Jurisdiction: 6th Circuit

Plaintiff alleges the following facts supported by declarations and deposition testimony: In 2005, Fontenot began performing legal support services for Brouillette while he was a practicing attorney in Lafayette, Louisiana, and later in 2005, the two began a consensual sexual relationship. * * * In 2006, when Atinum hired Brouillette as a land manager, Fontenot continued to perform personal services for Brouillette while also beginning to work for Atinum, which paid her as an independent contractor. * * * During this time, Fontenot worked in Brouillette’s former Lafayette office, which was paid for by both Brouillette and Atinum, but two or three weeks per month Fontenot was also required to work in Houston, Texas, either at Atinum’s offices or Brouillette’s apartment. * * * Atinum provided Fontenot with computers and other equipment necessary to perform her job; Brouillette controlled her working hours, her assignments, and the manner in which she completed them. * * * Brouillette also requested that she discontinue outside work in order to focus on her work for Atinum and required her to attend Atinum meetings, classes, and social functions in Houston. * * *

• 
  reasonable and
  
• 
  not an undue hardship.
  

• 
  Thompson provides grading, paving, and utility services for transportation projects in eastern North Carolina.
  
• 
  Its regular workweek is Monday through Friday, but occasionally employees were required to work on Saturday to meet project deadlines or to make up for days lost to bad weather.
  
• 
  Banayah Yisrael worked for Thompson as a dump truck driver .
  
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  His Hebrew Israelite faith observed his Sabbath on Saturday.
  
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  After Mr. Yisrael refused to work three different Saturdays, his employment was terminated.
  

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  District Court:
  

• 
  The EEOC filed suit on his behalf, alleging that his employer violated Title VII by failing to provide a reasonable accommodation for Mr. Yisrael’s religious beliefs.
  
• 
  Thompson moved for summary judgment, and during the summary judgment proceedings, the EEOC proposed three possible accommodations:
  

1. 
   the company could have excused Mr. Yisrael from work on Saturdays and hired hourly contract drivers in his place,
   
2. 
   the company could have created a pool of substitute drivers from current employees in other positions, or
   
3. 
   the company could have transferred Mr. Yisrael to the general equipment operator position.
   

• 
  The district court found that none of the EEOC’s proposals were reasonable and granted summary judgment in favor of the employer:
  
  • 
    It rejected the first two proposed accommodations after concluding that the employer had met its burden of showing that each would have resulted in an undue hardship on the company’s business.
    
  • 
    It rejected the third proposed accommodation because it found that Thompson reasonably believed Mr. Yisrael would not have accepted such a position.
    

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  Appellate Court:
  
  • 
    Based on its previous holding in EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008), when a plaintiff has established a prima facie case of religious discrimination under Title VII, the burden of proof shifts to the employer to demonstrate either:
    
    1. 
       it provided a reasonable accommodation for the plaintiff’s religious observances or
       
    2. 
       providing such an accommodation would have created an undue hardship on the employer.
       

• 
  In Yisrael’s case, the appellate court found that his employer had shown that the EEOC’s proposed accommodations would have created undue hardship on the company’s business, and, thus it was unnecessary to evaluate whether it had provided a reasonable accommodation.
  
  1. 
     Thompson employed only five dump truck drivers, and “[w]hen dump truck drivers were needed on a Saturday . . . it was not uncommon that all of Thompson’s dump truck drivers were deemed essential.” Excusing Yisrael from Saturday work, would have forced the company to use independent contractors, make other employees do his work, or not have had the work done at all, which “would impose more than a de minimis cost on Thompson, resulting in an undue hardship on the conduct of its business.”
     
  2. 
     Creating a pool of substitute drivers who could properly fill-in for Mr. Yisrael as needed would have required Thompson to incur the cost of training employees to drive a dump truck and the expense of adding those employees to its liability insurance policies, again, this proposal also would have imposed more than a de minimis cost, and thus be an undue hardship, on Thompson.
     
  3. 
     The EEOC’s third proposal was unreasonable because the evidence suggested Mr. Yisrael would not have accepted a transfer to the general equipment operator position , and “Thompson was not required to offer [Mr.] Yisrael an accommodation that, on the basis of his action, the company reasonably believed would be refused.”
     

CFRA: California Family Rights Act, similarity to FMLA, later denying authorization, estoppel inapplicable

This act is similar to the FMLA – companies with 50 or more employees – must have worked for the company for 12 months, and must have worked at least 1,250 hours during the 12 months prior to the start of the leave – 12 weeks of leave to eligible employees for certain qualifying events, one of which is the care of a family member with a serious health condition – and under CFRA employers must promptly respond to employee requests for leave, with an outside limit of 10 days from the date of the request.

• 
  Lars Olofsson was a driver for Mission Linen.
  
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  His mother had scheduled back surgery in thirty days, and he requested seven weeks of family medical leave to care for her.
  
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  His supervisor told him to fill out a leave application and submit physician’s certification – the supervisor did not approve the leave, and explained that human resources had to authorize it.
  
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  Seven days later he returned the leave request forms to the payroll clerk, having checked the box indicating that he was eligible for the leave, but the clerk whited-out that check mark, explaining that the leave decision would be made by human resources.
  
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  Sixteen days after requesting the leave, he returned a physician’s note, but wasn’t on printed letterhead of a medical entity.
  
• 
  The human resources director asked that Olofsson complete the official government certificate of health care provider in order to verify the legitimacy of the physician’s note, which he did and turned in about a week later.
  
• 
  During the time Olofsson was instructed to train his relief driver in case his leave was granted.
  
• 
  When Olofsson turned in the medical certification, his supervisor told him that his leave request was denied because he had not worked 1,250 hours in the prior 12 months.
  
• 
  By this time his mother had already had the surgery by this point, so he decided to take the time off anyway.
  
• 
  When he failed to report for work, his employment was terminated.
  

• 
  The trial court granted judgment in favor of the company because he was not eligible for the leave, and it rejected his estoppel argument [Note: Estoppel is a legal doctrine that in the employment context prevents an employer from raising a defense if it had misled the employee about his or her rights, and the employee has relied upon the employer’s misrepresentation to his or her detriment]. The employee contended that his employer misled him into believing that his leave was granted, so his mother went ahead with the surgery – it waited until after the surgery to deny the leave, and by then it was too late for the employee to reschedule his time off.
  
• 
  The appellate court rejected his argument:
  
  • 
    It never expressly told him that his leave was granted. Rather, several times he was told that it had not been formally approved.
    
  • 
    Though he was asked to train his temporary replacement, the company clearly stated that was to be done only in case his leave was approved.
    

• 
  The appellate court also rejected the his contention that the company should have told him within ten days that his leave was denied because regulations do not require an employer to grant or deny leave within ten days — they only require the employer to “respond” within ten days and don’t specify what the response should be. The court found that the company appropriately responded by telling the employee to obtain medical certification and to fill out leave request forms, and it followed up by asking for additional medical certification because it had doubts about the physician’s original note on plain paper.
  

FLSA: arbitration agreements are valid for resolving claims

• 
  Paul S. Rangel was a pharmaceutical sales professional with the companies (S-A) from 1985 until his employment was terminated in a RIF on December 30, 2008.
  
• 
  Undisputed that he had no negative performance reviews until after 2006 when S-A issued new “Sales Professionals Procedurals and Expectations” guidelines with detailed expectations for all its sales professionals nationwide, including:
  
  • 
    a minimum number of expected face-to-face sales calls with physicians,
    
  • 
    required reports on planning before and after all call,
    
  • 
    use of specific product and promotional material, and
    
  • 
    on-going sales communications.
    
• 
  After these guidelines were issued, two different S-A supervisors, Ms. Soupir and Mr. Ford, documented in over twenty memos and performance reviews deficiencies in his ability to follow those guidelines, such as:
  
  • 
    inconsistent use of sales materials, visual aids, and clinical product information,
    
  • 
    knowledge product and use of clinical studies,
    
  • 
    pre- and post- call planning; and
    
  • 
    sales territory management.
    
• 
  Six months later, similar memo – still deficient in these core competencies, plus “not implementing the feedback that [had] been provided [to him] over the past nine months” and lack of urgency in meeting these performance expectations was “unacceptable moving forward.”
  
• 
  October 2007 – Soupir:
  
  • 
    gave him a detailed “Coaching Letter,” identifying specific actions he needed to take to demonstrate consistent and sustained improvement in the core competencies,
    
  • 
    accompanied him on sales calls
    
• 
  November 2007 and January 2008 – sent him memos listing ways in which he could improve.
  
• 
  February 2008 – Soupir memo – his improvements were inconsistent and she listed the improvements he needed to make in his selling skills, product knowledge, and territory management.
  
• 
  2007 performance review – similar comments.
  
• 
  May 2008 – placed on a final written plan (FWP) in, for “continuous and significant gaps between the minimum expectations of the job and [his] performance”, which meant he would automatically receive a “below expectations” performance rating for 2008.
  
• 
  June 2008 – Ford became his supervisor
  
  • 
    accompanied on sales calls,
    
  • 
    memo noting numerous performance problems, including lack of product and clinical data knowledge and inconsistent use of sales data and resources.
    
• 
  August 2008 – memo identified continuing deficiencies and advised that “immediate and marked improvement must be made” – Ford noted marked improvement performance a month later, but also identified issues that needed improvement.
  
• 
  October 2008 – mid-year review overall performance was rated below expectations.
  
• 
  All of this warning, counseling and documenting gave specific examples of his stated deficiencies, which included:
  
  • 
    giving incorrect product information,
    
  • 
    lack of effective listening with physicians,
    
  • 
    repeatedly failing to use S-A’s selling model and materials,
    
  • 
    not following the pre-call planning process,
    
  • 
    failing to do multi-product sales calls, and ongoing planning problems with sales territory management.
    

• 
  September 16, 2008 – he filed an age discrimination complaint with the Kansas Human Rights Commission.
  
• 
  December 4, 2008 – S-A announced its corporate realignment, which included a nationwide RIF that terminated all sales professionals who had either a “below” or “less than” expected performance rating in two of the last three years, or who had a “below” or “less than” rating in 2007 and were trending towards those ratings in 2008.
  
• 
  Three days before that public announcement, S-A notified Mr. Rangel he would be terminated in the RIF because he had a “below” rating in 2007 and, as a result of the FWP, would be rated “below” for 2008 as well.
  

• 
  His KHRC ADEA complaint alleged:
  
  • 
    he was over 40 years old,
    
  • 
    his performance was satisfactory because he had some of the highest sales results in his district both before and after Soupir began to supervise him, and
    
  • 
    S-A singled him out for unwarranted criticism because of his age and later and later retaliated for the age discrimination complaint.
    
• 
  In the trial court his employer moved for summary judgment:
  
  • 
    Discrimination:
    
    • 
      similarly-situated younger employees were not treated differently than he was treated, and
      
    • 
      he had not presented any evidence that his inclusion in the RIF was pretext for age discrimination or ADEA retaliation.
      
  • 
    Retaliation: All of the performance reviews that caused him to fall within the uniform RIF criteria were issued well before he filed his age complaint with KHRC.
    

• 
  The appellate court affirmed the order and judgment of the trial court.
  

Title VII; gender, single mother, failure to promote, disparate impact,

1. 
   If a plaintiff states a prima facie case of illegal discrimination,
   
2. 
   the burden shifts to the employer to proffer “a legitimate non-discriminatory purpose for the adverse employment action.”
   
3. 
   If the employer makes this offering, the plaintiff will avoid summary judgment only if she shows her sex “was a determinative factor in the . . . employment decision, or show[s] the [employer’s] explanation for its action was merely pretext.