Employment Law Matters

To support a claim under the USERRA, an employee must prove only that military status was one factor supporting an adverse employment action.

Maria Danaher — Mon, 08 Mar 2010 18:08:48 -0500

Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA) to encourage non-career service in the uniformed services, by minimizing the disadvantages to civilian employment which can result from such service. An employer violates the USERRA if an adverse action is taken against an employee, and the employee’s membership in the armed services is a “motivating factor” in that action – unless the employer can prove that it would have taken the same action in the absence of that membership. In an unpublished opinion, the 11th U.S. Circuit Court of Appeals held that an Alabama National Guard member who was fired from his job at an auto assembly plant was unable to establish that his Guard service motivated his firing. Dees v. Hyundai Motor Manufacturing Alabama, LLC, 11th Cir., No. 09-12107, February 26, 2010.

Jerry Leon Dees was a veteran and a member of the National Guard when he was terminated from his employment with Hyundai. He sued the company, claiming that he was discriminated against and harassed because of that status, and that he ultimately was fired because of his National Guard obligations. The district court granted summary judgment in favor of Dee’s claims, and the Eleventh Circuit affirmed that decision on appeal.

To establish a prima facie case under the USERRA, an individual must show that his protected military status was a motivating factor in the adverse action of which he complains. The status need not be the sole cause so long as it is one of the factors relied upon, taken into account, or considered by the employer. Courts may infer discriminatory motivation under the USERRA from a variety of factors, including proximity in time between the employee’s military activity and the adverse employment action suffered, inconsistencies between the proffered reason and the employer’s actions, expressions of hostility by decision makers toward protected military status, and disparate treatment of protected employees when compared to similarly situated non-protected employees. Unless the employee meets this burden, his case cannot go forward. Once that burden is met, the burden shifts to the employer to prove that legitimate business reasons for the action taken would have induced the employer to act, even in the absence of the individual’s military service.

In Dee’s case, the district court found that Dees failed to establish that the Company relied upon, took into account, or conditioned its decision to fire him on the basis of his military service. Dees testified that he had no direct evidence that his military status motivated his termination, and was not fully aware of who was involved in the decision to terminate him. In short, Dee’s allegations were based upon insufficient conclusory statements that were not actual “evidence” of discrimination. In response to Dee’s assertions that two supervisors “harassed” him about his military obligations, the Court specifically pointed out that Dee’s termination was implemented only after an independent investigation by the Company of his performance issues, and that no supervisor’s discriminatory recommendation was the direct cause of the firing.

This case provides to employers two different lessons for avoiding liability under the USERRA. First, employers must be fully aware of the Act, its obligations, and its broad scope. An employee alleging violation of the USERRA does not have to prove that his or her military service was the only reason for an adverse action – only that such service was one of the motivating factors. Therefore, in order to avoid liability under the USERRA, employers should be particularly careful to fully review employment decisions related to military service members to assure that the decisions are based upon business-related criteria, and that military service is not a motivating factor in any work-related decision. The second lesson is that in this case, the Company’s independent investigation of Dee’s work performance convinced the Court that prior remarks alleged to have been made by certain supervisors did not, therefore, form the basis of the termination decision. The lesson here is that a complete and independent investigation, fully documented and focused upon business-related criteria, can help an employer to support the affirmative defense necessary to defeat liability under the USERRA.

Section 1981 race discrimination claim cannot survive without a contractual interest as its basis.

Maria Danaher — Mon, 01 Mar 2010 18:20:17 -0500

Under certain circumstances, 42 U.S.C. §1981 (Section 1981) creates a federal cause of action for individuals claiming intentional racial discrimination. To support such a claim, a plaintiff must allege that he is a member of a racial minority, and that he was discriminated against within a particular group of activities set forth in the statute. Those activities include the right to “make and enforce contracts . . . as is enjoyed by white citizens.” The 11th U.S. Circuit Court of Appeal recently dismissed the claims of a physician who claimed that the suspension of his medical staff privileges violated rights protected by Section 1981, holding that such privileges did not constitute contractual rights as defined by the statute. Jimenez v. Wellstar Health System, 11th Cir., No. 09-10917, February 18, 2010.

Dr. Omar F. Jimenez, an African-American physician with a specialty in neurosurgery, held medical staff privileges at Wellstar Health System in the state of Georgia. In January 2006, Jimenez was asked to appear before Wellstar Surgery Department’s Medical Care Evaluation Committee to address a number of complaints received by the Committee regarding Jimenez’ medical performance. The complaints included allegations that Jimenez had failed to respond promptly to emergency room calls, had failed to make patient rounds in a timely manner, and had failed to manage certain surgeries appropriately. Based on those allegations, Wellstar suspended Jimenez’ medical staff privileges, which meant that Jimenez was precluded from treating patients at Wellstar’s hospitals. Although Jimenez initially requested a hearing on the suspension, a year went by within which no hearing was held, for reasons for reasons not explained in the Court’s opinion. At that point, Jimenez withdrew his request.

Jimenez ultimately filed a federal law suit, including a claim under Section 1981 alleging race discrimination based upon contractual rights. He claimed that Wellstar discriminated against him when it suspended his privileges and when it delayed a hearing on that suspension, and that those privileges established a contract between Jimenez and Wellstar. The district court dismissed the lawsuit for Jimenez’ “failure to state a claim,” and the case was appealed. The Eleventh Circuit upheld the dismissal, finding that the suspension of Jimenez’ medical staff privileges did not violate rights protected under Section 1981.

Wellstar’s policies include specific language that membership on the system’s medical staff “does not create a contractual relationship between Wellstar or any Medical Staff and the Medical Staff Member.” In addition, medical staff members at Wellstar must meet certain minimum objective criteria, and failure to do so can result in automatic termination of medical staff privileges, which runs counter to a typical contractual relationship. Importantly, under Georgia state law, medical staff bylaws do not create a per se contractual right to the continuation of medical staff privileges. According to the Court, interpreting the bylaws as a contract in Jimenez’ case would run counter to the state’s policy of allowing a hospital to suspend or withhold privileges from doctors that it believes are unqualified to serve on its medical staff. Therefore, Jimenez did not the possess the contractual relationship necessary to support his Section 1981 claim.

It is noteworthy that because Jimenez was not an employee of Wellstar, he was unable to base his claim for racial discrimination on Title VII of the Civil Rights Act, the federal “anti-discrimination” statute which prohibits race and national origin discrimination (as well as gender and religious discrimination) by employers against employees. Had Jimenez been a direct employee of the hospital system, the fact that his medical staff privileges did not constitute a contract would not have precluded a federal claim by Jimenez, because Title VII would have been available to him. Health care providers that are moving toward an employment model with physician staff members should take this issue into consideration and should assure that managers and supervisors are trained to recognize and resolve complaints of discrimination when they arise, in order to avoid legal liability under Title VII, regardless of whether Section 1981 applies.

Inconsistent performance appraisal scores may support FMLA interference claim.

Maria Danaher — Sun, 21 Feb 2010 18:10:09 -0500

In an unpublished opinion, the 6th U.S. Circuit Court of Appeals has held that an employee’s appraisal score, given during a Reduction in Force (RIF) review, that was significantly lower than an annual performance review score given only 20 days earlier might support a jury’s finding that the true reason for the employee’s layoff was her requested FMLA leave. Cutcher v. Kmart Corporation, 6th Circuit, No. 09-1145, February 1, 2010.

Susan Cutcher was initially hired by Kmart as a part-time employee in 1984, and eventually moved to a “full-time hourly associate” (FTHA) position. Kmart regular conducts performance appraisals of its employees on or around the anniversary date of their hiring. Between 2001 and 2003, Cutcher was rated as “exceptional” by her supervisor. In 2004, Cutcher’s rating dropped to “exceeds expectations” which was the second highest possible rating, with a total numerical score of 20 out of 22. On November 15, 2005, Cutcher again was rated as “exceeds expectation” with a rating of 18 out of 22.

In early November 2005, Cutcher submitted FMLA forms to her HR representative, informing the company that she would be off work for six weeks after undergoing surgery. At the same time, Cutcher completed forms for short-term disability leave, and commenced paid leave effective December 5, 2005.

On December 21, 2005, the company announced a nation-wide RIF, within which Cutcher’s location ultimately laid off six FTHAs. The RIF guidelines required each store to complete an Associate Performance Recap form for each FTHA. That form included the same categories as did the annual performance evaluation review, and considered the employee’s most recent appraisal rating in calculating the employee’s score for purposes of the RIF. The form’s instructions also required an explanation if there was a significant change in the RIF score as compared to the employee’s annual appraisal.

Although Cutcher’s pre-RIF annual evaluation was enough to avoid layoff, her performance was re-evaluated, and that score placed her close to the bottom of the rankings. On her RIF evaluation, in a “comment” section net to her name, Cutcher was noted as “Poor customer and associate relations. LOA.” The store’s manager indicated that “LOA” simply indicated that Cutcher was on a Leave of Absence at the time of the RIF evaluation, and that her layoff would be delayed until her return. Cutcher, in fact, was terminated upon her return from leave on January 23, 2006, and her position ws given to another FTHA who received a higher ranking.

Cutcher filed suit in federal court, claiming interference with, and termination in retaliation of, her FMLA leave. Although the district court granted Kmart’s motion for summary judgment, the Sixth Circuit reversed that decision, holding that the fact that there had been no prior complaints against Cutcher, and that an “LOA” note had been written next to her name created issues of material fact for the jury as to the reason for her RIF rating score.

The real issue in this case is the lack of documentation for the company’s reasons for the RIF ranking. While the company argued that Cutcher’s performance had been declining, there was no documentation evidencing a prior concern about that performance. While the individual who conducted Cutcher’s annual review in early November testified that she “often scored associates higher on annual appraisals than they deserved” because she “did not like confrontation,” she also admitted that she was not aware of any specific problems with Cutcher’s performance between the annual evaluation and the RIF ranking.

Employers must recognize that, when it comes to performance evaluation, honesty really is the best policy. Had the supervisor been more direct in her evaluation of Cutcher and documented a declining performance, such documentation would have eliminated the basis of Cutcher’s FMLA claim by supporting the company’s reason for the lower RIF ranking. Supervisors and managers should be trained to use performance evaluations as constructive feedback, and not as motivational tools or anticipatory rewards.

Sales rep falls within FLSA's "administrative" exemption because of independent strategic planning responsibilities.

Maria Danaher — Sun, 07 Feb 2010 20:17:02 -0500

Under the Fair Labor Standards Act (FLSA), employees who work more than 40 hours a week are entitled to overtime pay unless they fall under one of the Act’s enumerated exemptions. The 3d U.S. Circuit Court of Appeal found that a Johnson & Johnson sales representative fell within the “administrative” exemption, based upon that person’s high level of planning and foresight, along with her “exercise of discretion and independent judgment with respect to matters of significance” and, therefore, was not entitled to overtime pay. Smith v. Johnson & Johnson, 3d Cir., No. 09-1223, February 2, 2010.

An administrative employee, as defined under the FLSA, is someone who is compensated at a salary or on a fee basis at a rate of not less than $455 each week, and whose primary duty is the “performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers.” In addition, an administrative employee’s primary duty must include “the exercise of discretion and independent judgment with respect to matters of significance.”

Patty Lee Smith was employed by McNeill Pediatrics, a subsidiary of Johnson & Johnson (J&J), and held the position of Senior Professional Sales Representative from April 2006 until October 2006. Smith filed a legal action seeking overtime pay for that period, and attempted to certify her lawsuit as a class action. The district court granted J&J’s motion for summary judgment, finding that Smith fell within the “administrative” exemption of the FLSA, and Smith appealed.

On appeal, the Third Circuit analyzed Smith’s job responsibilities, which primarily involved visiting physicians in their offices or at hospitals and explaining and extolling the benefits of Concerta, a prescription drug used in the treatment of attention deficit disorders. Smith did not sell the drug, but visited about 10 physicians each day, attempting to maximize the number of prescriptions written for Concentra by doctors within her assigned territory. J&J allowed Smith to set her own itinerary and to schedule the visits as she saw fit. Smith was given a budget to cover her efforts, but was allowed to use her discretion on how it was spent. According to Smith’s job description, she was required to plan and prioritize her responsibilities in a manner that maximized business results. The documentation in the case indicated that Smith was to develop a strategic plan to achieve higher sales within her territory. Smith herself testified that her job was not “micromanaged.”

Smith’s “non-manual” work required her to formulate business strategy, which put her squarely within the FLSA’a requirement that an administrative employee conduct work that is “related to the management or general business operations of the employer.” Further, because Smith was allowed to and, in fact, encouraged to, run her territory as she saw fit, she was able to exercise “discretion and independent judgment” regarding her employer’s business – also a criterion of the administrative exemption under the FLSA. On those facts, the Third Circuit found Smith to be exempt from the overtime provisions of the FLSA. Further, in view of the Court’s decision on the FLSA exemption, Smith’s motion for class action certification became moot, and the Court upheld its dismissal.

This case was decided in accordance with the specific facts of Smith’s employment responsibilities. Here, the Third Circuit observed that the evidence portrayed Smith as the manager of her own business who could run her territory as she saw fit. Those facts supported Smith’s classification under the “administrative” exemption. However, the Court also pointed out that there presently are similar cases pending in various other Circuits and related to pharmaceutical sales persons, to which this decision may not apply. Employers must understand that such claims are decided on the specific facts involved, and must recognize that there is no blanket exemption for such sales personnel.

FMLA's administrative complexities create challenges for employers

Maria Danaher — Sun, 31 Jan 2010 11:51:26 -0500

The U.S. District Court for the Middle District of Pennsylvania recently re-visited a case on remand from the Third Circuit, and allowed an insurance company employee’s claims of FMLA interference and retaliation to go forward. Erdman v. Nationwide Insurance Co., M.D. Pa., No. 1:05-cv-0944, 1/15/10. The case is noteworthy on more than one point: first, the 3d Circuit remanded the case on a finding that the employee’s hours worked at home might be counted toward the 1250 minimum hours needed to be eligible for FMLA leave; second, that evidence of ongoing “antagonism” between the company and the employee might form the basis of FMLA retaliation; and finally, that a request for FMLA leave may be viewed as a “protected activity” under Pennsylvania’s Human Relations Act.

Nationwide Insurance Company hired Brenda Erdman in 1980. Erdman was a full-time employee until 1998, when she began to work part-time in order to care for her daughter, who was born with Downs Syndrome. In 2002, Erdman’s request for a 4-day workweek schedule was granted. However, Erdman regularly worked extra hours from home, for which her supervisor consistently authorized payment, allowing Erdman to exercise “comp” time based upon those hours. In 2002, Erdman began to report to a new supervisor, and asked that person whether continued comp time would be allowed. Although there was no specific response, the supervisor made no initial objection to Erdman’s continued use of comp time. However, in September 2002, that supervisor admonished Erdman on a number of performance issues, and then told her that she could no longer use extra hours as “comp” time.

In February 2003, Nationwide informed Erdman that her part-time position was being eliminated, and offered her a full-time job, which Erdman accepted. In April 2003, Erdman submitted paperwork asking for FMLA leave for the month of August, which she needed to prepare her daughter for school. Nationwide fired Erdman on May 9, 2003, stating that it was doing so for prior workplace behavioral issues. Erdman filed a lawsuit against Nationwide, including claims under the FMLA and of the Pennsylvania Human Relations Act. In dismissing the case, the lower court initially granted summary judgment in favor of the company, holding that Erdman had not worked the necessary 1250 hours to qualify for FMLA leave. Erdman appealed.

1. Hours worked at home might count toward 1250 hour requirement.
Last year, the 3d U.S. Circuit Court of Appeals addressed an issue of first impression for that court: whether Erdman’s of-site work hours could be counted toward the number of hours needed to qualify for leave under the FMLA. The Court decided that the issue was a question of fact, because the FMLA counts all work hours that an employer “knows or has reason to believe” are being worked by the employee. The Third Circuit held that a reasonable jury could conclude that Nationwide had constructive notice of the fact that Erdman had worked from home and, therefore, could find that she had worked the requisite number of hours to qualify for FMLA leave. The case was remanded back to the district court following that determination.

2. Ongoing antagonism supports FMLA retaliation claim
On remand, the district court specifically discussed Erdman’s FMLA retaliation claim, and determined that Erdman had provided sufficient evidence to create an issue of fact as to whether “ongoing antagonism” - including monitoring personal calls, misapplying company policies, and providing inconsistent reasons for the termination - to establish a causal link between her FMLA request and her firing. According to the court, those actions could allow a trier of fact to discredit the company’s contention that “incidents of inappropriate workplace behavior” prompted it to terminate Erdman’s employment.

3. FMLA can be “protected activity” under state law
To establish a prima facie case of retaliation under the Pennsylvania Human Relations Act (PHRA), Erdman must show that she “engaged in a protected activity” for which an adverse action was taken. In this case, Erdman claimed that the protected activity was her request for FMLA leave. She pointed out that the PHRA prohibits sex-based discrimination, and one basis of the FMLA as stated by Congress is to “expressly delineate how sexual/gender discrimination can occur in caretaker roles and how the purpose of the FMLA is to minimize employment discrimination based on sex.” Here, the district court predicted that, although Pennsylvania courts have not yet addressed the issue, the Pennsylvania Supreme Court would find that an FMLA request qualifies as a protected activity under the PHRA, and therefore denied Nationwide’s motion for summary judgment on the PHRA retaliation claim.

This case is one which employers should review and understand before taking an adverse employment action against any employee who is on FMLA leave or who has requested such a leave. While employers are entitled to impose disciplinary actions based upon violation of company policies and procedures, such actions cannot be based upon an employee’s FMLA leave. Importantly, an employee’s FMLA-related absences or intermittent-leave schedule does not provide a sufficient legal basis for disciplinary action against that employee.

Adverse employment action based on gender-related non-conforming behavior and appearance is impermissible.

Maria Danaher — Mon, 25 Jan 2010 07:48:07 -0500

Under Title VII, an unlawful employment practice is established when an employee demonstrates that gender is a motivating factor for an adverse employment action. Under that analysis, the 8th U.S. Circuit Court of Appeals has upheld the Title VII claims of a female hotel desk clerk who was fired after a company decision-maker complained that the employee lacked the pretty and “Midwestern girl” look desirable in a front desk employee. Lewis v. Heartland Inns of America, L.L.C., 8th Cir., No. 08-3860, Jan. 21, 2010.

Brenna Lewis began working for Heartland Inns of America in July 2005, starting out as a night auditor. In that job, Lewis worked the front desk from 11 p.m. to 7 a.m., doing it well enough to receive two merit-based pay raises and positive customer feedback.

In December 2006, Lewis’ manager, Lori Stifel, received permission over the telephone from the company’s Director of Operations, Barbara Cullinan, to offer to Lewis a daytime (7 a.m. to 3 p.m.) shift position on the front desk. Lewis accepted, and took over that position at the end of December. Although Cullinan initially had approved Lewis’ move to the day shift, her attitude changed after she met Lewis in person. At that point, Cullinan told Stipel that she wasn’t sure that Lewis was a “good fit” for the position, as Lewis lacked the “Midwestern girl” look that Cullinan felt was necessary at the front desk. By her own admission, Lewis is “slightly more masculine,” avoids makeup, and wears mens’ button down shirts and slacks. She has been mistaken for a male, and has been referred to as “tomboyish.” However, while Cullinan felt that front desk staff should be “pretty,” the front desk job description in Heartland’s personnel manual does not mention appearance.

Cullinan ordered Stifel to return Lewis to the overnight shift. When Stifel refused, Cullinan insisted that Stifel resign. Cullinan then required Lewis to re-interview for the day shift position, even though Lewis had held the position successfully for over a month. Lew protested, but attended the interview. Three days later, Lewis was fired. In its termination letter, Heartland stated that Lewis was “hostile” toward company policies and had attempted the “thwart” the interview process. Lewis then filed a lawsuit, asserting that Heartland fired her for not confirming to sexual stereotypes, and claiming that such conduct violated Title VII. The lower court disagreed and entered summary judgment in favor of the company. On appeal, the 8th Circuit reversed that decision, holding that sexual stereotyping can violate Title VII when it influences employment decisions.

Title VII prohibits discrimination based upon sex. In this case, Lewis provided evidence that Heartland found her unsuited for her front desk job based, not upon her work performance, but upon an appearance that was inconsistent with the company’s preferred feminine stereotype. At the summary judgment phase of a case, the question is whether a plaintiff has offered sufficient evidence from which a reasonable fact finder could find that the individual was discriminated against because of her sex. Here, the 8th Circuit found that Cullinan’s remarks, along with her discharge of Stifel for not taking Lewis off the front desk, and her imposition of a second interview even after Lewis performed successfully in the position, clearly provided such evidence.

The line between sexual orientation – which is not yet prohibited by federal law – 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 sex 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.

Non-disabled individual can support claim of "improper medical inquiry" under the ADA.

Maria Danaher — Sun, 17 Jan 2010 09:07:06 -0500

The Americans with Disabilities Act makes it illegal for employers to discriminate against disabled individuals. To that end, the Act includes a provision that, prior to an actual offer of employment, an employer “shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” The only inquiry that can be made is whether the applicant is able to perform job-related functions. In a case of first impression, the 11th U.S. Circuit Court of Appeals has held that a non-disabled employee can sue an employer for prohibited medical inquiry under the ADA. Harrison v. Benchmark Electronics Huntsville, Inc., 11th Cir., No. 08-16656, Jan. 11, 2010.

John Harrison was assigned as a temporary employee with Benchmark Electronics Huntsville, Inc. (BEHI) in 2005, working to repair and test electronic boards. At that time, if a BEHI supervisor believed that a temporary employee would meet the company’s needs, he could invite that individual to submit an application for permanent employment, which required undergoing a drug test and background screening.

In May 2005, Harrison submitted an employment application to BEHI at the suggestion of his supervisor, Don Anthony, and underwent the required drug screening and background check. At that point, Harrison had never been informed of any performance deficiencies or problems with his work attitude. Harrison’s drug screening came back positive which, under BEHI’s policy, required review by a Medical Review Officer (MRO). Anthony was contacted by BEHI’s HR department and was asked to “send [Harrison] her way.” Although HR did not tell Anthony about the positive drug test, Anthony discovered that information on his own, and informed Harrison that the test had come back positive for barbiturates. Harrison stated that he had a prescription for the drug, and Anthony asked him to produce it. Anthony immediately called the MRO and passed the phone to Harrison. Anthony remained in the room while Harrison answered a series of questions from the MRO, explaining that he had been diagnosed with epilepsy at age two, and took barbiturates to control the effects of that disease.

Shortly afterward, Harrison was informed by the MRO that his drug test had been cleared. However, Anthony told HR not to prepare an offer letter for Harrison. He further asked the temporary agency not to return Harrison to BEHI, stating that Harrison had “performance and attitude problems.” Harrison immediately was fired from the agency.

Harrison filed a lawsuit against BEHI under the ADA, alleging that the company had engaged in improper medical inquiry. BEHI moved for summary judgment which was granted by the district court. That decision was reversed by the 11th Circuit on appeal. The primary basis for the reversal was the appellate court’s answer to the question of whether a non-disabled individual can state a private cause of action for a prohibited medical inquiry under the ADA. (The EEOC had determined that Harrison’s epilepsy did not rise to the level of “disability” under the ADA. Although the 11th Circuit had not previously addressed that issue, it held – consistently with sister circuits which have specifically addressed that question – that the ADA precludes inquiries with respect to any applicant who has not yet received a job offer, whether or not the individual is disabled under the ADA.

This case raises an interesting issue. The ADA specifically recognizes an exemption for pre-employment drug tests (“a test to determine the illegal use of drugs shall not be considered a medical examination”), and allows an employer to validate the test results by asking about lawful drug use or possible explanations for the positive result other than illegal use of drugs. However, as this case makes clear, disability-related questions are prohibited. In fact, the Court in this case quotes the legislative history of the ADA to point out that the drug-test exemption “should not conflict with the right of individuals who take drugs under medical supervision not to disclose their medical condition before a conditional offer of employment has been given.” Therefore, while an employer may conduct follow-up questions in response to a positive drug test, there are specific limitations on the types of information that can be elicited by someone other than a medical officer. While BEHI’s procedure to have an MRO conduct follow-up questioning may have been consistent with the ADA, Anthony’s presence during Harrison’s responses and revelation of his medical condition was held by this Court to preclude summary judgment in favor of the company.

To support religious discrimination claim, employee must show that she met performance expectations.

Maria Danaher — Sun, 10 Jan 2010 09:58:05 -0500

A former editorial writer for the Indianapolis Star who claimed that she lost her job because of her “traditional” Christian beliefs regarding homosexuality was unable to support claims of religious discrimination under Title VII, because she could not show that she met the legitimate business expectations of her employer. Patterson v. Indiana Newspapers, Inc., 7th Cir., No. 08-2050, December 8, 2009.

Linda Coffey worked as an editorial writer for The Indianapolis Star and claims that she left the newspaper as a victim of employment discrimination. Coffey alleged that she was discriminated against because she is a Christian who believes that homosexual conduct is sinful. After she filed a lawsuit, the district court entered summary judgment in favor of the newspaper. That ruling was affirmed on appeal to the 7th U.S. Circuit Court of Appeals. (Note that Coffey filed her lawsuit along with another Star employee, James Patterson, who claimed age, race, and religious discrimination. His claim was dismissed, as well.)

The Indianapolis Star is that state’s largest newspaper. In 2003, Dennis Ryerson was named as the Star’s editor and vice president, and was responsible for newsroom staffing and editorial content. In that same year, Ryerson and Coffey, who was a member of the editorial department at the time, engaged in an e-mail exchange related to an editorial proposed by Coffey on the Supreme Court’s decision in Lawrence v. Texas. In that case, the Supreme Court held that the right to privacy protects adults engaging in private, consensual homosexual activity. Coffey, who describes herself as a “traditional Christian,” proposed an editorial that described, in graphic detail, HIV risks associated with such activity. Although Ryerson refused to publish that column, he said that he was open to publishing a less graphic column on the risks of unprotected sex. That refusal triggered an e-mail exchange that Ryerson perceived as an attempt by Coffey at workplace proselytizing, which he warned Coffey was inappropriate.

During this same period, Coffey had developed a habit of violating the Star’s overtime policy by failing to have her overtime pre-approved. Although she was warned of this violation, Coffey continued to do extra work without pre-approval, often submitting hours that were viewed by the paper as “excessive and unnecessary.” In September 2003, administrative oversight for the Star’s internship program was transferred from Coffey to the newsroom editor, leaving Coffey with a less than full-time position. Although Ryerson offered Coffey a full-time position on the copy-desk, Coffey preferred editorial writing and resigned rather than transfer. On her last day at the Star, Coffey sent an e-mail stating that she had “enjoyed and appreciated” her work on the paper. However, in her lawsuit, Coffey claimed that the proposed transfer to the copy department was an adverse action, based on religious discrimination.

The Seventh Circuit upheld the dismissal of Coffey’s claims, stating that Coffey could not show that she met the Star’s legitimate performance expectations, because the undisputed evidence showed that Coffey continually had violated the paper’s overtime policy. Further, to the extent that Coffey claimed that Ryerson would have permitted someone who did not share Coffey’s religious views to remain in the editorial department notwithstanding violation of company rules, Coffey failed to show that a similarly situated employee (an editorial writer who repeatedly violated overtime rules) who did not hold her same religious beliefs (that homosexual conduct is “sinful”) was treated more favorably and, therefore, Coffey was unable to support her prima facie case of religious discrimination. Moreover, Coffey’s claim of “constructive discharge” was belied by her final e-mail, which expressed no complaint or concerns.

While claims of religious discrimination should be taken seriously by employers, such claims do not overshadow an employee’s duty to meet legitimate job responsibilities. In order to effectively establish the defense asserted by the Star in this case, an employer should have a written job description that sets forth the responsibilities of the employees. In addition, clear, objective, and complete records of the individual employee’s performance should be made and kept by the employer, in order to support the assertion that the employee has not met the employer’s legitimate expectations. In this case, documentation of meeting and warnings associated with Coffey’s violation of the overtime policy was critical in establishing Coffey's failure to meet her employer’s expectations.

FTC guidelines may create company liability for employees' online endorsements.

Maria Danaher — Mon, 04 Jan 2010 09:14:32 -0500

In October 2009, the Federal Trade Commission (FTC) issued final guidelines, which became effective on December 1, 2009, regarding the use of “endorsements and testimonials” in advertising. “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” 16 CFR Part 255. Under those guidelines, employees who use social media like blogs or Facebook to make statements about their employers’ products may create unintended legal liability for their employers if a consumer later claims to have been misled into purchasing an allegedly dangerous or defective product by such a posting.

Under the guidelines, the FTC defines an “endorsement” as an advertising message that consumers are likely to believe reflects the opinions beliefs, findings, or experiences of a party other than a sponsoring advertiser. An endorsement must not include any representation that would be deceptive if made directly by the sponsoring advertiser. Further, the guidelines specifically state that companies are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers. Importantly, the guidelines impose liability on endorsers and companies who fail to disclose “material connections” between an endorser and the company about whose products that endorser comments.

Therefore an employee who uses electronic media, including e-mail, blogs, or social networking sites, to make comments about a product made by his or her employer, and who fails to disclose his or her relationship with that manufacturer may create legal liability under the FTC guidelines. Further, should a consumers rely on a particular comment in that posting to his or her detriment, any ensuing damage could be attributed to the manufacturer/company.

A clearly written, widely distributed, and consistently enforced social media policy can help to avoid liability for violation of these FTC guidelines. Because the guidelines are designed to protect consumers against misleading advertising and endorsements, a company’s written directive to its employees to avoid publishing “endorsements” that are misleading or in which the employee’s relationship to the company is not revealed can help to avoid legal liability.

While the FTC’s own comments to the guidelines include a statement that the Commission would be “unlikely” to take action against a company for the conduct of a single “rogue” employee who violates a company’s social media policy via an illegal endorsement, that comment remains to be tested. Should a non-compliant endorsement create broad consumer injury or damage, the endorser’s employer may find that it cannot escape associated liability under the new guidelines. While guidelines themselves do not have the same force that a statute does, courts view them as an indication of how a law should be interpreted, and often act consistently with them.

Employers should review their written social media policies, and should assure that its employees are aware of the fact that the company has a concern and an interest in employees’ comments about company products. Further, employers should take action when an employee acts in violation of an applicable social media policy, in order to insure its own credibility during a review of the situation by the FTC.

Fear of potential violence by an impaired employee can be a legitimate non-discriminatory reason for termination.

Maria Danaher — Mon, 28 Dec 2009 14:28:43 -0500

Under the Americans with Disabilities Act and parallel state statutes, an employer cannot take an adverse action against an employee because of that person’s disability or perceived disability. However, an employer is justified in taking such action if the action is based upon a legitimate business reason, and if that reason is not simply a pretext for discrimination. A Tennessee district court has held that firing an employee because of fear of potential violence by that individual is a “legitimate non-discriminatory reason” for an employee’s termination, in spite of the fact that the employee had been diagnosed with bi-polar disorder. Calandriello v. Tennessee Processing Ctr., M.D. Tenn., No. 3:08-1099, Dec. 15, 2009.

Robert Calandriello sued his former employer, Tennessee Processing Center (TPC) for disability discrimination under the state’s anti-discrimination statute. The company filed a motion for summary judgment, which was granted by the district court. The court’s decision was premised on the third step of the shifting burden analysis, which requires an employee to disprove the company’s “legitimate business reason” for an adverse employment action.

Beginning in 2005, Calandriello worked at TPC’s Nashville location, which processed business data on which U.S. government stock and wire transfers were based. Because of the nature of the business conducted, TPC operated under certain security protections including FBI record checks for employees, a gated facility, and retinal scans for employee access.

In September 2007, TPC issued a “final warning” to Calandriello after learning that Calandriello had used company equipment to modify a company poster by adding a photo of Charles Manson. During the disciplinary process, Calandriello acknowledged that he made a poor choice in displaying the poster, but informed TPC (for the first time) that he suffered from bi-polar disorder which, he said caused that lapse in judgment. Calandriello also argued that because he had not destroyed company property, threatened anyone, or caused financial loss to the company, he should be exempt from disciplinary action, because he was entitled to “accommodation” under the ADA.

In spite of that, Calandriello was fired after further investigation showed that he had viewed online images of violence, assault weapons, and serial killers on his company computer. TPC’s action was based on a “loss of confidence” in Calandriello, and a concern that Calandriell’s continued employment posed a risk of workplace violence. Calandriello admitted to viewing sites about assault weapons and serial killers, but argued that guns were a “constant conversation topic” in the workplace at TPC.

Nonetheless, the court found in favor of TPC, holding that “fear of potential violence is a legitimate non-discriminatory reason for an adverse employment action,” including termination, and quoted a federal appellate court opinion that the ADA “does not require an employer to retain a potentially violent employee.” It further found that Calandriello was unable to provide evidence that the reason given by TPC for the termination was simply a pretext for discrimination. TPC was able to substantiate its position by citing a written company policy that specifically prohibited employees from visiting internet sites that are “known to contain or are suspected of containing objectionable matter” including “profane or otherwise inflammatory material.”

This case should not be viewed as a blank check for the discipline or termination of employees with bi-polar disorder. The deciding factors here included the high security workplace and the written company policies related to company computers. Further, the fact that the company was unaware of Calandriello’s impairment until after its initial disciplinary action supports its argument that the termination was based on “legitimate non-discriminatory” reasons. Employers should view issues related to medical and psychological impairments on a case-by-case basis to assure compliance with both state and federal laws.

Ogletree Deakins E-Alert: COBRA Subsidy extended

Maria Danaher — Mon, 21 Dec 2009 07:18:11 -0500

On December 21, 2009, just in time for the holidays, and as part of the 2010 appropriations bill for the Defense Department (the Act), President Barack Obama signed into law an extension to the subsidy for COBRA created by the American Recovery and Reinvestment Act (ARRA). The legislation extended the period during which involuntary terminations would trigger subsidy eligibility, as well as expanding the duration of the subsidy. Employers and plan administrators also will face new notice and administrative requirements to implement the subsidy extension on a retroactive basis. Below are a few of the highlights.

First, the Act expands the maximum subsidy period from nine months to 15 months, including individuals currently receiving subsidized COBRA coverage.

Next, the Act extends the period during which a COBRA-qualifying event resulting from an involuntary termination of employment can trigger eligibility for the subsidy, extending the end of that period from December 31, 2009 to February 28, 2010.

The Act resolves a thorny issue created by the language of the ARRA regarding eligibility for the subsidy. Originally, the ARRA required that both the qualifying event and the beginning of the COBRA coverage period occur on or before December 31, 2009, for an individual to be eligible for the subsidy. This meant that individuals whose employment terminated in December and coverage expired on December 31, but whose COBRA coverage commenced on January 1, would not have been eligible. The Act changes this by conditioning subsidy eligibility solely on the timing of the qualifying event, which is the event causing the loss of coverage. Assistance-eligible individuals who experience an involuntary termination (a qualifying event) on or before February 28, 2010 would be eligible for the subsidy (even if their COBRA coverage would not start until March).

The Act also protects individuals who, before the Act, exhausted their nine months of subsidized COBRA coverage and then did not continue coverage by paying full COBRA premiums. Under a transition period, those individuals would be able to pay those premiums retroactively if they do so by a certain date – the later of February 19, 2010, or 30 days from receipt of a new required notice.

For those assistance-eligible individuals who exhausted their nine-month subsidy but continued to pay the full COBRA premium in order to keep coverage in place, the amendment allows employers to apply the same refund or crediting rules that were in the ARRA.

Plan administrators will be required to issue a notice describing the new subsidy rules to all individuals who were or are assistance-eligible individuals on or after October 31, 2009, or who are terminated from employment on or after October 31, 2009. In addition, the Act requires special notice to those assistance-eligible individuals who either dropped COBRA or paid the full premium for it when their nine-month subsidy ended, explaining that they are now eligible either to reinstate their coverage retroactively at the subsidized rate or to receive a credit or refund if they paid more than the Act would have required.

The other terms and conditions of the initial COBRA subsidy will continue to apply (see Ogletree Deakins' April 2, 2009 E-Alert). Should you have any questions about this legislation or its impact on employers, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via e-mail at clientservices@ogletreedeakins.com.

Leave of absence taken in order to recover from a disability is not necessarily a "reasonable accommodation" under the ADA.

Maria Danaher — Mon, 14 Dec 2009 11:44:35 -0500

In an unpublished opinion, the 2d U.S. Circuit Court of Appeals has held that an employee who requested a leave of absence to consult an orthopedic surgeon was unable to prove that the absence would allow him to perform the essential functions of his position. Therefore, the absence was not a "reasonable accommodation" for purposes of the ADA. Graves v. Finch Pruyn & Co., 2d Cir., No. 09-1444, unpublished, 11/17/09.

George Graves worked as a paper inspector for Finch Pruyn & Company. Graves requested an unpaid leave of absence from his job to consult with a surgeon about a foot problem from which he suffered. When Graves subsequently was terminated from his employment, he sued the company for discrimination under the Americans with Disabilities Act. Finch's motion for summary judgment was granted by the district court, which held that the leave sought by Graves was not a reasonable accommodation and, therefore, that Graves was unable to set forth the required prima facie case. On appeal, that decision was upheld by the Second Circuit.

Under the ADA a "reasonable accommodation" is something that enables a disabled employee to perform the essential functions of his job. An employer typically is required to engage in an interactive process with a disabled employee and to work with him to implement a reasonable accommodation, unless such accommodation creates an undue hardship for the company. In Grave's case, there was no dispute that immediately prior to the request for leave, Graves could not perform the essential functions of his job, which required standing for long periods of time and lifting and pushing large rolls of paper. His request for a leave of absence was for the specific purpose of consulting with a surgeon. However, the request included no assurance that such consultation would then allow Graves to be able to perform the essential functions of his job. In fact, a report from one of Graves doctors indicated that it was "unlikely" that Graves could return to his previous occupation after the contemplated surgery. Further, the same doctor provided a report that ultimately allowed Graves to qualify for a disability retirement. Based on all of this, the Court concluded that the evidence did not provide assurance that Graves' would ever be able to perform the essential functions of his job, even with the request two-week leave of absence. Graves therefore could not support the element of his prima facia case that required him to show that he was able to do the essential functions of his job with an accommodation.

The Court made an additional, and notable, point: that an employee may not rely on a company's failure to engage in the interactive process if he cannot also show that a reasonable accommodation actually exists at the time of the complained-of adverse action. Employers should not interpret this holding to mean that they can ignore the obligation to interact with an employee regarding a requested accommodation. Instead, an employer should recognize that before rejecting an employee's request for job modification, full and considered evaluation of the proposed "accommodation" should be done in order to determine whether such request will enable the individual to return to his or her essential functions.

Attendance at work is an essential function of the job in most instances.

Maria Danaher — Mon, 07 Dec 2009 10:42:29 -0500

In an unpublished opinion, the 2d U.S. Circuit Court of Appeals has held that an employee of the New York City Department of Education could not establish a prima facie case of disability discrimination, because she could not prove herself to be “otherwise qualified” within the meaning of the Americans with Disabilities Act (ADA). Rios v. Dept. of Education, 2d Cir., No. 08-1262-cv, unpublished, November 2, 2009.

Wilda Rios, an employee of the New York City Department of Education (DOE), alleged that her employment termination was based upon her disability, and that the employer’s claim that she was terminated for attendance policy violations was simply a pretext for that discrimination. When the district court granted summary judgment in favor of the Department of Education, Rios appealed. The Second Circuit affirmed the decision, finding that Rios’ frequent absences removed her from the protection of the ADA.

Discriminatory discharge claims under the ADA are reviewed under the McDonnell Douglas shifting burden analysis. That analysis requires the plaintiff first to set forth a prima facie case showing that he or she is disabled within the meaning of the ADA and is “otherwise qualified” to perform the essential functions of the job in spite of the disability, with or without reasonable accommodation. Next, the employer is required to proffer a “legitimate business reason” for its adverse employment action. The final burden shifts back to the plaintiff, who then must prove that the employer’s proffered reason is a pretext, and that the actual reason for the adverse action is discrimination.

In Rios’ case, there was documentary evidence that Rios “repeatedly failed to show up for work on time or at all for a variety of reasons, many of which were unrelated to her claimed disability.” In response to those absences, the DOE imposed certain disciplinary actions, and ultimately terminated Rios’ employment.

While Rios claimed that her firing was based upon her disability, the DOE argued that her attendance at work was an essential function of her position. The Court agreed with the employer, and specifically found that by imposing discipline for Rios’ excessive absences, the DOE demonstrated the essential nature of Rios’ attendance and punctuality to her job. Because Rios was unable to establish a regular attendance pattern, she was not “otherwise qualified” to fulfill one of the essential functions of the position, and therefore was unable to establish a prima facie case under the ADA. In addition, even if the Court had found that Rios’ prima facie case had been effectively established, the DOE’s motion for summary judgment would have been granted on the basis that Rios showed no actual evidence that the DOE’s legitimate business reason for Rios’ firing was simply a pretext for discrimination.

This case shows the importance of the consistent enforcement of an employer’s attendance policy (and documentation of an employee’s violation of that policy) to the defense of a claim of discrimination under the ADA. By implementing and enforcing such a policy, an employer indicates the essential nature of an employee’s attendance, and can use such information to underscore the legitimacy of disciplinary actions related to an employee’s violation of the same.

Documentation of employee's "dereliction of duty" precludes liability on claim of discrimination.

Maria Danaher — Mon, 30 Nov 2009 09:56:16 -0500

In an unpublished opinion, the 3d U.S. Circuit Court of Appeals has reminded employers of the importance of acting consistently with written policies, and of documenting that action. Coleman v. Blockbuster, Inc., 3d Circ., No. 08-4056, November 17, 2009. In that case, the Court upheld summary judgment in favor of an employer on the basis of the company’s ability to support its proffered “legitimate business reason” for the termination of a company manager for closing a store early and leaving the premises for a family emergency.

Tyra Coleman, an African American female, was hired by Blockbuster in September 2003 and was promoted to the position of store manager a few months later. However, after a series of disciplinary actions, Coleman was fired on June 22, 2004. In April 2004, Coleman had received two written “Corrective Action Reports” (CARs) for her store’s poor operational performance. On June 11, she received a third CAR when she missed a mandatory team meeting, and brought her two-year-old grandson to work with her. The third CAR was treated as a last chance agreement and read, in part, “Failure to improve will result in termination of employment.” On June 15, 2004, Coleman closed the store early and left the premises, ostensibly because of a medical emergency involving her minor son. Her employment was terminated the following week.

Coleman ultimately filed a lawsuit, claiming that the actual reason for her termination was race discrimination. The district court granted summary judgment in favor of Blockbuster; that decision was upheld on appeal.

Employment discrimination claims typically are analyzed under a “burden shifting” framework which requires an employer to offer a legitimate business reason for its action. In this case, Blockbuster argued that it acted pursuant to its written policy of progressive discipline. Coleman countered that the company acted “too harshly” when it fired her for her son’s emergency, and asserted that such harshness was an indication that the firing was racially motivated.

The Third Circuit pointed to the fact that whether or not Coleman believed her termination to have been “harsh,” she was unable to demonstrate that Blockbuster treated her less favorably than other, non-minority employees. To the contrary, the Court found that “Blockbuster came forward with solid evidence to demonstrate that the reason for Coleman’s termination was her dereliction of duty.” The Court pointed out that the company’s operating procedures allow the company certain discretion in its disciplinary measures, including the application of “more stringent penalties” for an employee – like Coleman - who already is in the progressive disciplinary system at the time of an additional infraction. While Coleman disputed certain factual evidence, she was unable to show any evidence that even suggested that her termination was motivated by her race, and not by her “dereliction of duty,” as stated by the company.

There is no doubt that Blockbuster’s documentation of its disciplinary actions, and its compliance with its progressive disciplinary policy (which gave it broad discretion to accelerate disciplinary measures when deemed appropriate) were the keys to its success against Coleman’s claims of discrimination in this case.

The Genetic Information Nondiscrimination Act (GINA) has taken effect.

Maria Danaher — Sun, 22 Nov 2009 17:51:49 -0500

With little fanfare and even less reaction from employers, the Genetic Information Nondiscrimination Act (GINA) took effect on November 21, 2009. GINA generally prohibits employers, employment agencies, and unions from collecting genetic information – which specifically includes family medical history - related to employees or applicants. The law also precludes any type of genetic testing of employees or applicants.

The procedures and remedies associated with GINA parallel those of Title VII, the federal non-discrimination law, and prohibit discrimination in hiring, training, and placement of individuals because of their genetic information. GINA’s provisions related to the treatment and non-disclosure of genetic information are taken from the Americans with Disabilities Act’s procedures regarding the confidentiality of medical information. GINA generally precludes employers from obtaining and sharing medical information that falls within the definition of genetic information.

While GINA is now in effect, the EEOC’s final rule, which will provide direction regarding enforcement, has not yet been issued. The proposed regulations are in the final stages of review, but there has been no word as to when the White House Office of Management and Budget (OMB) will approve those regs. Once approved, the regulations will face a final vote by the EEOC commissioners, and a subsequent final publication in the federal register.

Employers’ preparation for that final approval should include updating workplace posters (the EEOC already has issued a revised version of its anti-discrimination poster that includes reference to GINA), revising handbook and policy manuals, and generally informing and training supervisors and managers that genetic bias is now prohibited. That training should include the warning that companies may be held liable for retaliation under GINA is they take adverse action against an employee or applicant whose genetic information has been disclosed to the company, even if that disclosure was made through informal communication. Therefore, companies should be sensitive to the day-to-day conversations among employees, and should take action to prevent or stop discussions related to an individual’s family medical history, in order to prevent such information from becoming the actual or perceived basis for subsequent adverse employment actions, either of which could form the basis of a claim of discrimination under GINA.

9th Circuit rules that Rehabilitation Act covers discrimination claim by an independent contractor.

Maria Danaher — Mon, 16 Nov 2009 17:39:28 -0500

The Rehabilitation Act of 1973 was the first major federal statute to focus on the rights of individuals with medical impairments. Section 504 of the Act creates a private right of action for individuals claiming to have been discriminated against in any “program or activity” receiving federal financial assistance. Courts have included federally funded employment as one such “program.”

Amendments to the Rehabilitation Act have incorporated certain standards and remedies from other civil rights laws, and specifically have incorporated the standards of the Americans with Disabilities Act that determine whether employment discrimination has occurred. The 9th U.S. Circuit Court of Appeals recently addressed an issue on which appellate courts are divided, and has held that unlike the ADA, the Rehabilitation Act protects independent contractors as well as employees. Fleming v. Yuma Regional Medical Center, 9th Cir., No. 07-16427, 11/19/09.

Dr. Lester Fleming entered into a contract in May of 2005 to provide anesthesiology services to Yuma Regional Medical Center in Yuma, Arizona. Prior to beginning work in November of that year, Fleming was asked – and refused – to sign an addendum to his employment contract that would have precluded a schedule that accommodated Fleming’s sickle cell anemia. Based on that refusal, Fleming’s employment contract was cancelled. Fleming sued Yuma for breach of contract and for violation of Section 504 of the Rehabilitation Act. The district court granted summary judgment in favor of Yuma, ruling that Fleming was an independent contractor and, as such, was not protected from disability discrimination by the Rehabilitation Act. Fleming did not dispute his independent contractor status, but appealed the determination related to whether he was covered under the Act.

The Ninth Circuit reversed the dismissal, ruling consistently with a prior Tenth Circuit decision that Section 504 incorporates only the ADA’s standards for what conduct violates the Act, and not the definition of who is covered by the protections of the Act. The Court based its determination on the fact that the Rehab Act is broader than the ADA, covering any “otherwise qualified individual” who has been excluded from a program receiving federal funds, and not just employees. Further, the programs covered under Section 504 are all such operations, not just employment, whereas the ADA is limited to the employer-employee relationship. Because Congress did not use general language when it referred to the ADA in Section 504, and did not restrict the scope of the Act to employment, the Ninth Circuit was hesitant to “reduce the express scope of the Rehabilitation Act by wholesale adoption of definitions from another Act.”

The Ninth Circuit’s decision puts it in direct conflict with the Sixth and Eighth Circuits, each of which previously has held that Section 504 does incorporate the ADA’s employer-employee relationship requirement into the Rehabilitation Act. While the Ninth Circuit’s opinion spells out the rationale for its divergence from these decisions, there still exists a major split in the Circuits on the issue, creating an issue of concern for employers and their attorneys in the remaining circuits, and one which they will be following until the issue is addressed, if ever, by the U.S. Supreme Court. In the meantime, employers should be aware of this decision, and should take it into account when making decisions related to employees and independent contractors with medical impairments.

Termination for poor performance discussed prior to FMLA leave does not support retaliation claim.

Maria Danaher — Mon, 09 Nov 2009 09:13:15 -0500

The Family and Medical Leave Act prohibits employers from discriminating against employees who have taken leave under that Act. However, the 7th U.S. Circuit Court of Appeals has affirmed summary judgment in favor of an employer who terminated an individual for excessive absenteeism and performance issues that developed prior to that employee’s request for FMLA leave, even though her termination occurred during that protected leave. Long v. Teachers’ Retirement System of Illinois, 7th Cir., No. 08-3094, Oct. 23, 2009.

Julie Stephens Long was employed by the Teachers’ Retirement System of the State of Illinois (TRS) from 1985 until her termination in 2006. Starting in 2000, Long worked in TRS’ payroll department, where she had responsibilities that included enrolling members in an electronic fund transfer (EFT) program, entering information into a database, and verifying bank routing and account numbers. She reported directly to TRS’ Payroll Insurance Manager (Branham). While Long’s initial performance in Payroll was good, both her absences and her work errors increased over time. In June of 2005, Long missed 25% of her scheduled work days; this rose to 40% during the following month. In addition, Long failed to train employees from other departments on the EFT process, in spite of multiple directives from Branham to do so.

On July 26, 2005, Branham met with Long to inform her that because of her frequent absences, he planned to withdraw his nomination of her for a promotion. In September, Branham traced several errors in the EFT system to Long. He then met with Long to discuss her errors, her failure to conduct the requested training sessions, and the effect of her increased absences on co-worker morale. He summarized those issues in a memo dated September 20, 2005.

On September 26, Long applied for FMLA leave for medial epicondylitis (“tennis elbow”). After the leave was granted, Long informed TRS that her September absences were related to that condition. She then modified her leave request to ask for intermittent leave for treatment of ovarian cysts. She took six days off in October and eight days in November under that leave. However, she also was absent on nine days in December 2005 and five in January 2006 for non-FMLA reasons. Branham’s frustration with Long increased to the point where he met with TRS’ HR manager (Larkin) and a Deputy Director of its Benefits Department (Sherman) and recommended that Long be fired. Larkin then undertook a full review of Long’s performance evaluations, co-worker and TRS member complaints, and comments from both Branham and Sherman, and then recommended to TRS’ Executive Director (Bauman) that Long’s employment be terminated. Bauman had no knowledge of Long’s FMLA leave when he made the final decision to fire her.

Long filed suit against TRS, claiming violation of the FMLA. While TRS did not dispute the fact that Long engaged in protected activity when she took the FMLA leave, it argued that its decision to fire her was based on a number of factors, and not on any retaliatory animus. The district court granted summary judgment in favor of TRS, and decision was upheld by the 7th Circuit on appeal.

Long’s lawsuit centered around the claim that Branham was angry about her absences, and that he unduly influenced the decision to fire her on that basis. However, the Court noted that Long had not applied for leave prior to the documented disciplinary meeting with Branham on September 20, and that Branham already had documented the fact that Long’s absences were negatively affecting the performance of her group prior to Long’s request for leave. Therefore, any comments by Branham regarding Long’s pre-FMLA leave absences could not be used as evidence of FMLA retaliation on Branham’s part. Further, the Court pointed to Larkin’s independent investigation, in which she reviewed not only Branham’s comments, but information from others as well. The decision to fire Long ultimately was made by Bauman, who relied on multiple sources of information, and was unaware of Long’s FMLA leave.

The critical issues in this matter are ones of which employers should be aware: (1) Branham’s documentation of his September meeting with Long showed that there were performance concerns prior to Long’s request for FMLA leave; (2) the multiple sources of information used in the termination investigation supported TRS’ argument that Branham’s concerns about Long were not the sole basis for TRS’ decision; and (3) the independent deliberation of the ultimate decision-maker was evidence that Branham was not the deciding factor in the adverse action against Long. Companies that follow this model of “documentation/multiple sources of information/independent decision-making” are far more likely to be successful in avoiding liability under the FMLA.

FMLA amended to expand available time for leave related to family members in the Armed Forces.

Maria Danaher — Mon, 02 Nov 2009 12:42:52 -0500

On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA), which includes provisions that expand the military leave entitlements of the Family and Medical Leave Act (FMLA) by expanding both the “qualifying exigency” leave and military caregiver leave that became effective in January 2008.

Prior to these new amendments, an eligible employee whose spouse, son, daughter or parent was on active duty or called to active duty in support of a contingency operation as a member of the National Guard or Reserves was entitled to “qualifying exigency” leave. The new law extends qualifying exigency leave to an eligible employee whose spouse, son, daughter, or parent is a member of any branch of the military, including the National Guard or Reserves, and who was deployed or called to active duty in a foreign country. In addition to extending qualifying exigency leave to eligible family members of a member of any branch of the Armed Forces, the new law eliminates the requirement that the active duty be in support of a contingency operation.

The new law did not change the length of leave entitlement under the FMLA. A covered employer still must allow an eligible employee up to a total of 12 workweeks of unpaid leave during the normal 12-month period established by the employer for FMLA leave. The reasons for which an eligible employee can take qualifying exigency leave also are unchanged. Such leave still can be taken for short-notice deployment, military events, and related activities such as official ceremonies, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status.

The new amendments expand military caregiver leave in two ways: First, the new law extends military caregiver leave to eligible family members of veterans who were members of any branch of the military at any time within five years of receiving the medical treatment that triggers the need for military caregiver leave. Therefore, employees who are family members of a current service member or veteran undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred in the line of duty may take up to six months of caregiver leave, so long as the veteran was a member of the military within five years of receiving such treatment. Employers do not have the option of using the typical FMLA calendar-year method for military caregiver leave – the 12-month period begins when the employee begins using caregiver leave.

Second, the new amendment expands the definition of a “serious injury or illness” for purposes of determining eligibility for military caregiver leave. It has been expanded to include the aggravation of existing or pre-existing injuries to an active duty service member in the Armed Forces. Thus, employees may now take military caregiver leave for a family member whose pre-existing injury or illness was aggravated while on active duty. For veterans, the definition allows the leave whether the injury or illness manifested itself before or after the Armed Forces member became a veteran.

The NDAA did not specify the date on which these amendments to the family military leave entitlements become effective. Thus, the presumption is that these changes took effect when President Obama signed the NDAA on October 28. It is anticipated that the U.S. Department of Labor will issue guidance to address the changes in the near future.

Termination of teacher after her complaints on behalf of disabled students may constitute ADA retaliation.

Maria Danaher — Mon, 26 Oct 2009 12:02:22 -0500

The 9th U.S. Circuit Court of Appeals has held that a teacher’s statements on behalf of disabled students were “protected activity” under the ADA, and that the teacher had standing to sue for retaliation under the ADA and Section 504 of the Rehabilitation Act. Barker v. Riverside County Office of Education, 9th Cir., No. 07-56313, Oct. 23, 2009.

Susan Lee Barker was hired as a Resource Specialist Program teacher with the Riverside County Office of Education in California in 2002. As early as 2003, Baker began to express her concerns to the County regarding its special education services for students with disabilities, and complained that the services did not comply with state or federal law. In 2005, Barker and a co-worker filed a lawsuit with the federal Department of Education’s Office related to those issues.

Barker resigned on August 1, 2006, stating that her working conditions had become intolerable after she filed the 2005 complaint. She subsequently filed a federal court retaliation claim under the ADA and the Rehabilitation Act, alleging that she was constructively discharges by being excluded from meetings, that her caseload was reduced, and that she was refused certain work, all because of her support of the students and complaints on their behalf. The district court granted the County’s motion to dismiss the case, finding that Barker lacked standing to sue for retaliation under either of the two statutes.

The Ninth Circuit reversed, finding that both the ADA and the Rehabilitation Act include a broad anti-retaliation provision that shield’s “any individual” who is harmed after attempting to protect the rights of the disabled. The County argued that Barker could not sue because she was not a “qualified individual with a disability” and that she had no “close relationship” to the disabled students. However, the Ninth Circuit specifically found that Section 504 of the Rehabilitation Act grants standing to non-disabled people who are retaliated against for attempting to protect the rights of the disabled, as does Title II (the “public accommodation” provision) of the ADA.

The interesting issue in this case is that the lower court automatically analyzed the case under Title I (the “non-discrimination in employment” provision) of the ADA, because Barker was suing her employer. However, Barker’s claim addressed the County’s relationship with the students, and was appropriately brought under Title II. Based on this case, public employers should carefully analyze issues brought by employees regarding individuals with disabilities, and should be aware that adverse actions taken against such employees could have implications under the ADA or the Rehab Act.

Disabled employees must provide corroborating evidence of non-obvious, medically necessary accommodations.

Maria Danaher — Mon, 19 Oct 2009 09:08:14 -0500

Under the Americans with Disabilities Act, employers and employees are required to engage in an interactive process with respect to a disabled employee’s request for a reasonable accommodation. In cases of psychological disability - depression, for example - necessary accommodations may be non-obvious to the employer. In those cases, courts have held that in order to trigger an employer’s obligation to provide accommodation, a disabled employee must make the employer aware of any non-obvious, medically necessary accommodations by supplying corroborating evidence, such as a doctor’s note or statement. Recently, the 7th U.S. Circuit Court of Appeals reversed a lower court’s dismissal of a case, and found that a school failed to engage in the required interactive process after a teacher provided a doctor’s statement that linked the teacher’s Seasonal Affective Disorder depression to the lack of windows in her classroom. Ekstrand v. Sch. Dist. of Somerset, 7th Cir., No. 09-1853, Oct. 6, 2009.

Renae Ekstrand taught kindergarten from 2000 to 2005 at Somerset Elementary School in Wisconsin. In 2005, Ekstrand’s request to be transferred to teach first grade was granted; she was assigned to a classroom that lacked exterior windows. At that time, Ekstrand informed the principal that she suffered from Seasonal Affective Disorder (“SAD”), a form of depression, and would have difficulties teaching without access to natural light. While two alternate rooms were available, both with windows, no transfer to either of those rooms was made. During the initial weeks of the 2005 school year, Ekstrand’s health declined, and she continued to ask for a room with access to exterior windows, which was denied. However, during that same time, the school did address Ekstrand’s requests related to other work area issues, including inadequate ventilation and the lack of various educational necessities, like bulletin boards and a locking cabinet. Ekstrand’s health problems worsened, and on October 17, her doctor placed her on medication and advised a leave of absence for the remainder of the term.

During the following months, Ekstrand continued to ask for the room change, advising the school that she would be able to return under that condition. On November 28, 2005, Ekstrand’s psychologist notified the school district, through its representative, of the importance of natural light for individuals with a history of SAD, and opined that Ekstrand’s depression was a direct result of her transfer to a room lacking access to natural light. Still, the school district did not make the requested room change, and Ekstrand ultimately left her employment at Somerset and began teaching elsewhere.

In 2008, Ekstrand sued the school district, alleging failure to accommodate, as well as constructive discharge. A federal district court granted the school district’s motion for summary judgment on both claims, holding that the school engaged in the interactive process when it addressed Ekstrand’s other work-related issues, and that the school’s conduct did not amount to a constructive discharge. On appeal, the 7th Circuit upheld dismissal of the discharge claim, but reversed the ADA dismissal. The reversal was based primarily on the fact that once it was aware of natural light’s medical necessity to Ekstrand (after being informed by Ekstrand herself that she was willing and able to return to work in a classroom with access to such light), the school district was obligated to provide that requested accommodation, unless it could show that the request would impose an “undue hardship” for the school. After reviewing the proffered evidence related to the proposed classroom change, the Court determined that there would be “little hardship” related to the switch, and reversed the dismissal of Ekstrand’s claim on that basis.

While the ADA is focused primarily on the interests of disabled employees, the Act’s “reasonableness” standard regarding the interactive process protects the interests of employers by allowing them to show that a requested accommodation would create an undue hardship. However, not every non-zero cost to an employer will be viewed by the courts as “undue” hardship. In this case, the evidence produced by the school indicated that the cost and disruption associated with the classroom change would have been “modest,” leading the Court to find that once the school was informed by the doctor that Ekstrand’s depression was cause by lack of natural light, an obligation was created that either required the school to make the change, or prove that the hardship generated by the change would be significant. Neither occurred, and Ekstrand’s case will go forward on the issue of whether the school failed in its duty to accommodate. Employers should recognize when an accommodation has been requested, full and considered evaluation of the costs and effects should be done promptly, and documentation of those efforts should be complete, in order to support the employer’s decision with respect to the request.