Human resources & employment law cumulative case briefs

This case arises from the Boeing Company’s (“Boeing”) 2005 sale, to Spirit AeroSystems, Inc. (“Spirit”),1 of facilities in Wichita, Kansas, and Tulsa and McAlester, Oklahoma (the “Wichita Division” or “Division”). On June 16, 2005, Boeing terminated the Division’s entire workforce of more than 10,000. The next day, Spirit rehired 8,354 employees, who had been selected by Boeing’s managers. Although older employees predominated in the workforce both before and after the sale, a lower percentage of older workers than younger ones were rehired.2 The plaintiffs (the “Employees”) sued, seeking to represent a class of about 700 former Boeing employees who were not hired by Spirit.

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  The salesman worked for a company that manufactured corrugated packaging products.
  
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  His bosses were dissatisfied with a noticeable decline in his sales revenue and volume over the past two years, and his year-to-date figures were even worse.
  
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  During this time he had begun having problems with chest pain and labored breathing, and tests revealed a blockage in a portion of his heart, for which he was subsequently admitted to the hospital to treat the blockage.
  
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  Five days before his scheduled heart procedure, he met with his bosses to discuss his year-to-date performance:
  
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    He disagreed with their assessment, mostly because he believed that they adjust his sales expectations for the time he took FMLA leave.
    
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    That meeting ended with a serious warning to him to either improve his performance or face termination of his employment.
    
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  Several weeks later, while he was in a medical clinic for follow-up tests, his boss contacted him and informed him he would be traveling to the sales territory the following day to accompany him along on some sales calls:
  
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    Importantly, sales calls typically were scheduled one week in advance to give the client enough notice and the employee enough time to prepare.
    
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    The current evaluation set up on short notice left him no time to set up a full day of calls or to prepare for them.
    
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    This resulted in him and his boss making two client visits the following day, he did not perform well.
    
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  He was terminated shortly thereafter for continued poor performance, including the unsuccessful sales calls with his boss.
  

The appellate reversed the trial court’s summary judgment in favor of the employer:

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  The FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job. However, it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.
  
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  Three important factors to the appellate court were:
  
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     the company terminated him for not meeting sales expectations, even though he was absent a number of days for FMLA-protected treatment;
     
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     his boss relied on inaccurate data in deciding that he had not meet some of the company's reporting requirements; and
     
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     his boss unfairly insisted on making client sales calls contrary to the company’s standard practice required one-week advance notice to the client, which could indicate that the boss was setting Jeff up to fail.
     

This case will now proceed to jury trial with these factors to be considered, as well as other issues.

summary judgment in favor of employer affirmed

retaliation claim failed because she had not been eligible for FMLA leave and thus had no right to FMLA protection.

the term “Cat’s Paw” is used to describe a person who is unwittingly manipulated by another to accomplish his or her purposes. In the context of employment discrimination, “Cat’s Paw” refers to a theory of liability in which an employee, without formal authority to alter the terms and conditions of an employee’s employment and who harbors an unlawful discriminatory animus, influences the employer in making an adverse employment decision, such as a termination, by supplying the decision-maker misinformation or failing to provide relevant information.

here is the recent 6^th Circuit case:

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  Chattman alleged that the company’s local HR director had recommended an adverse employment action [termination of his employment] based on racial bias and had lied that other supervisors supported the recommendation.
  
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  The company human resources director was not the decision-maker, but the appellate court concluded that summary judgment was inappropriate under the cat’s paw theory, considering the genuine issues of material fact that Chattman had raised, i.e., and there was much more going on for a jury to consider, ruled that that the issue should have gone to a jury, and remanded the case for further proceedings.
  

ADA: qualified individual with a disability (QIWAD),

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  Tammy Rosebrough was born without a left hand.
  
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  During the application process for a cook's position, a supervisor told her that if she was interested, the school was in desperate need of bus drivers, and she applied.
  
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  The Ohio Department of Education requires a waiver before an individual missing a limb is allowed to operate a school bus.
  
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  While she was waiting to receive her waiver, the school district began her training.
  
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  However, she felt a bias against her because of her missing hand, and she never finished her training.
  

She sued for disability discrimination:

The trial court ruled that she was not "qualified" to work as a bus driver trainee.

The appellate court reversed the trial court's determination and remanded [returned] the case for trial ADA provisions cover discrimination on the basis of disability during job training, which protects individuals while they receive the training required to perform the essential functions of their ultimate job position:

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  it protects them from discrimination that could deny them the means to obtain qualifications necessary to undertake that position and
  

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  2003 – The City of Plainfield, New Jersey, hired Jadwiga Warwas, a licensed physician, as the City’s Health Officer.
  
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  2006 – She requested FMLA sick leave for several health problems.
  
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  Confirmation of her condition and eligibility was required by the city, and her treating physician to completed the form, indicating that she “was restricted to home and could not work/attend school. Based on that information, Plainfield granted the leave request.
  
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  Despite her treating physician’s indication that she was unable to work, she continued to work at home on a part-time basis, but for the City of Paterson, New Jersey.
  
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  September 30, 2006 – Learning of that situation with the City of Paterson, the City of Plainfield terminated her employment with Paterson.
  
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  She appealed that adverse employment action to the Merit Systems Board, which ultimately reinstated her employment.
  

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  District court:
  
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    She alleged interference with FMLA leave.
    
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    At the close of pretrial discovery, Plainfield’s moved for summary judgment, which was granted.
    
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  Appellate court: It affirmed the summary judgment dismissal order on the grounds that Plainfield terminated Warwas for reasons “entirely unrelated to the exercise of her rights under the FMLA because Plainfield believed that she had not used her FMLA leave for the intended purpose:
  
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    Despite of her doctor’s indication that she was unable to work, she continued to work for Paterson while on leave.
    
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    “Warwas is not entitled to a greater degree of protection for violating Plainfield’s Municipal Code merely because she was on FMLA leave when caught and terminated.”
    
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    It found that she was terminated not for her use of FMLA leave, but for the perceived misuse of the leave and her subsequent failure to return to work.
    

FMLA: adverse employment action, no reinstatement, surveillance, reasonable honest suspicion of abuse of leave, no pretext; summary judgment

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  Carrier Corp. believed some of its employees had been abusing FMLA leave for significant periods of time, so it hired a private investigator to conduct surveillance on 35 employees who were suspected FMLA abusers, one of whom was Daryl Scruggs, a brazier (process for torching parts into fan coils).
  
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  2004 – Beginning then, Scruggs requested and was provided with intermittent FMLA leave to visit his mother at a nursing home and to drive her to doctor's appointments.
  
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  2006 – Carrier began aggressively pursuing excessive absenteeism:
  
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    Developing new procedures for requesting leave.
    
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    Hired a private investigator to conduct surveillance on Scruggs and several co-workers who were suspected of misusing leave or who had a high number of unexcused absences.
    
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      During one instance, the investigator set up video surveillance in front of Scruggs' home throughout the day to follow his comings and goings at a time when he requested FMLA leave to visit his mother.
      
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      About all the video indicated was that he came out from his house just once that day to check his mail and that his two cars were parked in the driveway all day and didn't move – no visit to his mother.
      
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    When confronted with the video surveillance taken on a day when he should have been caring for his mother:
    
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      He first said couldn’t recall what he did that day.
      
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      Later insisted that his brother picked him up and dropped him off in the back of his home, and that he used the back door to come and go.
      
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      Interestingly, he somehow later provided documentation from the nursing home showing that he had checked out his mom for a doctor's visit.
      
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      Concerning not reporting to work that day, he suggested that, by the time he returned home, it was "early afternoon" and thus too late for him to report to work.
      
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  Carrier didn’t believe him:
  
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    The video tended to confirm he didn't leave his house.
    
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    The documentation he provided was inconsistent:
    
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      Documents from the nursing home showed that he checked out his mother at 11:30a.m.
      
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      However, a note from her physician indicated that Scruggs had been there between 10 and 10:30a.m., which was well before he checked her out of the nursing home.
      
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  After reviewing all the information, Carrier terminated his employment for these reasons:
  

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   the surveillance video;
   
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   inconsistencies among the documents from the nursing home and his mother's physician; and
   
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   holes in his story.
   

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  An employee is entitled to reinstatement after taking FMLA leave only if he takes leave for its intended purpose.
  
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  However, as the court pointed out, an employer can "refuse to reinstate the employee based on an ‘honest suspicion’ that she was abusing her leave."
  
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  The court dismissed his FMLA claims because it found that his employer had an honest belief that he was not using FMLA leave for its intended purpose.
  

FMLA, Benefits: written welfare benefit plan, clear descriptions, coverage periods, absence, excess claims, COBRA

federal district court’s ruling that no stop-loss coverage was available for expenses incurred under the former employee’s COBRA coverage, because she was not an eligible participant under the terms of the employer’s plan or stop-loss policy - neither of which included coverage for the STD leave period. It concluded that the COBRA coverage the employee had elected was not timely offered because the STD leave period was not provided for in the plan documents. Further, that specific exclusion for late COBRA notice provided an alternative basis for the court to uphold the denial of insurance coverage for her claims, regardless of whether or not she had been an eligible participant.

discussions of employer’s ongoing investigations, possible violations of Act, § 8(a)(1)

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  A general, comprehensive, blanket prohibition on employee discussions of investigations, regardless of circumstance, should be avoided.
  
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  Investigators have be trained adequately on this issue and advised that any statements even requesting confidentiality should be made only after a detailed analysis of the scope of the investigation.
  

optical company terminated relationship, agreement unenforceable against former optometrist