he was qualified and into which he could have moved, the result of the jury trial and, perhaps, the appellate decision, may have been different. This decision was based primarily on the fact that the Eighth Circuit’s review in this case was to determine whether or not the jury’s verdict was against the weight of the evidence. The court found that it was not.

Facebook postings showing misuse of FMLA leave can form sufficient legal basis for termination.

Maria Danaher — Mon, 11 Mar 2013 16:18:48 -0500

Based on the number of “Facebook” decisions from the National Labor Relations Board over the past two years, most employers understand that when employee Facebook postings constitute “protected activity” under the National Labor Relations Act, the postings can be legally protected. However, the NLRA is not the only federal law that can be implicated in Facebook-related firings. A federal district court in Michigan recently held that a hospital that fired an employee while she was on medical leave did not violate the Family and Medical Leave Act (FMLA), because the employee had posted - on her Facebook page - photos and text about vacation activities that were inconsistent with her medical restrictions, and then lied about those activities. Lineberry v. Richards, E.D.Mich., No. 2:11-13752, February 5, 2011.

The FMLA prohibits employers from discriminating against or retaliating against employees for taking FMLA leave, and provides that an employee returning from such leave shall be reinstated to his or her employment position or an equivalent position. However, the regulations associated with the FMLA establish that interference with an employee’s rights does not constitute a violation of the FMLA if there existed a “legitimate business reason” unrelated to the exercise of FMLA rights for the employer’s action. Therefore, an employer can avoid FMLA liability by showing that it would have taken the adverse action even absent the employee’s leave under that Act.

Carol Lineberry had been employed by the Detroit Medical Center (DMC) as a Registered Nurse for over a year when she injured her back in a work-related incident in January 2011. After Lineberry’s physician ordered her not to return to work, Lineberry requested and was granted FMLA leave from January 27 through April 27, 2011, as well as over $3,000 in short-term disability (STD) benefits. During that leave, Lineberry took a pre-planned, pre-paid vacation to Mexico from February 26 to March 2, 2011. Her physician okayed the trip, stating that he believed that it would not be as physically demanding as Lineberry’s performance of her work duties, which had included 12-hour work days of walking and moving patients on stretchers.

While on vacation, Lineberry posted photos of herself riding in a motorboat, and holding her young grandchildren, one in each arm, as she stood. She also posted details of her days, which included baby-sitting those grandchildren and various other physical activities. Based on those postings, Lineberry’s co-workers complained to Lineberry’s supervisor about activities that they considered to be “abuse” of Lineberry’s FMLA leave. The supervisor e-mailed Lineberry, after Lineberry complained that she had not received a get-well card from the staff, stating that since Lineberry was “well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming that you would be well enough to come back to work” after the vacation. Lineberry responded that she “was in a wheelchair” at the airports because she was “unable to stand for more than 10 minutes at a time.”

Lineberry’s supervisor relayed the information and the co-workers’ complaints to DMC’s Loss Time Management Department (LTM), who then asked Lineberry’s physician for additional clarification on Lineberry’s restrictions. On March 30, 2011, the physician informed DMC that Lineberry’s restrictions during her leave included standing for only 15-minute intervals, a lifting restriction of 5-10 pounds, and no pushing or pulling more than 20 pounds.

Based on that information, and in light of a progressive discipline policy that require an investigative meeting facing termination, Lineberry was asked to attend an April 19, 2011 meeting with a number of DMC managers, including the director of security investigations. At that meeting, Lineberry initially restated her claim that she had used a wheelchair in all airports during her travel, but rescinded that statement when reminded that airports have security films that could be reviewed; she then admitted that she had lied about that fact in her e-mail to her supervisor. Lineberry also admitted to holding her grandchildren. Lineberry’s employment was terminated after that meeting, based on the recommendation of DMC’s Human Resources department.

Lineberry filed a lawsuit against DMC and a number of individuals who were involved in the meeting and the termination decision, alleging interference with her FMLA leave and retaliation for taking that leave. DMC filed a counter-claim for reimbursement of the STD benefits. The district court granted the defendants’ motion for summary judgment on two bases.

First, the court found that because Lineberry lied about using the wheelchair and admitted that lie, that point was undisputed and, therefore, DMC treated Lineberry as they would have whether or not she was on FMLA leave when it fired her for her dishonesty. Second, the court found that DMC was entitled to summary judgment under the “honest belief” doctrine, which states that an employer can successfully defend an FMLA lawsuit if it shows that it acted upon its honest belief - based on particularized facts - that the employee has misused an FMLA leave. Here, Lineberry’s admitted dissembling about the wheelchair, and her Facebook postings about her activities, caused DMC to believe that Lineberry had abused her FMLA leave and led directly to her firing.

This decision does not mean that every vacation-related Facebook posting should lead to termination, nor does it mean that those posting always will create an “honest belief” that an employee has abused FMLA leave. However, in this instance, the hospital’s compliance with its own disciplinary policy, and its interaction with the doctor to obtain appropriate information about Lineberry’s restrictions before taking adverse action against Lineberry, indicate an awareness of the FMLA and its associated regulations which provide a strong model for other employers to follow. It also is worth noting that this a district court decision that could yet be appealed to a federal appellate court.

"Reasonable accommodation" may include adjustments to work schedule, even beyond an agreed-upon flex-time schedule.

Maria Danaher — Mon, 04 Mar 2013 12:54:53 -0500

Employers are aware of the fact that the Americans with Disabilities Act (ADA) requires them to engage in an interactive process in order to determine whether a disabled individual can be accommodated to assist him or her in performing the essential functions of a job. In determining the essential functions of a position, most employers assume that physical presence and arrival at work at a consistent time are essential functions of most jobs. However, the 2d U.S. Circuit Court of Appeal recently reversed summary judgment in favor of an employer, and returned the case to the lower court for additional factual analysis of whether an individual whose medication kept him from coming to work on time could be disciplined for attendance violations based upon that lateness. McMillan v. City of New York, 2d Cir., No. 11-3932, March 4, 2013.

Rodney McMillan has schizophrenia and, with calibrated medication, has been employed by the City of New York, first for ten years as a case manager with the City’s Human Resources Administration (HRA) and then, since 1997, as a case manager for the HRA Community Alternative Systems Agency (the Agency). In that job, McMillan conducts home visits, processes social assessments, and meets with clients on a daily basis in the Agency’s office.

The Agency has a flex-time policy which allows employees to arrive at work between 9:00 and 10:00 a.m. (although, because of elevator wait-time, an employee is not considered late until 10:15), and leave between 5:00 and 6:00 p.m., so long as they work 35 hours each week, excluding a one-hour break for lunch. Tardiness can be “approved” or “disapproved” by a supervisor. When tardiness is approved, an employee may use sick leave or other “banked” time - additional hours worked - to cover the time missed in order to be paid for a full week of work. However, an employee who has no time banked, or does not wish to use banked time, simply is not paid for the missed time. Tardiness that is disapproved can lead to disciplinary action.

McMillan’s medication makes him drowsy and sluggish in the morning, which often makes him late for work, meaning he comes in after 10:15 in the morning. There is no dispute that McMillan’s inability to get to work on time is a function of the treatment for his condition.
For a period of at least 10 years prior to 2008, McMillan’s tardiness was either explicitly or tacitly approved. However, in 2008, his supervisor (Thornton), at the direction of her supervisor (Belthrop) refused to approve any more of McMillan’s late arrivals. McMillan then made a request for a later start time to avoid discipline for tardiness, but was told that a later start time was not possible because McMillan would then have to work after 6:00 p.m., after which no supervisors were present. McMillan also stated that he would be willing to work through his lunch hour and “bank” that time in order to make up for his late start. That suggestion also was rejected.

In May of 2009, McMillan was fined eight days’ pay for late arrivals. In December 2009, Belthrop recommended additional discipline based on McMillan’s “long history of tardiness,” and the City subsequently recommended that McMillan’s employment be terminated. Ultimately, the City reduced the recommended sanction from termination to a 30-day suspension without pay.

McMillan sued the City, alleging violation of the ADA. In support of his claim, McMillan argued that his requested accommodations were reasonable, as he often worked past 7:00 p.m. (the office actually is open until 10:00 p.m.), so he could arrive late and still work the required 35 hours a week.

The district court granted summary judgment for the City, and dismissed all of McMillan’s claims, holding that the court was “required to give considerable deference to the employer’s judgment” as to whether timely arrival at work was an essential function of a particular job. On appeal, however, the Second Circuit reversed, finding that while a “timely arrival is normally an essential function,” the lower court did not conduct a fact-specific inquiry into McMillan’s situation. Instead, the lower court “appears to have simply assumed that McMillan’s job required at least seven hours of work each day and that the work could not be successfully performed by banking time on some days to cover tardiness on others.”

However, the Second Circuit pointed out a number of circumstances that called that conclusion into question, including the facts that McMillan’s lateness had been allowed for years without discipline, and that the City allows flex time hours and regularly permits employees to “bank” time to cover certain late arrivals, all of which undermine the City’s assertion that it would have been an undue hardship to grant McMillan’s request for modified work hours.

The take-away for employers in this case is that the Second Circuit’s reversal of the favorable decision for the employer was based on the fact that the lower court simply accepted the City’s assertion that McMillan’s requested accommodation of further variation to his work hours would have been an undue hardship for the City. An employer who is analyzing a disabled employee’s request for accommodation must be able to compile and present factual, statistical, or narrative evidence of the manner in which a proposed accommodation would create an undue hardship, in order to both effectively accommodate the employee in a fair and reasonable manner, and to defeat any potential failure-to-accommodate claim under the ADA.

Employer has no obligation to provide "light duty" assignment under FMLA or ADA.

Maria Danaher — Mon, 25 Feb 2013 17:47:10 -0500

The use of light duty assignments to employees who are returning to work after recuperation from an illness or injury is an often used mechanism. The 7th U.S. Circuit Court of Appeals has held that neither the Family and Medical Leave Act (FMLA) nor the Americans with Disabilities Act (ADA) creates an obligation for an employer to provide light duty work to an individual who is unable – with or without accommodation – to return to the essential functions of his job. James v. Hyatt Regency Chicago, 7th Cir., No. 1:09-cv-07873, February 13, 2013.

Carris James began his employment with the Hyatt Regency Chicago in 1985 as a banquet steward, responsible for maintaining the cleanliness of banquet and food service areas, which included lifting pots and pans, and transporting trash containers around those areas. At that time, James informed Hyatt of his vision problem, which was correctable with eyeglasses and magnifying glasses. Hyatt accommodated James by increasing the print size of his work assignments and schedule.

In March 2007, James was punched in the eye during a non-work-related incident, and developed aretinal detachment for which he underwent surgery in the following month. When Hyatt’s human resources department learned that James’ absence was related to a medical issue, it provided information to James regardingFMLA leave. On April 24, 2007, James’ physician, Dr. Scott, stated that James could return to “light duty” on May 10, but did not say for how long James would require that light duty assignment. On April 25, James requested FMLA leave, which was applied retroactively to include James’ prior absences.

On May 9, 2007, James provided to Hyatt additional paperwork that indicated that James was “unable to work in any capacity.” James subsequently received disability benefits based upon that information. In addition, on May 11, James submitted a medical certification to Hyatt stating that his condition could possibly lead to permanent incapacity.

James’ 12 weeks of FMLA ended on July 13, 2007, but the collective bargaining agreement between the union and Hyatt provided job-protected leave for up to one year from his original absence. In August, James submitted various paperwork to Hyatt, including one release that stated that he could return to work although “visually impaired,” and others in which Dr. Scott continued to represent that James was incapable of working in any capacity.

On September 25, James faxed a note to Hyatt from yet another doctor who stated that James could return to work with lifting and bending restrictions, which would have precluded James from returning to the steward position. Following that, Hyatt attempted to contact James seeking additional information, but no clarification was provided until January 2008, when Hyatt’s Workers Compensation and Safety Manager sent a letter directly to Dr. Scott, enclosing a return to work certification form, as well as a job analysis for the banquet steward position. Dr. Scott responded, stating that James could return to work, but could not complete any task that required better than 20/200 vision. Hyatt then met with James and scheduled a return to work in the same position, shift, and seniority level as before James’ medical leave.

In 2009, James filed a lawsuit, claiming that Hyatt had interfered with his FMLA leave and had discriminated against him under the ADA by failing to allow him to return to work on light duty in May 2007. The lower court’s decision to grant summary judgment in favor of Hyatt on both claims was upheld by the Seventh Circuit on appeal.

First, the Court quoted the language of the FMLA and stated that “if an employee cannot perform an essential function of [his] original position because of a physical or mental condition, the employee has no right to restoration to a different position under the FMLA.” While the FMLA requires an employer to restore an employee to the position held at the time the FMLA leave began, or to an “equivalent” position, that law does not require an employer to restore an employee to a light duty (which clearly is not an equivalent) position simply to allow him or her to return prior to the expiration of the leave time allowed.

Next, the Court addressed James’ ADA claim that Hyatt had failed to accommodate him by pointing out that Hyatt had accommodated James’ visual impairment throughout James’ employment, beginning in 1985. It also pointed out that the “conditional” and, at times, contradictory releases being provided by James, along with the application for disability benefits which stated that James was unable to work in any capacity, did not provide information to Hyatt sufficient for the company to understand the true nature of James’ condition, or to formulate or implement a reasonable accommodation.

This case provides a road map to employers faced with the increasingly frequent situation in which there are both FMLA and ADA issues. First, once the company learned that James’ absence was medically related, it provided FMLA paperwork. During James’ leave, Hyatt requested medical updates in an attempt to understand if and when James could return to work, and to determine the extent of his medical impairment. When those updates were not forthcoming, and rather than make assumptions based on contradictory reports, Hyatt requested - directly from the medical provider - clarification of James’ medical condition, and included return-to-work certification forms as well as a detailed job description to allow the doctor to determine whether James could return to his position with or without accommodation under the ADA. It was the company’s action that ultimately led to James’ return to his position, and the company’s considered and persistent attention to the issues that led to a successful result in this case.

D.C. Circuit holds recess appointments to NLRB invalid.

Maria Danaher — Sun, 27 Jan 2013 19:36:26 -0500

On January 25, 2013, a three-member panel of the D.C. Circuit Court of Appeals issued a decision in finding that the recess appointments to the National Labor Relations Board (NLRB or Board) by President Obama on January 4, 2012 were unconstitutional. Noel Canning v. NLRB, No. 12-1115, D.C. Circuit Court of Appeals (January 25, 2013). In an opinion on a case before it on appeal, the court held that the NLRB lacked a quorum of three members when it issued the decision on appeal, because the appointments did not occur during a "recess" of the Senate, as required by the U.S. Constitution. This ruling stands to have broad ramifications as it calls into question the validity of all of the decisions made by the Board dating back to January 4, 2012.

The case on appeal before the D.C. Circuit arose from an unfair labor practice charge brought against Noel Canning, a bottler and distributor in the state of Washington. An administrative law judge (ALJ) ruled that the company violated the National Labor Relations Act by refusing to reduce to writing and execute upon a collective bargaining agreement reached with the union. The ALJ then ordered Noel Canning to sign the agreement. The company appealed this decision to the NLRB. The Board affirmed the ALJ’s decision, and the company ultimately appealed the matter to the D.C. Circuit Court of Appeals.

On appeal, Noel Canning made certain substantive arguments related to the final agreement between the parties, but also challenged the authority of the Board to issue an order on two constitutional grounds. First, it claimed that the NLRB lacked a quorum under the applicable statute, because three members of the five-member Board were appointed when the Senate was not in recess. Second, it argued that the vacancies filled by these three members did not "happen during the Recess of the Senate" as required by the U.S. Constitution.

After finding that the Board’s decision was valid on statutory grounds, the D.C. Circuit turned to the constitutional arguments. Under Article II, Section 2, Clause 3 of the U.S. Constitution (also referred to as the Recess Appointments Clause), "[t]he President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." Pursuant to this provision, President Obama on January 4, 2012 appointed three members to the NLRB. At the time of those appointments, the Senate was, in fact, conducting pro forma sessions every three days, by agreement, over a two week period.

Noel Canning contended that the President's appointments were invalid because they were not appointed during an actual "recess" of the Senate. Specifically, the company argued that the term “recess” refers to the intersession recess of the Senate (the period between sessions) when the Senate is not available to act upon nominations from the President. After carefully considering the plain text, history, and structure of the U.S. Constitution, the D.C. Circuit agreed with the company, stating that "To adopt the Board's proffered intrasession interpretation of 'the Recess,'" the court held, "would wholly defeat the purpose of the [f]ramers in the careful separation of powers structure reflected in the Appointments Clause [of the U.S. Constitution]." Thus, because the Board lacked a quorum of three members when it issued the ruling in the Noel Canning matter, the appellate court vacated the Board’s decision.

According to Harold P. Coxson, a principal with Ogletree Governmental Affairs, Inc. and shareholder in the firm’s Washington, DC office: "This is a seminal decision which is a 'game changer' for the NLRB and the parties subject to its jurisdiction. Under controlling U.S. Supreme Court precedent, this decision could mean that Board decisions issued since the invalid recess appointments were made - January 4, 2012 - lacked a quorum and will have to be recalled and re-decided by the Board. Coxson also adds that: "Although we can expect the Board to seek en banc review of the panel's decision by the full D.C. Circuit, and then perhaps by the U.S. Supreme Court, it is unclear what the Board and the Obama Administration will do in the interim. It may not affect the actions of the Board’s ‘Acting' General Counsel Lafe Solomon, himself appointed under the federal Vacancies Act, which has also been challenged – except, perhaps, where he seeks Board enforcement."

Additional Information

This important ruling and other issues relevant to the labor and employment law agenda will be addressed in detail during Ogletree Deakins' 2013 Legislative and Regulatory Program on February 21 and 22 at the Renaissance Washington, DC Downtown Hotel. To view the full seminar agenda, click here. To register for the program, contact Kim Beam at (800) 277-1410 or e-mail her at kim.beam@ogletreedeakins.com.

Employer not obligated to make an otherwise temporary "light-duty" position permanent to accommodate disabled employee under the ADA.

Maria Danaher — Mon, 21 Jan 2013 17:35:25 -0500

In an unpublished opinion, the 6th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who refused to convert a light-duty position into a permanent job for a disabled employee. Wardia v. Campbell County Regional Justice Dept. of Corrections, 6th Cir., No. 12-5337, January 3, 2013. In that case, a juvenile detention center employee who was unable to engage in the physical actions related to restraining juveniles in the facility was discharged, in spite of the fact that he asserted his ability to continue to work indefinitely in a light-duty position into which he had been placed on a temporary basis.

John Wardia became employed as a Youth Worker at the Campbell County, Kentucky, Juvenile Detention Center in 2003. In that position, Wardia supervised and monitored the activities of juveniles committed to the facility, assisted with their “interpersonal skill development,” and engaged in various administrative tasks. Youth workers are required to undergo a three-month long “safe-physical-management-skills” training upon hire, and participate in additional training on a monthly basis. While physical restraint actions are not frequent, the written job description of the Youth Worker position lists the ability to perform physical restraints on juveniles as an essential function of the position.

In or around 2008, Wardia underwent surgery for a non-work-related neck injury. Because his condition prevented him from performing physical restraint actions on the juveniles, Wardia requested, and was granted, the temporary accommodation of working in the detention center’s control room upon his return to work after surgery. Subsequently, Wardia’s physician provided information that Wardia’s condition would be permanent, and Wardia was placed on leave without pay on October 18, 2009, to be considered as having resigned if he could not return to work within a one-year period.

Two weeks prior to the expiration of that one-year period, Wardia requested permanent assignment to the control room position to which he previously had been assigned as light-duty, asking for that assignment as a reasonable accommodation for his disability. After a pre-termination hearing, the County’s Department of Juvenile Justice decided against making the assignment on a permanent basis, and issued a final notice of termination to Wardia. Wardia filed a lawsuit alleging disability discrimination, and arguing that the restraint of juveniles was not, in fact, an essential function of the Youth Worker position, since it was rarely necessary for employees to restrain the juveniles. Further, Wardia argued that even if that function was determined to be essential, the permanent assignment to the control room was reasonable.

The lower court disagreed with Wardia’s assertions, and granted the County’s motion for summary judgment. That decision was upheld by the Sixth Circuit, who made two notable holdings: (1) in assessing the “essential function” designation of an activity that is rarely performed, a court will look to the seriousness of the consequences of non-performance; and (2) temporary light-duty positions established for recuperating employees need not be converted into permanent positions.

In Wardia’s circumstance, the court determined that the ability to perform physical restraints on the juveniles was, in fact, essential. The potential for physical confrontation exists on a daily basis at the facility, and a staff member who is unable to restrain a juvenile may subject him-or herself and the facility to liability from injured employees or juveniles. Wardia’s assertion that certain workers needed assistance with the restraint function was unconvincing to the Court, which stated that “Simply because some employees more often and more capably perform a certain function does not make it any less essential for everyone else.” Because Wardia was unable to disprove the “essential” nature of the physical retraint function, the Court proceeded to address the question of whether Wardia’s request for accommodation was reasonable.

Reasonable accommodation analysis under the ADA requires that a plaintiff propose an accommodation that is objectively reasonable, thereby shifting the burden to his or her employer to prove that the request is unreasonable under the specific facts. Wardia made two requests: to work all functions other than the physical restraint function, which would have to be handled by co-workers; and permanent assignment to the light-duty control room position. The Sixth Circuit held that neither was reasonable. First, it determined that the need for assistance with the essential physical restraint function is not reasonable because the ADA does not require employers to accommodate individuals by shifting an essential job function to others. Any other approach would render the “essential function” step of the analysis as meaningless. Second, the Court held that permanent assignment to a light-duty or rotating position is not reasonable, as it would shift Wardia’s essential job functions to others, leaving his co-workers with the physical restraint functions, as well as his direct juvenile contact functions. The Court, citing a prior Sixth Circuit decision, found that temporary light-duty positions for recuperating employees need not be converted into permanent positions. To hold otherwise would frustrate the purpose of the ADA.

While this case arguably assists employers in an often difficult situation of whether to return an employee to work after a lengthy medical-related absence, the fact that the employer in this case was a juvenile detention facility and that the safety of residents and employees was one of the factors in the essential nature of the function at issue may have had a role in the ultimate decision. Employers should react carefully when faced with similar circumstances, and should thoroughly and objectively evaluate whether a function is actually essential. However the Court’s decision regarding the necessity for making a temporary light-duty position into a permanent role is more universally applicable, and can be considered - again, with objective rationale and documented reasoning - in most circumstances.

Employer's reliance on third party assessment to determine reasonable accommodation may lead to ADA liability.

Maria Danaher — Mon, 14 Jan 2013 22:42:18 -0500

The 6th U.S. Circuit Court of Appeals recently addressed an issue of first impression, finding that the ability to hear is not necessarily an “essential function” of the job of lifeguard. Keith v. County of Oakland, 6th Cir., No. 11-2276, January 10, 2013. In addition, however, the Court made a number of other, more generally applicable observations. The most noteworthy is a statement that seems to create an obligation on the part of an employer to fully understand the background and experience of any expert who is relied upon to assist in determining whether a disabled individual can be accommodated in a particular position.

Nicholas Keith has been deaf since his birth in 1980. He communicates primarily by using American Sign Language (ASL), but can detect noises – including alarms, whistles, and loud voices – through a cochlear implant. In 2006, Keith enrolled in and successfully completed a junior lifeguard training course conducted by Oakland County, Michigan, using an ASL interpreter to relay verbal instructions to him. In 2007, Keith successfully completed the County’s lifeguard training course, again with the assistance of an interpreter, although Keith executed all lifesaving tasks and training techniques himself.

Upon successful completion of the trainings, Keith applied for a part-time lifeguard position at the County’s wave pool, asking only that an ASL interpreter be present at staff meetings and further classroom instruction. Katherine Stavale, the County’s recreation specialist, offered the position to Keith, contingent upon a pre-employment physical. At the physical examination, the County’s doctor, Paul Work, reviewed Keith’s medical history and stated to Keith’s mother, “He’s deaf; he can’t be a lifeguard,” adding that he (the doctor) would be sued if “something happens.”

Based on Work’s opinion, Stavale placed the offer on hold and contacted Ellis & Associates, a group of aquatic safety/risk management consultants used by the County regarding its water parks and lifeguard training program. Stavale discussed Keith’s situation with a client manager and a vice president from Ellis in an attempt to determine whether and how to accommodate Keith. Neither of those individuals had any education, training, or experience regarding the ability of deaf people to work as lifeguards, and did not research the issue. In spite of a 6-page outline prepared by Stavale setting forth accommodations that she believed could successfully integrate Keith, the consultants remained concerned about Keith’s ability to function effectively as a lifeguard. The client manager specifically stated that “without 100 percent certainty that [the proposed accommodations] would always be effective, I don’t think you could safely have [Keith] on the stand by himself.” Based on the input from Ellis, the employment offer to Keith was withdrawn.

Keith filed a lawsuit, claiming disability discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The district court granted summary judgment in favor of the County, finding that although Dr. Work’s cursory medical examination and conclusory decision about Keith’s ability to be a lifeguard did not constitute the “individualized inquiry” required under the ADA, the County’s own inquiries and discussions with Keith did so. The court also concluded that Keith failed to show that he could perform the “essential communication functions” of a lifeguard and that, therefore, there had been no violation of the statutes.

On appeal, the Sixth Circuit reversed that decision, stating that whether a job function is essential typically is a factual question for the jury, and not a legal question for a court on summary judgment. Further, it pointed out that unlike the consultants from Ellis & Associates, one expert who provided input on behalf of Keith worked extensively with hearing impaired individuals and was a certified training instructor who has worked with deaf individuals in the field of lifeguarding and aquatics, certifying over 1000 deaf lifeguards through American Red Cross training programs. Keith also provided testimony from a physician specializing in neurodevelopmental disabilities who had worked with hearing impaired individuals for over 30 years, and who stated an opinion that in a noisy swimming area, recognizing a potential problem is almost completely visually based. It was this doctor’s opinion that Keith’s deafness should neither disqualify him as a lifeguard nor require constant accommodation.

The Sixth Circuit found that the County initially had participated in an “interactive process” with Keith, compiling a list of ways in which he could be successfully accommodated in the lifeguard position. However, the County ultimately withdrew the employment offer after it consulted with Ellis & Associates, who based its advice on non-specific assumptions and generalizations regarding hearing-impaired individuals. The Court found that fact-based questions existed that were sufficient to reverse the lower court’s dismissal of the case, and to send it back to that court for a trial by jury.

In assessing the sufficiency of the County’s participation in the required interactive process, the Court made a statement that should get the attention of any employer who is involved in determining the reasonableness of an employee or applicant’s requested accommodation: “Because it strikes us as incongruent with the underlying objective of the ADA for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not, we direct the district court to consider [the question of why the County rejected Keith’s requested accommodation] on remand.” In other words, the County’s deference to its consultant’s opinion on the issue of how to accommodate Keith may vitiate the County’s compliance with the ADA’s requirement regarding the interactive process. Based on that statement, any employer relying on input from a third party to assess the reasonableness of accommodations requested by an employee or applicant should determine whether the input was obtained from an individualized assessment, or was simply based upon assumptions and non-specific information. Without an individualized review by the consultant, the employer could lose the benefit of its own initial participation in the required interactive process.

One district court finds that "sincerely held belief" of vegan employee may support a religious discrimination claim.

Maria Danaher — Mon, 07 Jan 2013 17:40:33 -0500

A federal district court in Ohio has refused to dismiss a complaint for religious discrimination made by a hospital employee after the employee was fired for refusing to be vaccinated for the flu. The basis of the refusal to be vaccinated was the employee’s veganism. The Court denied the employer’s motion to dismiss, holding that the plaintiff’s beliefs were sincerely held and, therefore, merited protection under the law. Chenzira v. Cincinnati Children’s Medical Center, S.D. Ohio, No. 1:11-cv-00917 (12/27/12).

Sakile Chenzira, a confirmed vegan, was employed by Cincinnati Children’s Medical Center (“CCMC”) as a Customer Service Representative for over 10 years. A vegan does not ingest any animal or animal by-products. Until 2010, Chenzira was allowed to forego a flu vaccine, which included animal by-products, without disciplinary action being taken against her. In 2010, when Chenzira refused the mandatory vaccine, she was fired. In response, she filed a charge of religious discrimination with the EEOC, and ultimately filed a lawsuit in federal court alleging religious discrimination, along with a related state claim for violation of public policy. CCMC filed a motion to dismiss the complaint, arguing that veganism is not a religion. That motion was denied (although the hospital’s motion to dismiss the state law public policy claim was granted).

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) requires a court to determine whether a “cognizable claim” has been pled in a complaint. A plaintiff’s complaint survives such a motion if it contains sufficient factual matter that, if accepted as true, states a plausible claim to relief. In response to CCMC’s argument that Chenzira’s veganism was simply a “social philosophy or dietary preference,” the Court pointed out that Chenzira’s claim was supported by the EEOC’s regulations, which state that “religious practices” include moral or ethical beliefs as to what is right and wrong which are “sincerely held with the strength of religious views.” Further, Chenzira provided to the Court an essay entitled “The Biblical Basis of Veganism,” and cited Biblical passages in support of her claims.

The Court found that in the context of a motion to dismiss, Chinzera set forth a “plausible” claim that she ascribes to veganism with a sincerity equating that of traditional religious views. (In a largely unsuccessful attempt to clarify that characterization, the court pointed out that “plausibility” falls “somewhere between probability and possibility.”) In addition, the fact that Chinzira previously had been exempted from the vaccine, along with the EEOC regulations which make it clear that “it is not necessary that a religious group espouse a belief before it can qualify as religious,” helped to support the Court’s decision that it was inappropriate to dismiss Chinzera’s claims for religious discrimination under Federal Rule 12(b)6).

This case was decided on specific facts, and does not create a new category of “religious beliefs,” nor does it mean that veganism must be accommodated in every circumstance. Importantly, the Court added a comment in its opinion that may be critical to the ultimate outcome of the case: “The Court’s ruling in no way addresses what it anticipates as [CCMC’s] justification for its termination of [Chinzera], the safety of patients at Children’s Hospital. At this juncture, there is simply no evidence before the Court regarding what, if any, contact [Chinzera] might have with patients, and/or what sort of risk her refusal to receive the vaccination could pose in the context of her employment.” Here, the Court simply ruled on the sufficiency of the religious discrimination claim filed by Chinzera, finding that she alleged beliefs that may deserve legal protection. The decision is not a determination on the merits of the claims or the defenses.

Assignment to a lesser position upon return from leave may support FMLA interference claim.

Maria Danaher — Mon, 17 Dec 2012 14:40:29 -0500

The 11^th U.S. Circuit Court of Appeals reversed summary judgment in favor of an employer, holding that a plaintiff’s testimony and evidence related to her transfer to a position of less responsibility upon return from Family and Medical Leave Act (FMLA) leave created an issue of material fact that required a jury to determine whether the employer had interfered with the employee’s FMLA leave. Rodriguez v. University of Miami Hospital, 11^th Cir., No. 11-15206, December 3, 2012.

Iliana Rodriguez requested and was granted FMLA leave from her administrative position at the University of Miami Hospital. Upon her return from leave, Rodriguez met with a number of individuals, including her supervisor, Francetta Allen, and the Hospital’s Executive Director of Human Resources, Errol Douglas. At that meeting, it was determined that Rodriguez would be transferred to a temporary position, based on her admitted inability to get along with Allen. While the temporary position was at the same level of pay and benefits, the new position had significantly less responsibility and, in fact, consisted largely of copying documents. Six weeks after being transferred to that position, Rodriguez was fired. She then filed a lawsuit, alleging that the Hospital interfered with her right to reinstatement under the FMLA by failing to return her to her original position, and then fired her in retaliation for taking such leave. The district court granted summary judgment in favor of the Hospital on both claims.

In an unpublished opinion, the Eleventh Circuit upheld the summary judgment on Rodriguez’s retaliation claim, holding that there no evidence that the Hospital’s reasons for the termination – that Rodriguez could not get along with her supervisor, and was unable to find another acceptable job within the Hospital – were false. Rodriguez therefore could not show a causal nexus between her FMLA leave and her firing, and her retaliation claim was dismissed.

However, an FMLA interference claim is analyzed differently than a retaliation claim. According to the Eleventh Circuit, if an employee is not reinstated to the same or an equivalent position, the employer bears the ultimate burden of proving that its action was taken for independent reasons that were unrelated to the employee’s leave. Therefore, in this case, the Court had to determine whether there was any genuine issue of material fact regarding the Hospital’s defense that it had transferred Rodriguez to the temporary, lesser position for reasons unrelated to Rodriguez’s FMLA leave.

An employer is not liable for failing to reinstate an employee to her former position if the employer can show that the employee cannot perform the essential functions of her original position. Further, in that instance, an employer is not obligated or required to restore the employee to any other position. In this case, the Hospital argued that it transferred Rodriguez upon her return from leave because she was unable to perform the essential functions of her original position, which included being able to get along with her supervisor, Francetta Allen. Had the record unquestionably established that Rodriguez and Allen could not work together, the Hospital would have met its burden that the transfer was “wholly unrelated” to Rodriguez’s FMLA leave, and the interference claim could have been dismissed.

However, based on deposition testimony and a lack of documentary evidence that Rodriguez and Allen had been unable to get along prior to the FMLA leave, the Court was able to find disputed issues of material fact that precluded summary judgment in favor of the Hospital. Contrary to the Hospital’s assertion that Rodriguez was unable and unwilling to work with Allen, Rodriguez testified that she had asked for the meeting with Allen and Douglas upon her return from leave in order to “address whatever issue was there” and to move on, as she did not want to lose her job.

In addition, in spite of the Hospital’s statement that Rodriguez’s issues with Allen pre-dated her return from FMLA leave, there was no documentary evidence of any performance deficiencies or difficulties between Rodriguez and Allen until the meeting held at the time of Rodriguez’s return. Indeed, Allen first documented her issues with Rodriguez in an e-mail sent to Douglas one hour before that meeting. Because there are disputed issues of material fact underlying the Hospital’s defenses against Rodriguez’s interference claim, the Court determined that it is for a jury to decide whether those defenses constitute an honest explanation of the reason that Rodriguez was not returned to her position upon returning from FMLA leave. The Court remanded the case to the district court for further action on that issue.

This case is another in a series of recent federal court cases in which a court points out an important difference between the analysis of an FMLA retaliation claim and an FMLA interference claim for purposes of summary judgment. In a retaliation claim, the ultimate burden of proof is on the employee – under the oft-cited McDonnell-Douglas 3-step shifting burden analysis - to show that an employer’s reason for its action is simply a pretext for retaliation. However, in an interference claim, the ultimate burden is on the employer to prove its defense that its action was based on independent reasons that were unrelated to the employee’s FMLA leave, and to prove it without any question of material fact. In this case, the Hospital was unable to carry that burden, and the matter will be returned to the lower court in order to allow a jury to decide the issue.

Layoff upon return from military leave may qualify as a "reemployment position" under the USERRA.

Maria Danaher — Mon, 10 Dec 2012 16:01:51 -0500

According to the 8th U.S. Circuit Court of Appeals, the Uniformed Services Employment and Reemployment Rights Act (USERRA) requirement that a returning service member be reemployed in the position that he or she would have occupied had that employment not been interrupted by a military commitment does not preclude layoff or termination of a returning service member. Milhauser v. Minco Products, Inc., 8th Cir., No. 12-1756, December 5, 2012.

The clause that guarantees reemployment to returning service members often is referred to as the “escalator” principle, as it imagines the employee on the step of an escalator that continues to move up or down during the period of military leave. A returning service member does not return to the same position upon reemployment, but rather is placed into the position into which his or her “escalator step” has moved during the period of leave, and no better or no worse.

Douglas Milhauser worked as a maintenance technician at Minco Products beginning in 2006. During his employment, Milhauser’s performance was considered to be poor. His work was inconsistent, other employees complained about his attitude, and he received at least one written reprimand from his supervisors.

In 2008, customer orders began to decline, and Minco posted its first ever annual loss. When orders continued to decline in 2009, Minco began to take cost-cutting actions, including reducing overtime, pay cuts and, ultimately, reductions in its workforce. In March of 2009, Minco eliminated 18 jobs, with plans to cut 32 more in June.

Between 2007 and 2009, Milhauser was called to military duty three times. During his last deployment, Milhauser suffered a severe reaction to a vaccine, which ended his military service in May 2009. Milhauser reported back to Minco on June 3, 2009. During that same time period, Milhauser’s supervisor was asked to name four employees of the 13 who he supervised, to be considered for termination. The termination criteria was based on job duties, technical expertise, and certain subjective factors including attitude and work ethic. The supervisor included Milhauser in the recommended list for termination, partly on the basis that Milhauser’s areas of specialization duplicated those of other employees, and could be readily absorbed by the remaining technicians. Milhausen was dismissed in the second round of cuts, and was informed of that fact when he reported back to work on June 3.

Milhauser’s ensuing lawsuit against Minco went to trial, during which Minco presented evidence of Milhauser’s poor performance and the difficult economic conditions upon which the reductions in force were based. At trial, the jury found in favor of Minco. Milhauser appealed his claim that Minco had failed to provide reemployment as required by the USERRA. In the appeal, Milhauser argued that under the USERRA, termination was not a possible reemployment position.

The Eighth Circuit disagreed and upheld the jury’s verdict, finding that the jury’s decision - that Milhauser’s “position of employment” would have been terminated, even had he not left for military service - is entirely consistent with the USERRA. The escalator principle requires that an employee’s career trajectory be viewed as if uninterrupted by military duty. The regulations that implement the USERRA specifically state that “the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated.”

Employers should not generalize this holding to mean that any returning serviceperson can be laid off or fired without cause. To the contrary, Milco’s success in this case was based at least in part on the fact that the business difficulties being faced by that company during the relevant period, and its responses to those difficulties in the form of spending cuts and layoffs, were fully documented. That documentation allowed the jury to come to the conclusion that Milhauser’s position would have been eliminated whether or not he had been away from work on a period of military leave. Once the jury reached that conclusion, it simply viewed the situation in the light of the escalator principle, and determined the company’s action to be consistent with the USERRA.

Temporal proximity between FMLA leave and firing does not always lead to successful legal claim.

Maria Danaher — Mon, 03 Dec 2012 13:04:18 -0500

The Family and Medical Leave Act (FMLA) continues to create administrative challenges for employers. One particular issue of concern is the discipline and or termination of an employee who has requested or is on FMLA leave. The 10th U.S. Circuit Court of Appeals recently upheld the dismissal of an individual’s interference and retaliation claims in an unpublished opinion that serves as an outline for analyzing FMLA claims under such circumstances. Brown v. ScriptPro, LLC, 10th Cir, No. 11-3293, November 27, 2012.

Frank Brown worked as a Customer Service Operations analyst for ScriptPro, a company which develops, manufactures, markets, and sells automated prescription drug dispensing systems and related software. Brown began that employment in March 2007. In mid-2008, Brown’s immediate supervisor prepared a written performance review which included both positive and negative comments. Among the negative feedback were observations related to Brown’s interaction with co-workers and customers, including his tendency to be “argumentative and abrasive,” and his lack of respect for “personal boundaries.” Although these issues were discussed with Brown, no specific goals or corrective plans were put in place. Following that performance review, several other issues developed, including complaints by Brown’s co-workers about his “belligerence” toward customers and his failure to complete a work project.

At the end of October in 2008, Brown was out of the office, ostensibly on Paid Time Off (PTO) for two weeks. However, upon his return, he asserted that he had worked from home during the second week, and on November 19, requested to use some of that work time to leave early on the following day to take his wife to a medical appointment. When Brown’s supervisor informed him that his request was denied, Brown raised his voice and allegedly banged his first on the table. He later apologized for his conduct.

On November 21, 2008, ScriptPro terminated Brown’s employment for performance issues. Brown filed a lawsuit claiming, among other things, that ScriptPro interfered with the exercise of his rights under the FMLA, and terminated his employment in retaliation for his exercise of those rights. The district court dismissed Brown’s claims, granting summary judgment to ScriptPro. The Tenth Circuit upheld that decision.

In its analysis of Brown’s interference claim, the Tenth Circuit makes a number of noteworthy points. First, it sets forth the elements of a successful interference claim, in which an employee must show that he was entitled to FMLA leave, that an adverse action taken by the employer interfered with right to take FMLA leave, and that the adverse action was related to the attempted exercise of those rights. Second, the Tenth Circuit reminds employers that the deprivation of FMLA rights is a violation of that law, regardless of the employer’s intent and that, therefore, the oft-cited McDonnell Douglas burden-shifting analysis does not apply. Third, the Court points out that in spite of the near strict-liability approach, an employer can defend against such a claim by showing that the employee would have been terminated regardless of the request or need for FMLA leave.

In Brown’s case, the Court decided that while Brown had provided sufficient evidence by which a reasonable jury could find that he was entitled to FMLA leave and that ScriptPro interfered with that leave, the company was able to assert undisputed evidence that Brown would have been fired regardless of the request for time off for his wife’s medical appointment. That undisputed evidence included unfavorable feedback in his performance review, and uncontroverted evidence of continued problems, including documented complaints by his co-workers and his supervisor’s concern related to an incomplete project. The Court noted that its role was not to “judge the wisdom of management’s responses,” but simply to determine whether ScriptPro had come forward with evidence to support the assertion that it would have fired Brown regardless of any FMLA activities. The Tenth Circuit affirmed the dismissal of the case, holding that ScriptPro carried that burden.

The Court analyzed the retaliation claim similarly, but pointing out that such claims are subject to the burden-shifting analysis of McDonnell Douglas. First, the employee must set forth a prima facie case of retaliation, showing that he engaged in a protected activity, was subject to a materially adverse action, and there is a “causal connection” between the two. Once the prima facie case is established, the employer must come forward with a legitimate, non-discriminatory reason for its action. Finally, in order to avoid summary judgment, the employee must show that there is a disputed issue of material fact as to whether the employer’s reason for its action is pretextual.

In Brown’s case, the Tenth Circuit proceeded directly to the third step of the analysis, and found that although Brown argues that the temporal proximity between his November 19 request for leave and his November 21 firing showed that ScriptPro’s reasons for the termination were actually based on protected activity, he failed to proffer any additional circumstantial evidence of retaliatory motive. Without that, Brown failed to carry his burden of proving that the legitimate reason given for his firing was simply a pretext for retaliation.

While the analysis of the two claims differed slightly, the employer’s success in each rested on the objective documentation of the performance issues on which Brown’s termination was based. That documentary evidence was the key to the success of ScriptPro’s ability to show that it would have terminated Brown regardless of any FMLA request or rights (the interference claim), as well as to the company’s ability to overcome Brown’s allegation that the reasons proffered for his termination were pretextual (the retaliation claim). This case serves as a reminder to employers of the importance of objective documentation of the business reasons for employer’s decisions, especially when faced with a possible FMLA-related situation.

Termination for Facebook posting does not violate state invasion of privacy law.

Maria Danaher — Mon, 19 Nov 2012 12:27:17 -0500

Recent court decisions related to employees’ online postings have centered on whether disciplinary decisions regarding those postings may violate the National Labor Relations Act (NLRA). The NLRA protects certain employee “concerted activities” aimed at discussing or improving working conditions, and precludes interference with such communications, including online messages. However, individuals also have brought other legal causes of action against employers for so-called “Facebook firings.” Recently, a Texas appeals court was asked to determine whether the firing of an employee on the basis of her Facebook comment violated that employee’s state law privacy rights. The court held that it did not. Roberts v. CareFlite, Texas Court of Appeal 2d District, No. 02-12-00105-cv, Oct. 4, 2012.

Janis Roberts was a paramedic with CareFlite, a helicopter/ambulance service. Roberts posted on a fellow employee’s Facebook wall that she “wanted to slap” a patient who had needed restraints during a transport. When CareFlite compliance officer learned of the posting, she sent a message to Roberts – also through Facebook – reminding her that the public sees such postings, and asking her to “consider removing that post.” In response, Roberts curtly stated “Yeah, whatever,” and went on to state that sometimes “a patient needs an attitude adjustment.” Roberts ultimately removed the original posting, but before she did, the company’s CEO was made aware of it.

Roberts was terminated for her post, and for her “unprofessional and insubordinate” response to the compliance officer. She subsequently filed a lawsuit asserting that the company’s reaction use of and reaction to her personal and private Facebook message postings invaded her privacy under two state law claims: public disclosure of private facts, and intrusion upon seclusion.

After the lower court dismissed both of Roberts’ claims, she appealed the intrusion upon seclusion claim. However, in order to establish such a claim, Roberts would have to show an intentional intrusion on her privacy that was “highly offensive to a reasonable person.” Roberts argued that the rights of employees to privately discuss issues of patients who might affect employees’ safety outweighed issues of public concern (in this case, the public’s confidence in the ambulance company) and that, therefore, the employer’s intrusion into that discussion was a violation of privacy. In essence, Roberts attempted to assert the state-law equivalent of an NLRA Section 8 claim, which precludes companies from interfering in employees’ work-related safety discussions. However, because Roberts’ invasion of privacy claim was brought under state law tort theory, the court found that argument to be irrelevant, and dismissed the lawsuit for lack of legal support.

While this case was brought under Texas state law, the rationale is applicable to other circumstances, as well: courts will not read an “appropriate” cause of action into a lawsuit that fails to assert it. Whether or not Roberts’ allegations would have supported a cause of action for violation of the NLRA, her failure to specifically allege that claim, and her reliance on the state-law invasion of privacy claim, doomed her lawsuit. Obviously, employers should not become complaisant based upon this decision – employees’ rights to communicate about the terms and conditions of their employment remain protected under federal law.