Human resources & employment law cumulative case briefs
Download 5.55 Mb.
|
| The FMLA does not provide for paid leave nor does it dictate the wage rate for an employee to receive while on light duty under a workers' compensation plan. Light duty also is not covered by Compass Group's CBA. Accordingly, we AFFIRM the district court's grant of summary judgment to Compass Group.
Title VII: retaliation; close relation in time Timing is critical in retaliation cases. This case is not controlling law in our jurisdiction, but the reasoning is sound and might be persuasive here. Pantoja v. American NTN Bearing Manufacturing Corporation, No. 06-1252 (7th Cir., 8/6/07); 2007 U.S. App. LEXIS 18611[enhanced lexis.com version]. Juan Pantoja claimed that disciplinary warnings were retaliation or reprisal for filing a racial discrimination claim, and the appellate court agreed he was entitled to a jury trial because a reasonable juror could infer from the relevant facts that there was a causal connection between the employer' discipline and the discovery by the employee's supervisor that the employee had filed an EEOC claim. Title VII: religion, pharmacist, contraceptive, accommodation, undue hardship, adverse employment action; summary judgment Note the ADA factors imported into this Title VII case. This is becoming quite common in both federal and state cases. This case is not controlling law in our jurisdiction, but the reasoning might be persuasive here. Vandersand v Wal-Mart Stores, Inc., 2007 U.S. Dist. LEXIS 55250 (C.D.IL, 7/31/07) [enhanced lexis.com version]. This Wal-Mart pharmacist was put on unpaid leave for refusing to dispense emergency contraceptives was found to have a claim that should be heard by a jury to determine if there were reasonable accommodations that could be made for his religious beliefs that would not impose an undue hardship on the employer. Summary judgment for the employer was denied. ADA: reasonable accommodation The employer accommodated the employee more than once over the years, and ultimately he refused a reasonable accommodation and refused to suggest a reasonable one. The appellate court found the employer was continuing to provide reasonable accommodation, that the employee was being unreasonable, and that he caused a breakdown in communication in the required ADA interactive process by not supplying the employer with information sufficient to enable it to attempt to accommodate him. The interactive accommodation process has been law for many years, and this case demonstrates that it applies to employees as much as to employers. This is not controlling law in our jurisdiction, but its reasoning could be persuasive here. Whelan v. Teledyne Metalworking Products, No. 06-1460 (3rd Cir., 3/15/07); 2007 U.S. App. LEXIS 6268; 19 Am. Disabilities Cas. (BNA) 116 [enhanced lexis.com version] Edward J. Whelan had worked for Teledyne Metalworking Products for many years. In 1993 he informed his employer that he had a degenerative eye disease; he requested and was given a transfer to an outside sales job. In 1995 he told his employer that his vision had worsened to the extent that he could no longer perform the outside sales position, and he was permitted to work from his home in Pittsburgh as a marketing manager. Financial problems forced Teledyne to consolidate its operations in Grant, Alabama, including its marketing department. Whelan was informed that he would be required to transfer and asked him for information about the accommodations he would need to perform his essential job functions. He repeatedly proposed only one accommodation - that Teledyne permit him to continue working out of his home in Pittsburgh, and ultimately he was fired. On his ADA claim, the jury found in favor of the employer, and the appellate court found that verdict was supported by substantial evidence, noting that an employee who insists on a single accommodation and who is responsible for the breakdown in communication in the interactive accommodation process is not entitled to recover on his ADA claim. Title VII: religion; pretext; nominal damages, $1, attorney fees and costs Claims for religious discrimination have risen and held steady. This case is not controlling law in our jurisdiction, but it is a useful illustration of an interesting aspect of the problem. Ollis v. HearthStone Homes, Inc., No. 06-2852 (8th Cir., 7/27/07); 2007 U.S. App. LEXIS 17895; 89 EPD 42,905; Internet: http://www.ca8.uscourts.gov/opndir/07/07/062852P.pdf [enhanced lexis.com version]. Doyle Ollis, Jr., presented enough evidence for his case to be heard by a jury: fired for complaining of mandatory sessions of "Mind Body Energy" emphasizing such things as which spirituality, reincarnation and "leaving behind all experiences from past lives". He was discharged on a claim of sexual harassment that was found by the appellate court to be a pretext for terminating his employment. Equal Pay Act: sufficient evidence This case is not controlling law in our jurisdiction, but it can provide guidance to the nature and extent of evidence required to support a claim under the EPA Brown v. Fred's Inc., Nos. 06-2503/06-2791 (8th Cir., 7/23/07); 2007 U.S. App. LEXIS 17433, 89 EPD 42,900; Internet: http://www.ca8.uscourts.gov/opndir/07/07/062503P.pdf [enhanced lexis.com version] The jury verdict was affirmed by the appellate court on the ground that a reasonable juror could have found that Donna Brown's employer failed to prove the salary differences between the manager and her male counterparts were based on a factor other than gender. ADEA: double damages affirmed; willful Willful or intentional discrimination can be costly. This is not controlling law in our jurisdiction, but it was an expensive lesson for this employer. Kight v. Auto Zone, Inc., No. 06-3509 (8th Cir., 7/23/07); 2007 U.S. App. LEXIS 17432; 89 EPD 42,904) [enhanced lexis.com version]. Roger Kight, 51, claimed age discrimination, and his award of double damages was affirmed because sufficient evidence supported it, and the jury instructions on willfulness were appropriate. Title VII: punitive damages inappropriate, unclear situation, good faith action by employer. The Eighth Circuit Court of Appeals held that it made no sense to let the jury consider the issue of punitive or exemplary damages and award them in this case where the employer had attempted in good faith to comply with the law. As you will recall, the purpose of punitive or exemplary is to punish or make an example of a defendant who has acted intentionally or recklessly (i.e., in bad faith), which would not be that case of an employer who had acted in good faith. This is not controlling law in our jurisdiction, but the appellate court's reasoning and handling of the fact are persuasive. Dominic v. DeVilbiss Air Power Co., No. 06-3236 (8th Cir., 7/20/07); 2007 U.S. App. LEXIS 17241 [enhanced lexis.com version]. Factually, this case was difficult because it required careful investigation into the credibility of those employees involved. Four investigations, one led by outside counsel, found no substantiation of the harassment and retaliation claims. Downsizing made separating the parties impossible, though t too preventive action that included a warning to the alleged perpetrator, monitored communications between the parties, and conducted harassment prevention training for all salaried employees. ADA: reasonable accommodation, essential function, disability-related tardiness, wheelchair, new no-fault punctuality policy, strictness "Reasonable" is a key word in this case, as is "essential". Though courts are reluctant to second-guess employers, in cases such of this involving inflexibility or lack of common sense, the courts will allow a jury to decide. This is a good case to read all the way through to see how inflexible management was shooting itself in the foot - and probably the wallet. This case is not controlling law in our jurisdiction, but it contains a valuable review of the law, a great degree of common sense, and almost a parody of a company going wrong in a manner the could be an episode in The Office television series. Holly v. Clairson Industries, L.L.C., No. 06-13365 (11th Cir., 7/19/07); 2007 U.S. App. LEXIS 17151; Internet: http://www.ca11.uscourts.gov/opinions/ops/200613365.pdf Tommy Holly had an excellent work record for seventeen years. Confined to a wheelchair after a motorcycle accident, he still managed to be a model employee who not only did his job, but often on his own initiative did more that was required. Late in his career with Clairson, apparently tardiness and absenteeism became a matter of pressing importance for the company. For the purposes of this case, the plant primarily operated as an assembly line production facility. However, after items came off of the assembly line they then went to the finishing operation in which Holly worked. Significant to this case is that strict needs of the assembly process were different from those of the finishing process, and it was new management's failure to recognize that difference that caused it to be in court, and ultimately to find the case going to a jury to decide what was reasonable and essential relating to Tommy Holly. Assembly line production requires workers to be on time, in place, and functioning as a cohesive, efficient unit. Not so for the finishing process, and the appellate court spent a great amount of time and words making that point. Holly's problem with clocking in within the narrow time span allowed by the company with its new no-fault tardiness policy and new high tech recording device was that he often had trouble gaining access to it: tables or materials stacked close to it, fighting the crowds waiting to clocking, etc. These problems were related to being wheelchair-bound. Further, the court noted that in Holly's case, what was at issues often involved only a minute or two. As an excellent, skilled, motivated employee his supervisor and manager had no problem with his slight and occasional tardiness because he made up time during the day. Their testimony also pointed out that the finishing process was unlike the highly integrated assemble line process. Over the years preceding the new no-fault policy things had worked out very well for the employer and the employee. The employer argued that tardiness costs the company money because of forced idleness and lost productivity, though it never demonstrated that was the case on the far more flexible finishing process [and the company may have a very difficult time proving that to a jury]. Title VII: adverse employment action, trivial harms exception, retaliation, implications for Burlington N. & Santa Fe Ry. Co. v. White type claims When the Burlington N. & Santa Fe Ry. Co. v. White decision was published there was concern about it affect on taking necessary corrective action or adverse employment action with problem employees. The White case discussed the defense of the trivial harm exception in discrimination cases. This case is not controlling law in our jurisdiction. It is the first one since White dealing with the issue of trivial harm, and thus may be valuable in determining the nature and extent of what can be done with an employee failing to meet performance standards. A trial level decision carries less weight than an appellate level decision, so proceed carefully. Read it carefully and discuss it with experienced and competent human resources professionals and legal counsel. Devin v. Schwan's Home Service, Inc., No. 06-3551 (8th Cir., 7/6/07); 2007 U.S. App. LEXIS 16017; 100 Fair Empl. Prac. Cas. (BNA) 1713; Internet: http://www.ca8.uscourts.gov/opndir/07/07/063551P.pdf [enhanced lexis.com version]. Schwan's Home Service, Inc. is a frozen/refrigerated food delivery company, and Jessica T. Devin was a delivery route driver. She complained several times of sexual harassment and other discrimination, of stated reluctance by the employer to discuss past harassment claims, of reprimands by supervisors relating among other things to critical comments about insufficient customer solicitations, and of denial of assistance for sales of questionable value. Here is what was involved: 1. A written warning that customer solicitations were insufficient - no negative consequences: no pay or benefits lost (in White the employee had been deprived of thirty-seven days of pay). 2. A Route Builder is an assistance program, but denial of it in this instance was found to have been of no practical value. 3. The employer's decision to focus on future work performance and still allow complaints from the employee was not a materially adverse employment action under the White decision. ADA discrimination, misconduct, behavior, misconduct, lack of knowledge, accommodation, McDonnell Douglas
Title VII: harassment, hostile work environment, severe, pervasive; summary judgment Litigation eventually came down to just the issue of hostile work environment. This is controlling case law in our jurisdiction. EEOC v. PVNF LLC, No. 06-2011, 487 F.3d 790 (10th Cir., 5/14/07); 2007 U.S. App. LEXIS 11276; 100 Fair Empl. Prac. Cas. (BNA) 1043; 89 Empl. Prac. Dec. (CCH) P42,815; Internet: http://www.kscourts.org/ca10/cases/2007/05/06-2011.htm [enhanced lexis.com version]. It is the totality of circumstances that a jury considers in determining if there was a hostile work environment, and this case had an astoundingly pervasive collection of abuse. Title VII, ADEA: sex, age, inconsistent treatment, disparate treatment; business necessity; sufficient documentation; retaliation This female bank executive was fired for clear violations of written company policy and for taking money for her own use. This is controlling case law in our jurisdiction Timmerman v. U.S. Bank, N.A., 483 F.3d 1106 (10th Cir., 4/27/07); 2007 U.S. App. LEXIS 9583; 89 Empl. Prac. Dec. (CCH) P42,813; Internet: http://www.kscourts.org/ca10/cases/2007/04/06-1185.htm [enhanced lexis.com version]. Extensive sufficient documentation proved that the bank had a valid business reason for firing this executive. Her disparate impact and inconsistent treatment claims failed for lack of valid statistical proof and failure to prove her treatment was discriminatory in comparison with other situations. Her retaliation claim was based on the counterclaim filed by the bank for the money she took from it, and the appellate court affirmed the judgment in favor of the bank. Title VII: communication, accent, business necessity; discrimination, national origin, comment, direct proof Comments by the local human resources manager of a national employer were allowed as direct evidence of discrimination against a Hispanic employee who spoke fluent English, but with an accent. The key question is whether the employer's concern was based on a valid business necessity for clear communication or for discriminatory reasons. For example, there might be a difference between brief interactions with customers not used to the accent as compared with regular communications with subordinates who would be accustomed to the accent. One of the aims of Title VII is to break down stereotypes, biases and prejudices. This is not controlling law in our jurisdiction, but it is a useful example. Gold v. FedEx Freight East, Inc. (In re Rodriguez), No. 06-1988, 487 F.3d 1001 (6th Cir., 7/27/07); 2007 U.S. App. LEXIS 15244; 2007 FED App. 0246P (6th Cir.); 100 Fair Empl. Prac. Cas. (BNA) 1475; Internet: http://www.ca6.uscourts.gov/opinions.pdf/07a0246p-06.pdf [enhanced lexis.com version]. Jose Antonio Rodriguez sought promotion to a supervisor position, and in that process the local human resources manager commented about her concern over his accent and its affect on his ability to rise in the company, that is, how strong was his accent and did it hamper clear communication? The implication of that comment is that it was held to be possible direct evidence of discrimination based on national origin that would require the employer to demonstrate that it had a legitimate business reason for such a concern. USERRA: burden of proof This case states a new and more difficult burden of proof in Uniformed Services Employment and Reemployment Rights matters, one more difficult than McDonnell Douglas. And as a reminder, be sure that if you are basing a corrective action or an adverse employment action on a violation of company policy that: - the policy is written, - was distributed and acknowledged, - the conduct alleged was a violation policy, and - other employees who have violated the policy have been similarly situated and treated.
Internet: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=06-1082.01A [enhanced lexis.com version]. Carlos Velazquez-Garcia was a shift supervisor and also a Marine Corps reservist. Timing of his firing was critical because coincidentally with his return from duty he accused of violating company policy of conducting personal business. USERRA prohibits discrimination against employees because of their military service. The appellate court stated a new test of discrimination based on two factors: 1. An employee must initially show that his military service was a motivating factor in his termination, and 2. The employer must prove that the firing [or other adverse employment action] would have occurred despite the employee's military service.
1. An employee must make a threshold showing of discrimination. 2. Next, the employer must show a legitimate, nondiscriminatory reason for taking the action it did. 3. Finally, the burden shifts back to the employee to show that the employer's stated reason was a pretext for discrimination. The difference is significant because under this new USERRA test the employee doesn't have the burden of showing that the employer's stated reason was a pretext. Rather, the employer now must show that its stated reason wasn't a pretext and the termination would have occurred even if the employee hadn't served in the military.] FMLA: interaction of paid and unpaid leave policies and federal regulations This case is not controlling law in our jurisdiction. However, it contains important reasoning. Repa v. Roadway Express Inc., 477 F.3d 938, (7th Cir., 2007) [enhanced lexis.com version]. [Note: Because of the highly technical and specific nature of this case, it will not be briefed and practitioners are encouraged to read the entire decision.] ADA: attorney fee, no monetary award, order to destroy test results An employee must gain something of value as a result of discrimination litigation in order for attorney fees to be awarded. The court ordered the employer to destroy psychological test results previously ruled inappropriate under the Americans with Disabilities Act [See the previous case brief of the Karraker case in this database], and that sufficient to qualify for an attorney fee award. This Seventh Circuit case is not controlling law in our jurisdiction, but its reasoning might be persuasive here. Karraker v. Rent-A-Center, No. 06-2617 (7th Cir., 7/9/07); 2007 U.S. App. LEXIS 16184 [enhanced lexis.com version]. RAC's managerial test included a Multiphasic Personality Inventory (MMPI), which earlier had been held inappropriate under the ADA. Plaintiffs now sued to have the test results destroyed, and, which ultimately was ordered by the court, along with a $1 nominal damages award. The 1992 United States Supreme Court opinion in Farrar v. Hobby, 506 U.S. 103, had held that $1 In nominal damages was sufficient to support an award of attorney fees: [A] plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff. In this Karraker case the request for relief was for an injunction mandating the destruction of psychological test results, and the Seventh Circuit Court of Appeals found that to be at least worth $1, and therefore a sifficiennt basis for an award of an attorney fee. [Note: The case did not implicitly rule on the reasonableness of the award.] ADA: reasonable accommodation, wheelchair, interactive process to determine accommodation Just a reminder of previous case law: when a disability is apparent, the employee need not necessarily request an accommodation, and the process of exploring whether an accommodation is reasonable must be interactive. Equal Employment Opportunity Commission v. Convergys Customer Management Group, Inc., No. 06-2874, (8th Cir., 7/6/07); 2007 U.S. App. LEXIS 16019; available on the Internet: http://www.ca8.uscourts.gov/opndir/07/07/062874P.pdf [enhanced lexis.com version]. This case is not controlling law in our jurisdiction, but the reasoning has been applied here. FMLA: waiver, court of DOL approval required This decision from outside of our jurisdiction points of something that we may need to pay attention to: a Department of Labor (DOL) regulation interpreting the Family and Medical Leave Act (FMLA) prohibits employees from waiving FMLA rights, even in a post-dispute settlement, unless a court or the DOL approves the waiver. Discussing it with your employment law attorney would be a good idea. This Fourth Circuit Court of Appeals case is not controlling law in our jurisdiction. Taylor v. Progress Energy, No. 04-1525 (4th Cir., 7/3/07); 2007 U.S. App. LEXIS 15846; available on the Internet at: http://pacer.ca4.uscourts.gov/opinion.pdf/041525.P.pdf [enhanced lexis.com version]. DOL regulation §220(d), provides: "Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA." 29 C.F.R. 825.220(d) [annotated lexis.com version]. The Fourth Circuit Court of Appeals held that this regulation means that employees may not waive their FMLA rights without either DOL or court approval. Essentially, its reasoning was that the regulation is clear and, like the FLSA, the FMLA provides certain minimum standards and rights that must be upheld in order not to undermine the intent of Congress. Title VII: termination: settlement agreement, rehire, legitimate non-discriminatory reason; summary judgment, McDonnell Douglas Should a termination agreement include a provision declaring the employee ineligible for rehiring? It depends on how that agreement is worded and relied upon, and in part this decision also depended on the trial court procedural rules and the employee's failure to adequately use them. Lesson: In these situations, be careful what you say and how you say it: relying on the termination settlement prohibiting rehire is okay, but referring to a former discrimination claim or lawsuit would be an error because it could be the basis for the employee of pretext allegation under the McDonnell Douglas discrimination evidentiary rules (see numerous previous case briefs here setting forth those elements of proof). As you will see, the response from the company's corporate office focused on (1) her insufficient sales performance and (2) the terms of her settlement agreement barring her from reemployment - not her prior claim of discrimination. This case is controlling law in our jurisdiction Jencks v. Modern Woodmen of America, No. 05-5130, 479 F.3d 1261 (10th Cir, 3/19/07); 2007 U.S. App. LEXIS 6302; 89 Empl. Prac. Dec. (CCH) P42,740; available on the Internet at: http://www.kscourts.org/ca10/cases/2007/03/05-5130.htm [enhanced lexis.com version]. The appellate court summarized the case [partially edited]: MWA, an insurance company, employed Jencks in 1990 as a district manager. * * * In 1994, she was terminated from that position and offered a contract as a district representative, a sales agent position. She accepted the demotion. Due to on-going problems with her production, she was terminated from the district representative position but was offered * * * a district agent contract. This, she did not accept. She filed a claim with the EEOC, alleging discriminatory demotion (from district manager to district representative) and discharge (from the district representative position). She then sued MWA, adding claims of sexual harassment, retaliation and racial discrimination. The court granted summary judgment as to all claims relative to Jencks' termination because the district representative position was that of an independent contractor, not an employee. The claim of sexual discrimination in the demotion from district manager to district representative proceeded to trial. Jencks prevailed and the court ordered her reinstated to the district manager position. Jencks and MWA then entered into a Mutual, General, and Complete Release (the "Settlement Agreement") in which, among other things, Jencks waived any entitlement to re-employment or reinstatement with MWA. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - * * * As district manager, Jencks was an employee of MWA. However, all other positions involved in this case are independent contractor positions. The parties are careful to distinguish these positions. MWA in particular is very precise in referring to Jencks' relationship with it - both in the past and in this case - as an "affiliation" and not employment. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - A few years after her termination MWA made a mass mailing to insurance agents in her area soliciting applications for the position of sales agent. Jencks applied. The state manager and her former supervisor replied that because of her settlement agreement and "history" with the company the ultimate hiring decision would have to be made by the corporate office. Corporate's letter sent to her a few days later stated she wasn't eligible for two reasons: (1) of her insufficient sales results when she previously worked for the company and (2) the terms of her settlement agreement barred her from reemployment. Jencks sued for discrimination and also claimed retaliation for her prior suit against the company. MWA contended it was not retaliating, but rather was enforcing its rights under the termination settlement agreement. The summary judgment granted in favor of the employer by the trial court was affirmed. One reason was that the employee had failed to adequately respond to the employer's motion for summary judgment. Union, Public sector: agency-shop agreements An "agency-shop" agreement requires a union to obtain permission from those paying union agency fees before using their money for political purposes. Nonunion employees pay fees to a union whose collective bargaining activities have gained benefits for a group of employees. How much nonunion employees members pay in comparison to union members depends on a "fair share" accounting formula that estimates how much of a union's activities resulted in employment benefits and how much of its activities were for other purposes, such as politics, ideology, etc. Refer to these cases previously briefed in this database: A "fair-share" fee is charged by unions on non-union members for the proportionate share of the cost of negotiating and administering the collective bargaining agreement and adjusting grievances and disputes of bargaining unit employees. Essentially, it is the charge assessed on non-union employees for the benefits they obtain from the union's efforts on wages and terms of employment. Wessel v. City of Albuquerque, CIV 00-0065 LH/KBM (D.N.M. Mem. Op., July 27, 2004); Harrington v. City of Albuquerque, CIV 01-0531 LH/WDS (D.N.M. Mem. Op., July 27, 2004). When public sector employees are involved, First Amendment (free speech) issues arise because individual employees may be forced to contribute money to a union as a condition of their employment. This case is controlling law in our jurisdiction, and it holds that states do not violate the First Amendment of the United States Constitution by requiring public-sector unions to obtain authorization from nonmember agency fees payers prior to using nonmembers' money for political purposes. Davenport v. Washington Education Association, Nos. 05-1589, -1657, ____ U.S. ____ (USSC, 6/14/07); 2007 U.S. LEXIS 7722 [enhanced lexis.com version]. In 1992 voters in the state of Washington voted in favor of Initiative 134, a political campaign reform initiative that, among other things, capped political contribution and required annual, written authorization from workers before deducting funds from their paychecks to be used for political purposes. Legislation resulting from that initiative, know as "Section 760", provided in pertinent part that: A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual. (Wash. Rev. Code § 42.17.760) Extensive litigation followed challenging how nonunion employees could notify the WEA of their request to receive a rebate of union dues deducted from their paychecks for purposes other than for the union's efforts on wages and terms of employment. The United States Supreme Court held that it was upholding Section 760 only as it applied to public sector unions [thereby leaving open the issue of how private sector unions might be affected]. It ruled that Section 760 did not violate the First Amendment of the United States Constitution, and rejected the WEA's contention that it limited the union's use of money in specifically finding that Section 760 simply is "a condition placed upon the union's extraordinary state entitlement to acquire and spend other people's money." Title VII: racial discrimination, prompt remedial action Recognizing an error and promptly moving to investigate and correct the situation often can save an employer form liability. This case is not controlling law in our jurisdiction, but it illustrates that courts will recognize reasonable actions by an employer to correct a situation and not find an employer liable for an initially erroneous act. Fair v. Norris, No. 06-1580, 480 F.3d 865 (8th Cir., 3/27/07); 2007 U.S. App. LEXIS 7059; 100 Fair Empl. Prac. Cas. (BNA) 517; 89 Empl. Prac. Dec. (CCH) P42,752 [enhanced lexis.com version]. Viola Fair, an African-American employee of the Arkansas Department of Correction, applied for a position at an entry-level salary. In the screening process, an ADC employee erroneously denied her points for her college degree because it was considered not to qualify for extra points, and that kept Fair out of the top three applicant positions. Fair filed an internal grievance based on racial discrimination, and she asked her employer to remedy the problem by hiring her at the maximum pay level, plus retroactive pay and benefits. The employer's investigation disclosed the error, and after about three weeks met with Fair, explained the error and offered her the position at the entry-level rate of pay retroactive to the date when she would have been hired. Fair rejected that and sued. Ultimately, the courts found it was not necessary to decide if she had been discriminated against because she had not been rejected from the position [partially edited]: We need not reach the question of pretext in this case, because Fair was not ultimately rejected for the promotion. Therefore, we find that Fair failed to present a prima facie case of discrimination. See Ross v. Kansas City Power & Light Co., 293 F.3d 1041, 1046 (8th Cir. 2002) (listing the four elements of a prima facie case for the failure to promote under Title VII, one of which is a showing that the plaintiff was rejected for the position she sought). It is true that the ADC initially failed to hire Fair for the position she sought. Had the ADC not taken corrective action and offered Fair the job after reviewing her grievance, she may have been able to present a prima facie case of discrimination. Once the ADC made its subsequent * * * offer of the promotion with retroactive pay and benefits, however, it had no longer rejected Fair for the promotion. The basis for Fair's initial grievance was the ADC's failure to select her for the position; the ADC acted upon this grievance, discovered that it had erroneously rejected her for the promotion, and attempted to right its prior wrong by offering her the position she wanted. Even if there were flaws in the manner in which the ADC handled Fair's grievance, its ultimate decision to offer the promotion to Fair is the kind of extrajudicial corrective action envisioned by Congress when it passed Title VII. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998) (noting "Congress' intention to promote conciliation rather than litigation in the Title VII context"). As for the three weeks period during which the employer was investigating and deciding what to do, that was found to be a minor inconvenience not compensable under the law. FLSA: health aides and other companions employed by third parties, overtime exemption inapplicable; deference by courts to agency interpretation A longstanding Department of Labor regulation interpretation was upheld by the United States Supreme Court on the grounds that courts generally defer to an administrative agency's interpretations of its own regulations unless that interpretation is "plainly erroneous or inconsistent with" the regulations in question. This is controlling law in our jurisdiction. Long Island Care at Home Ltd. v. Coke, No. 06-593, 551 U.S. 158 (June 11, 2007); http://www.supremecourtus.gov/opinions/06pdf/06-593.pdf [enhanced lexis.com version]. Evelyn Coke was employed by Long Island Care at Home as a "home healthcare attendant" for the elderly. She sued her employer, alleging rights to overtime and minimum wags under the Fair Labor Standards Act (FLSA). The federal district trial court ruled in favor of her employer, holding that she fell under the FLSA's exemption for employees engaged in "companionship services", thereby giving deference to the Department of Labor's (DOL) regulation 29 CFR Section 552.109(a) exempting employees in "companionship services" who are "employed by an employer or agency other than the family or household using their services." trial court, the U.S. Court of Appeals for the Second Circuit ruled that the regulation unenforceable because it was a misinterpretation of the statute. It declined to give the DOL's regulation any of the judicial deference normally due to administrative regulations because the regulation was under a section titled "Interpretations." Regulations that are interpretive rather than legislative are not entitled to deference. The Court of Appeals also ruled that the regulation was "unpersuasive in the context of the entire statutory and regulatory scheme," and thus not entitled to deference. However, the United States Supreme Court reversed the appellate court, stating that the DOL's regulation was within the scope of its of rulemaking authority delegated by Congress in the FLSA and that "an agency's interpretation of its own regulations is "controlling" unless 'plainly erroneous or inconsistent with' the regulations being interpreted." Where an agency rule sets forth important individual rights and duties, where the agency focuses fully and directly upon the issue, where the agency uses full notice-and-comment procedures to promulgate a rule, where the resulting rule falls within the statutory grant of authority, and where the rule itself is reasonable, then a court ordinarily assumes that Congress intended it to defer to the agency's determination. Title IV, ERISA: merger does not terminate plan, bankruptcy, defined plan, For those of you practicing in the area of benefits, check this case for the specific details: Beck, Liquidating Trustee of Estates of Crown Vantage, Inc., et al. v. PACE International Union, et al., No. 05-1448, 551 U.S. 96 (6/11/07), 2007 U.S. LEXIS 7716 [enhanced lexis.com version]. USERRA: hostile work environment. Over the years we have seen courts allowing a liability theory from one anti-discrimination act to be applied in another anti-discrimination act. A federal district court in the Kentucky recently allowed the hostile work environment liability theory developed in Title VII, then applied in the ADA, to be applied in USERRA: Steenken v. Campbell County, No. 04-224-DLB, (U.S.E.D, KY, 3/15/07) [enhanced lexis.com version]. Title VII: "reverse" religious discrimination; evidence, McDonnell Douglas burden-shifting test, pretext; summary judgment for employer reversed Claims of reverse religious discrimination are rare. However, this case held that when there is an issue of fact about whether an employer's reason for an adverse employment was a pretext to cover up discrimination, the employee may present either direct evidence employer's discriminatory motive or indirect evidence that undermines the credibility of the employer's articulated reasons [pretext]: - Direct evidence stands on its own to prove an alleged fact, such as testimony by a witness about what that witness personally saw or heard or did, e.g., testimony of a witness who says he saw a defendant pointing a gun at a victim during a robbery. - Indirect evidence of discrimination or retaliation may be proved by the McDonnell Douglas: 1. An employee must first present a prima facie case [basically legally sufficient] of discrimination. 2. If the employee does so, the burden then shifts to the employer to produce a legitimate, nondiscriminatory justification for taking the disputed employment action. 3. If the employer satisfies this burden, the employee then must provide evidence that the employer's proffered reasons are merely a pretext for discrimination. This case is not controlling law in our jurisdiction, but it illustrates an important evidentiary point that may be available for trial attorneys. Also, it is yet another case demonstrating the need to document objective criteria that were the basis for a promotion, especially when qualifications of competing employees are significantly different. Noyes v. Kelly Services, No. 04-17050 (9th Cir. May 29, 2007); 2007 U.S. App. LEXIS 12356 [enhanced lexis.com version]. The appellate court stated the facts [partially edited]: Lynn Noyes alleges that a supervisory employee at her former employer, Kelly Services, Inc. ("Kelly Services"), was a member of a small religious group, the Fellowship of Friends ("Fellowship"), and * * * that he repeatedly favored and promoted other Fellowship members. Noyes claims that she was passed over for a promotion because she does not adhere to the religious beliefs of the Fellowship, and that a Fellowship member was promoted instead. She appeals the district court's order granting summary judgment in favor of Kelly Services on her Title VII disparate treatment claim and dismissing her state law claims for lack of subject matter jurisdiction. She worked in the computer software and multimedia department from October 1994 until she was laid off in May 2004. In 2001 the position of Software Development Manager opened up and she applied for it. No candidates from outside of the company were considered. The senior manager responsible for filling that position belonged to a religious group called the Fellowship of Friends. Of the several candidates, only one was a member of the Fellowship. The senior manager stated during the screening process that Noyes was not interested in the position, which she stated was false. The employee offered the promotion was a Fellowship member, and the senior manager said he was concerned that it might be considered favoritism. Noyes, an MBA, had worked for the company for six years longer than the employee promoted, and not an MBA, and she pointed out that the senior member had given preferential treatment to the promoted employee, plus paying him a higher salary because of his "lifestyle. The main issue on appeal was whether to reverse the summary judgment in favor of the employer i.e., did Noyes have sufficient evidence of discrimination to entitle her to a jury trial? Applying the McDonnell Douglas test, the appellate court found that (1) she had established a prima facie case of discrimination, (2) the employer had offered an apparently legitimate, nondiscriminatory justification for taking the disputed employment action. That left the issue of (3) whether the employer's reason was a pretext, and the appellate court found that the summary judgment in favor of the employer should be reversed because the plaintiff had established that there was a material [triable] issue of fact for a jury. Her best evidence was the senior manager's statement that she was not interested in the position, his past favoring of the promoted employee, and the better qualifications of Noyes compared with the man who got the job. FCRA: Fair Credit Reporting Act, willful violation, intentional or reckless conduct required For a violation of the Fair Credit Reporting Act to be "willful", the United States Supreme Court has ruled that it must have been committed "knowing and recklessly". This case the controversy was over denial of insurance coverage. In the employment context, the Act would cover checking on credit of employees in the background check process. Safeco Insurance Company of America v. Burr, Nos. 06-84 and 06-100 (USSC 6/4/07); 551 U.S. 47, 2007 U.S. LEXIS 6963 [enhanced lexis.com version], decided together with No. 06-100, GEICO General Insurance Co. et al. v. Edo, also on certiorari to the same court Under the Act: - if a violation is willful, the damages allowed by statute are: - actual damages sustained by the employee, - statutory damages ranging from $100 to $1,000, - punitive damages, plus - attorney fees and court costs. - if a violation is willful, the damages allowed by statute are: - actual damages sustained by the employee, - attorney fees and court costs.
FLSA: going and coming, Portal to Portal Pay When is a worker paid for commuting costs? Under the FLSA, the question is whether an activity is "integral and indispensable part" of the employees' principal work, and to determine that the factors to be considered include whether the activity: - is required by the employer, - is necessary for the employee to perform his or her duties, and - primarily benefits the employer. Bonilla v. Baker Concrete Construction, No. 06-12515 (11th Cir., 5/30/07); 2007 U.S. App. LEXIS 12431 [enhanced lexis.com version]. The court stated these critical facts [partially edited]: Appellants were construction workers employed by appellee, a subcontractor for the lead contractor Turner-Austin, for the North Terminal project at Miami International Airport ("MIA project") from approximately November 2001 until March 2003. * * * In order to reach their work sites inside the airport, appellants were required to pass through a single security checkpoint to the tarmac and then ride authorized buses or vans to their particular work site. Because FAA regulations prohibit unauthorized vehicles in the secured tarmac area, Turner-Austin provided free buses or vans to transport appellants and other workers from the free employee parking lot to the security gate and on through to each of the separate work sites. Appellants were not required to park at the employee lot, but they were required to enter the facility through the single authorized security entrance and then ride the contractors' authorized vehicles to the various work sites. The security gate was near other public parking lots and a public bus stop; appellants were free to meet the authorized vehicle at the security gate rather than at the employee parking lot several miles away. Riding Turner-Austin's authorized vehicles was the only way for the workers to access the construction sites after passing through the security gate. The employees did not perform any labor while waiting for or riding the vehicles, either at the beginning or end of each work [*3] day. No instructions were given by the supervisors nor were any tools carried on the buses because the tools were kept at the work sites. Appellants signed in at the work site and then received their instructions for the day. At the end of the day, appellants would sign out before boarding the bus to leave the airport through the security gate. Although appellants claim that appellee or Turner-Austin supervisors did work on the vehicles and at the security gate (head counts and general supervision), appellants do not claim that they had any responsibilities or duties before arriving at their respective sites other than to show their identification at the security gate and carry their personal safety equipment, including safety goggles, a hard hat, and work boots. Appellants point to the contractors' agreement with the airport, the Construction Related Requirements ("CRR"), that requires all employees to display their personal safety equipment as a condition of being transported to the job site. Appellee disputes appellants' claim that there was any evidence that employees were required to carry their personal safety equipment on the bus. Appellants were not paid by appellee for the * * * time spent riding the buses or vans. There were no allegations that appellee, Turner-Austin, or any representative of appellee ever discussed with appellants whether they would be paid for the time waiting for or riding the authorized buses, nor were there any requests by appellants to be paid for this time. Based on the three factors applied to these facts, Portal to Portal Pay was denied. Title VII: statute of limitations, time-barred claim, wage claim, pay discrimination, discriminatory intent, disparate impact When must an employee make a wage discrimination claim? That depends on the circumstances. Here, the United States Supreme Court held that the employee's wage discrimination claim was limited by the requirement that she file within 180 days of the discriminatory act (300 days in NM and some other states). Basically, this case favors employers. Because the nature of the discrimination makes the critical difference here, attorneys will need to read the entire case very carefully, and clients should seriously consider having this opinion interpreted for them by their legal counsel. Many hairs are split here, and the legal distinctions may seem elusive, so a great deal of legal expertise will be involved in understanding how one situation may differ from another. This case is controlling law in our jurisdiction. Ledbetter v. The Goodyear Tire & Rubber Company, Inc., No. 05-1074 (USSC, 5/29/07); 550 U.S. 618, 2007 U.S. LEXIS 6295; http://www.supremecourtus.gov/opinions/06pdf/05-1074.pdf [enhanced lexis.com version]. The United States Supreme Court, Justice Alito writing for the majority, quoted the legal issue stated by Lilly M. Ledbetter, the employee claiming gender discrimination [partially edited]: Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that * * * occurred outside the limitations period. * * * Title VII of the Civil Rights Act of 1964 makes it an "unlawful employment practice" to discriminate "against any individual with respect to his compensation . . . because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). An individual wishing to challenge an employment practice under this provision must first file a charge with the EEOC. § 2000e-5(e)(1). Such a charge must be filed within a specified period (either 180 or 300 days, depending on the State) "after the alleged unlawful employment practice occurred," ibid., and if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in court, § 2000e-5(f)(1). In addressing the issue * * * whether an EEOC charge was filed on time, we have stressed the need to identify with care the specific employment practice that is at issue. Morgan, 536 U.S., at 110-111, 122 S. Ct. 2061, 153 L. Ed. 2d 106. Lilly M. Ledbetter was a salaried worker for Goodyear from 1979 to 1998, and during that time salaried employees were granted raises, or denied them, based on how their supervisors evaluated their performance. Lilly apparently did not learn of her initial lower pay status until close to the time she was to leave her employment with Goodyear [and her initial status affected all of her subsequent raises]. Her wage discrimination claim made a number of allegations under various legal theories, two of which were a Title VII pay discrimination claim and an Equal Pay Act claim. In essence, she asserted that during her Goodyear employment that [partially edited]: . . .employment several supervisors had given her poor evaluations because of her sex, that as a result of these evaluations her pay was not increased as much * * * as it would have been if she had been evaluated fairly, and that these past pay decisions continued to affect the amount of her pay throughout her employment. * * * [A] disparate-treatment challenge focuses exclusively on the intent of the employer"). However, Ledbetter does not assert that the relevant Goodyear decisionmakers acted with actual discriminatory intent either when they issued her checks during the EEOC charging period or when they denied her a raise in 1998. Rather, she argues that the paychecks were unlawful because they would have been larger if she had been evaluated in a nondiscriminatory manner prior to the EEOC charging period. Having framed the issue this way, the majority concluded that her failure to claim discrimination at the time she alleged the discrimination occurred would bar her claim for wages back beyond the 180 day limitation period. The court noted that a disparate-treatment claim requires proof of two elements: (1) an employment practice and a discriminatory intent by the employer. Ledbetter argued that in Bazemore v. Friday, 478 U.S. 385, 106 S. Ct. 3000, 92 L. Ed. 2d 315 (1986) (per curiam) [means the entire court] [enhanced lexis.com version] would apply to her situation. But Bazemore involved a government agency using a scheme in which employees had originally been segregated into "a white branch" and "a 'Negro branch'" in which the Negroes received less pay. In 1965 the two branches were merged, and after Title VII was amended in 1972 to cover public sector employees, the Negro employees sued on the basis that the pay disparities attributable to the original discriminatory old pay scale persisted and affected their subsequent raises. That discrimination claim was timely made. Thus, Bazemore stands for the proposition that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. But a new Title VII violation does not occur and a new charging period is not triggered when an employer issues paychecks pursuant to a system that is "facially nondiscriminatory and neutrally applied." [The term "facially" means that something is in plain, obvious terms, i.e., on its face, either discriminatory or not.] Justice Alito continued [partially edited]: Contrary to the dissent's assertion, * * * what Ledbetter alleged was not a single wrong consisting of a succession of acts. Instead, she alleged a series of discrete discriminatory acts * * * (arguing that payment of each paycheck constituted a separate violation of Title VII), each of which was independently identifiable and actionable, and [the Morgan[case] is perfectly clear that when an employee alleges "serial violations," i.e., a series of actionable wrongs, a timely EEOC charge must be filed with respect to each discrete alleged violation. [Note: As you may have concluded by now, this is an intricate case to analyze. However, basically the lesson appears to be that employees must be alert and aware of the terms and conditions of their employment in order to timely assert their rights. Much of this is discussed in the dissent by Justice Ginsburg. Also, this decision may be an example of the kinds of decisions one might anticipate coming from this court, that is, technical and involving close reading and interpretation of former law in a manner perhaps not seen for many years, plus a policy to not decide any more than is necessary to conclude the matter.] ADA: not regarded as disabled, class of jobs Merely being unable to perform a specific job is not enough to qualify for ADA coverage; the inability must be for a class of jobs. This case is controlling law in our jurisdiction. Equal Employment Opportunity Commission v. Burlington Northern and Santa Fe Railway Company, No. 06-6074 (10th Cir., 11/29/06); 211 Fed. Appx. 682; 2006 U.S. App. LEXIS 29526; 18 Am. Disabilities Cas. (BNA) 1427 [enhanced lexis.com version]. This opinion not sufficiently instructive enough to be briefed. Title VII: discrimination, disparate treatment, not similarly situated, different degrees of fault, dishonesty valid business reason for firing, retaliation, close timing Circumstances differed to a legally significant degree to support summary judgment in favor of the employer's firing of a female officer but not the male office in a jail suicide incident. McGowan v. City of Eufala, No. 04-7083, 472 F.3d 736 (10th Cir., 12/19/96); 2006 U.S. App. LEXIS 31277; 99 Fair Empl. Prac. Cas. (BNA) 747 [enhanced lexis.com version]. Jean McGowan had been with the city since 1983. In 2003 a prisoner committed suicide by hanging himself with his belt while in the jail on her watch. The male officer who arrested the prisoner failed to take his belt. This was a violation of written jail policy. As the jailer on duty, McGowan was to visually inspect the prisoner and his cell to ensure his safety. Both officers were suspended for thirty day and placed on probation. Later the city conducted an investigation over a period of three months, and it discovered that not only had McGowan not only failed to make the required inspections, she had falsified the logs. A complicating factor was that in 1999 the chief of police had requested McGowan's assistance in an EEOC investigation of a discrimination claim by an African-American officer, and she had refused. She claimed that because of her refusal, the chief and other officers retaliated against her and that her son and his girlfriend were harassed by the department. Additionally, she claimed she had been improperly denied her request to transfer to the day shift despite her seniority. One day after her testimony in the 1999 discrimination case, she was fired [thereby creating an interesting timing issue]. The city's reason for firing her was because of her great amount of culpability in the suicide incident, and her dishonesty about it. This was sorted out by the appellate court as follows: Harassment: This was legally insufficient because it was directed at her son and his girlfriend rather than at her. Termination: - Causal connection: There was a sufficient adverse employment action to support a discrimination claim. The timing was also a significant factor in showing a possible link between her actions in the 1999 discrimination claim and her firing, and a jury might be able to infer a causal connection based on that. - Disparate treatment/similarly situated employees: The court found significant differences between McGowan's culpability and that of the arresting officer in the suicide incident: Dawson violated police policy by failing to remove the prisoner's belt and was honest about that omission, whereas McGowan violated state law requiring visual inspections, she was not, plus she was dishonest. Thus, the appellate court decided that the critical cause for her termination was based on a legitimate and non-discriminatory reason: the suicide occurred on her watch and she was dishonest about it. Title VII: racial discrimination, hostile work environment, pervasive behavior One is issue in a hostile work environment discrimination harassment case is whether the behavior was severe or pervasive. Here is a gritty and graphic example. This case is controlling law in our jurisdiction. Herrera v. Lufkin Industries, Inc., No. 04-8089, 474 F.3d 657 (10th Cir., 1/4/07); 2007 U.S. App. LEXIS 421; 99 Fair Empl. Prac. Cas. (BNA) 809; 89 Empl. Prac. Dec. (CCH) P42,657 [enhanced lexis.com version]. The appellate court found the following behavior and incidents to demonstrate what is persuasive, and it was the basis of its ruling on that issue [partially edited]: Herrera presented evidence of several discrete incidents of racial harassment occurring during the four years that Buddy Moore oversaw Lufkin's Casper service center while Herrera worked there. Herrera testified that when he first met Moore, in 1997, Moore refused to shake Herrera's hand. And in 1999, Moore sent Cunningham some candy with a note attached indicating it was "Mexican peanut brittle." Moore directed that Cunningham give this candy to Herrera. Cunningham did so, including Moore's note. Herrera was offended. Herrera sought advice from an attorney about these incidents and complained to Lufkin's human resources attorney, to no avail. Also in 1999, Moore told Cunningham to have Herrera talk to a certain customer because that customer was Mexican. Cunningham relayed this message to Herrera. On another occasion in 1999, Moore himself told Herrera to go see another customer because that customer "was from San Antonio . . . so he likes Mexicans." In addition, Moore once said directly to Herrera, "Spanish lover, come here." On yet another occasion, Moore told Cunningham to tell Herrera not to "Mexicanize" Herrera's new company truck. Carolyn Coleman, the Casper service center's * * * secretary, translated "Mexicanize" to mean "lots of chrome, you know, dice hanging off the mirror." Moore also wanted Herrera to remove a cactus from atop the truck's antenna. Moore gave this directive several times in late 2000 and again in early 2001. Cunningham relayed these comments to Herrera. In addition to these discrete incidents, however, Herrera also asserted evidence of other ongoing harassment occurring during this entire four-year time period. Moore would refer to Herrera as "the Mexican" or "the fucking Mexican" whenever Moore would speak to Herrera's supervisor, Cunningham, and sometimes when Moore spoke to the Casper service center's secretary, Carolyn Coleman, and the warehouse manager, Bill Bryant. This did not happen just once or twice. Rather, there is evidence that Moore made such comments every two to three days. * * * Although Cunningham did not tell Herrera about these comments every time Moore made such references to Herrera, both Cunningham and Coleman did occasionally tell Herrera about them. * * * Further, in light of Moore's racially charged comments, Cunningham specifically warned Herrera to be wary of Moore because he was a bigot. FMLA: interference, retaliation Are claims for interference and for retaliation mutually exclusive? An interference claim would seem to be based on conduct prior to FMLA leave in an effort to deny or prevent it, whereas a retaliation claim would seem to be based on conduct afterwards. However, in this case both types of claims were allowed to be asserted. Do note that the employer's timing was uncomfortably close and probably could have been better. In the end, the employer won the case because it proved a solid case of the employee's deficient performance to have been the actual reason for terminating her employment. This case is controlling law in this jurisdiction. Campbell v. Gambro Healthcare, Inc., No. 06-3062, 478 F.3d 1282 (10th Cir., 3/9/07); 2007 U.S. App. LEXIS 5545; 154 Lab. Cas. (CCH) P35,262; 89 Empl. Prac. Dec. (CCH) P42,746; 12 Wage & Hour Cas. 2d (BNA) 677. [enhanced lexis.com version]. [Also seethe illustrative (not controlling law) case of Bryant v. Dollar General, No. 07-5006, 538 F.3d 394 (6th Cir., 8/15/08); 2008 U.S. App. LEXIS 17310; 2008 FED App. 0294P (6th Cir.); 156 Lab. Cas. (CCH) P35,467; 91 Empl. Prac. Dec. (CCH) P43,306; 13 Wage & Hour Cas. 2d (BNA) 1697; Internet: http://www.ca6.uscourts.gov/opinions.pdf/08a0294p-06.pdf. [enhanced lexis.com version]] The appellate court stated [partially edited and reformatted for clarity]: To establish an interference claim, Campbell must show: (1) that [s]he was entitled to FMLA leave, (2) that some adverse action by the employer interfered with her right to take FMLA leave, and (3) that the employer's action was related to the exercise or attempted exercise of her FMLA rights. To make out a prima facie retaliation claim, Campbell must show that: (1) she engaged in a protected activity; (2) Gambro took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action. We have characterized the showing required to satisfy the third prong under a retaliation theory to be a showing of bad intent or "retaliatory motive" on the part of the employer. * * * Notably, we interpret retaliation claims under the burden-shifting architecture of McDonnell Douglas Corp. v. Green, whereas the employer bears the burden of proof on the third element of an interference claim once the plaintiff has shown her FMLA leave was interfered with. * * * Due to this difference in where the burden lies with respect to the third element of each theory, it is not unusual for a plaintiff to pursue an interference theory while the defendant argues * * * that the evidence may only be analyzed under a retaliation theory. Eunice Campbell was a Patient Care Technician (PTC) for Gambro Healthcare, Inc. (Gambro), at its Atchison clinic, a small facility with only five employees that provided end-stage renal dialysis and related services. Campbell cared for patient and also served as the clinic's inventory technician, secretary, and was responsible for maintaining patient charts and data. When the Atchison clinic began to experience a steady decline in the number of patients, Gambro decided to reduce PCT weekly hours to twenty-four. Though it stayed open, profitability decreased greatly. Campbell slipped and fell at home, injuring her back and also aggravating it pre-existing degenerative condition. Company policy required employees to notify the employer of anticipated absences, and she missed her next shift. FMLA leave was requested by her for back surgery, which was approved. The clinic's director complained to Gambro's regional director by email that Campbell was unreliable and that her absence had disturbed her vacation. During Campbell's absence for back surgery other Gambro employees for neighboring clinics covered her inventory and secretarial duties. Major inventory problems were discovered, most notably an inventory discrepancy between the database and the physical stock in the amount of $6,500. Her secretarial performance was similarly bad, particularly the discovery of several thousands sheets of old patent records piled in an office in violation of company policy requiring prompt filing. Returning to work after her back surgery, she learned that PCT hours had been decreased from 24 to 21, that she had been relieved of her secretarial and inventory duties, and she was served with a corrective action form for not calling in on the day following her injury. In the district court the trial judge granted Gambro's motion for summary judgment on her interference claim because the adverse employment action came after her FMLA leave ended and she had been reinstated. That left her retaliation claim to be tried. On appeal, that court disagreed with the trial court because: To hold otherwise would create a perverse incentive for employers to make the decision to terminate during an employee's FMLA leave, but allow the employee to return for a brief period before terminating her so as to insulate the employer from an interference claim. So, because Gambro's decision to fire Campbell was based on factors before she returned to work, she was allowed to proceed with her interference claim. Despite all of this, the appellate ultimately rejected her claim because the decision to terminate was found to have been actually based on Campbell's performance deficiencies. There was no evidence to dispute the decreasing number of patients and the proof of her deficient employment performance. Disclosures: inquiries from prospective employers, consent, releases, immunity, good faith, qualified immunity, public safety, public policy encouraging full and accurate disclosure, potential liability to third parties for not disclosing danger How much information a former employer should disclose in response to an inquiry from a perspective employer is usually a difficult decision to make. Often the response is typically brief: date of start of employment and date of end of employment. What about negative information that ought to be disclosed to in the interest of public safety, such us medical facilities, police matters, etc.? In this case, one healthcare facility inquired of another about the work history of an applicant for a position as physician's assistant. Keep in mind, also, that a third party, such as a patient, may also have an interest in the competence of a healthcare employee and might sue the former employer for failing or refusing to disclose unfavorable or questionable information that might have saved the patient from harm or injury. This NM court of Appeals case is controlling law in our jurisdiction (the NM Supreme Court reviewed it and decided it need not modify it). This opinion is not as strong as many employers would like it to be, but it goes a long way in declaring a strong public policy in favor disclosure. As much as employers would probably like to have absolute immunity about release of information about former employees, that may never happen in NM based on past cases, the reference immunity statute (1978 NMSA, § 50-12-1), and other precedents that to the effect that one's negligence cannot be protected by a total release from liability. For your information: Download 5.55 Mb. Share with your friends:
|