Jurisdiction: 10th Circuit

• 
  Pretext was an issue requiring close scrutiny of the facts and various possible exceptions to the usual defense of too much time elapsed since the adverse employment action and the alleged retaliation, i.e., timing of adverse employment action, temporal proximity, unique circumstances, and a causation analysis.
  
• 
  The appellate court stated the McDonnell Douglas:
  

To establish a prima facie case of retaliation, a plaintiff must demonstrate (1) that he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action. Once the plaintiff has made out a prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the employer articulates a legitimate reason for the action, then the plaintiff must demonstrate that the employer’s asserted reasons are pretextual.

• 
  On the issue of pretext, the appellate court remanded (returned) the case to the trial court for further proceeding based on the appellate court’s analysis and indication that a trial might be necessary “because the district court never reached the issue of pretext, and given the somewhat conflicting evidence in the record, it will likely prove to be a highly fact intensive inquiry”.
  

ADA: medical records confidentiality, 48 U.S.C. §§ 12112(d)(3) and 12112(d)(4)(B), inadvertent disclosure or acquisition knowledge of medical information; statutory interpretation, “clear congressional intent”

Summary by Tinder, Circuit Judge:

• 
  Thrivent had missed work in the past, but had checked as required by company policy – “very good about notifying” when he might be absent. However in this instance his migraine headache had apparently disabled him to the extent that he failed to do that. Company officials were concerned and sent him an email – “Gary, give us a call, and give John a call. We need to know what is going on. John called here looking for you.” Hours later a long email arrived from Messier explaining the severe migraine problem. A response a few hours later urged him to “get better” and to “let me know . . . [i]f there is anything that I or Omni can do.”
  
• 
  For some reason Messier quit despite his assurances he was committed to the contract. There is mention in the trial court record the “we ran into a very strong disagreement on expectations and he walked out on us”, which suggested he left on bad terms.
  
• 
  During his job search three prospective employers lost interest in him after reference searches.
  
• 
  Curious, he contracted with Reference Matters, Inc, (RMI), an agency that checks online references, which contacted Thrivent – he “ . . . has medical conditions where he gets migraines. I had no issue with that. But he would not call us. It was the letting us know.”
  

Based on that, he filled his ADA claim alleging ADA medical records confidentiality violation, 48 U.S.C. §§ 12112(d)(3) and 12112(d)(4)(B).

• 
  The appellate court reviewed the applicable statutes in detail and analyzed their purpose and the clear intent required for statutory interpretation.
  
• 
  It rejected the cases cited by the EEOC on the ground that they were distinguishable from the facts in Messier’s case because the case relied on by EEOC involved inquiries by employers with prior knowledge of illnesses:
  

The EEOC claims that Doe and Ford Motor stand for the proposition that “inquiries” under 42 U.S.C. § 12112(d)(4)(B) include all interactions between the employer and the employee that (1) are initiated by the employer, and (2) result in the employee revealing medical information. Yet in both Doe and Ford Motor, the employers initiated the interactions with some preexisting knowledge that the employee was ill or physically incapacitated. Additional case law supports this notion that an employer must already know that an employee is ill or physically incapacitated before initiating the interaction in order for the interaction to be considered an inquiry under 42 U.S.C. § 12112(d)(4)(B).

• 
  That was not the situation when Thrivent made its inquiry – it had no idea why Messier had not checked in as required by company policy, and it was Messier who provided on his own initiative the detailed information about his migraine problems (similar to an applicant volunteering medical information in an interview). As the court pointed out, in the EEOC’s cases . . .
  

. . . the employer already knew something was wrong with the employee before initiating the interaction in order for that interaction to constitute a 42 U.S.C. § 12112(d)(4)(B) inquiry. Neither Thrivent nor Omni had any such knowledge here. There is no evidence in the record suggesting that Thrivent or Omni should have inferred that Messier’s absence on November 1, 2006 was due to a medical condition. There is no evidence in the record that Messier had been sickly during his first four months of employment. There is no evidence that Messier had experienced a headache at work during his first four months. For all Thrivent and Omni knew, Messier’s absence was just as likely due to a non-medical condition as it was due to a medical condition. Indeed, as Thrivent pointed out to the district court, “Messier could have had transportation problems, marital problems, weather-related problems, housing problems, criminal problems, motivational problems, a car or home accident, or perhaps he simply decided to quit his job at OMNI (which he did just a month later on December 4, 2006.)” When Brey emailed Messier on November 1, 2006, he had no idea that Messier was ill—let alone disabled. For this reason, No. 11-2848 17 Brey’s email cannot be an inquiry for the purposes of 42 U.S.C. § 12112(d)(4)(B).

1. 
   how employers organize their workforce and develop policies and practices prohibiting harassment in the workplace, and
   
2. 
   how Title VII harassment cases are litigated.
   

What ought to be the extent of control authority of a supervisor?

• 
  occasional control of terms and conditions of employment such as hiring, firing, scheduling, or
  
• 
  complete control of that?
  

The definition is important because it makes a difference in proof between:

• 
  the company knew or should have known of the discriminatory behavior, or
  
• 
  knowledge of the supervisor being automatically imputed to the employer – knowing or should have known not being required.
  

• 
  Ruby Clinkscale worked as a nurse for this long-term care facility from 2005 to 2010.
  
• 
  Staff could be “floated” to different units.
  
• 
  Her training was in rehabilitation, and that was the professional service she provided until 11/11/10, when she was reassigned to the long-term care unit.
  
• 
  Before the transfer she had requested training in long-term care.
  
• 
  She began experiencing symptoms of undiagnosed anxiety disorder and expressed apprehension about working in a unit in which she had no training.
  
• 
  She clearly stated she was not refusing to work in that unit, and after the onset of those symptoms renewed her request training in long-term care.
  
• 
  Her supervisors told her she had “no choice” – you either work or you don’t have a job – that’s patient abandonment – you could lose your license.
  
• 
  She immediately went to human resources, and during her conversation with the director she showed signs of a panic attack, crying and shaking severely enough to request an ambulance. Instead, she was told to go home and then see what might be worked out the next day.
  
• 
  She made an appointment with her physician for the next morning, and the next day:
  
  • 
    Her physician suggested the anxiety attack was triggered by the situation and recommended therapy and prescribed two medications. His note to her employer recommended taking the week off, which she delivered to her employer.
    
  • 
    Human resources gave her FMLA forms for her physician to complete and return.
    
  • 
    Later that day a member of the human resources staff called her at home to inform her she had been fired for walking off the job.
    
• 
  Two days later the FMLA forms were returned, which described her as "suffering from anxiety and panic attacks" and requesting she be excused from work for one week due to the severity of her condition.
  
• 
  About eight days later her employer registered a complaint regarding her with the Minnesota Board of Nursing, alleging that Clinkscale had "refused work assignment & walked out."
  

• 
  In the trial court:
  
  • 
    Her complaint to the trial court alleged St. Therese impermissibly interfered with her right to take reasonable leave for medical reasons in violation of the FMLA.
    
  • 
    Her employer moved for summary judgment dismissal on the grounds the she was not entitled to FMLA rights because she had no longer been an employee at the time she asserted them and, in any case, she had been terminated for reasons "wholly unrelated to the FMLA."
    
  • 
    Summary judgment was granted summary judgment in favor of the employer on all claims.
    
    • 
      Interference - the court concluded her employer did not have notice of her need for medical leave prior to her termination, and in the alternatively,
      
    • 
      She had been terminated for patient abandonment and not for asserting her FMLA rights.
      
• 
  In the appellate court:
  
  • 
    Her condition in the workplace was found to have been sufficient notice to her employer of the possibility of the existence of a serious medical condition (an employer cannot avoid legal liability by firing someone who takes leave for a condition that ultimately may be diagnosed as a serious health condition requiring FMLA leave).
    
  • 
    The appellate court found that when her employer told her to go home to attend to her condition, provided FMLA paperwork to her, and then decided instead to fire her before she could submit completed paperwork, that created an issue of fact which a reasonable jury could conclude that sufficient notice had been provided to her employer” as soon as practicable” as required by the FMLA, and thus . . .
    
  • 
    a reasonable jury could conclude that her employer had interfered with her possible need for leave.
    
  • 
    Bear in mind that the appellate court did not find that her employer violated the FMLA. Rather, it determined that based on the facts as asserted by her, a reasonable jury would have to determine:
    

1. 
   whether notice of a serious health condition was provided by her to her employer, and
   
2. 
   whether her employer interfered with her possible FMLA leave when it terminated her for leaving work on the day of the episode (which may turn out to be a costly precipitous action).
   

NLRB: mandatory arbitration agreement, employees’ waiver of right to participate in class or collective actions, additional duty imposed by Administrative Law Judge (ALJ)

• 
  The ruling in D. R. Horton was that a mandatory arbitration agreement waiving employees’ rights to participate in class or collective actions is unlawful under the National Labor Relations Act.
  
• 
  In the case of 24 Hour Fitness USA, Inc., an NLRB ALJ followed D.R. Horton ruling and also expanded its holding to further restrict the rights of employers to invoke arbitration agreements executed by employees.
  

* Note that many employers are fighting back on recent NLRB decisions they believe exceed the authority of the NLRA, and this ruling may well be appealed or otherwise challenged in court. Also, ALJ decisions are binding only on the parties to the case rather than a wide variety of entities.

• 
  January 2008 – previous back in motor vehicle accident – hired without restriction after medical examination – part-time clerical employee.
  
• 
  Subsequently promoted to a full-time position in the Human Resources Department, and then customer service representative.
  
• 
  Later complained to her treating physician of worsening back pain, who provided her employer with work release form stating the she was “completely incapacitated” for an eight-day period, and the company advised her to apply for FMLA leave and gave her the necessary paperwork and leave policy.
  
• 
  Shortly thereafter she returned to work and then her physician gave the company an incomplete Certification of Health Care Provider form to the company stating she was having four “flare ups” per month and would be unable to perform all of her job duties during those episodes.
  
• 
  Advantage approved her request for intermittent FMLA leave, and after that she began using the leave as continuous rather than intermittent, which caused the employer to remind her repeatedly to contact her supervisor if she was unable to come to work and also to turn in the required paperwork.
  
• 
  An additional Certification, projected she would be disabled another few weeks, and was followed by a work release form indicating the plaintiff was completely incapacitated for an additional three weeks).
  
• 
  At this time she spent eight hours at a local festival with friends and later posted pictures of that activity on her Facebook page.
  
• 
  Her voice mail messages to her supervisor stated that she would not be at work on Monday because she was in pain.
  
• 
  Unfortunately for her, her supervisor and several of her coworkers were Facebook “friends”, and one co-worker called her supervisor’s attention to the pictures, who then alerted her own supervisor. The photos were shared with responsible company officials, company legal counsel was consulted, and an investigation was begun.
  
• 
  In her investigation interview she was unable to provide a reasonable explanation for the discrepancy between her leave request and her conduct at the festival, and the adverse employment action decided on was to terminate her employment for apparent fraud.
  

• 
  Trial court – her FMLA claims were for interference and retaliation were dismissed on summary judgment:
  
  • 
    no evidence that anyone at the company had a retaliatory motive and
    
  • 
    the employer had an “honest suspicion” the plaintiff was abusing her leave.
    
• 
  Appellate court:
  
  • 
    Elements of required proof under her circumstances:
    
    • 
      for the interference claim one elements of proof was “[whether] the defendant denied [her] FMLA benefits or interfered with FMLA rights to which [s]he was entitled,” and
      
    • 
      for the retaliation claim, “[whether] there was a causal connection between the protected FMLA activity and the adverse employment action.”
      
  • 
    The employer’s intent to discriminate is required to prove a claim under the retaliation theory, but not under the interference theory.
    
  • 
    In rejecting a strict liability standard for interference cases, it stated:
    

“[I]nterference with an employee’s FMLA rights does not constitute a violation if the employee has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Edgar v. JAC Prods., Inc., 443 F. 3d 501, 507-08 (6th Cir. 2006).

• 
  Next, it determined that FMLA interference claims were properly analyzed under the McDonnell Douglas burden-shifting test, at least where, as in this case, the employer had proffered a “legitimate reason unrelated to the exercise of FMLA rights for terminating the employee.”
  
• 
  “Honest Belief” Rule, i.e., whether an employer’s “honest belief” in the justification for its action can defeat an FMLA interference claim:
  

[S]o long as the employer honestly believed in the proffered [lawful] reason given for its employment action, the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.