Human resources & employment law cumulative case briefs
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Controlling law. As explained by our 10th Circuit Court of Appeals, . . . the ministerial exception preserves a church’s essential right to choose the people who will teach its values, teach its message, and interpret the doctrines . . . free from the interference of the civil laws. That exception applies to ordained ministers, and it also extends . . . to any employee who serves in a position that is important to the spiritual and pastoral mission of the church. Monica Skrzypczak worked for the Roman Catholic Diocese of Tulsa in the department of religious information overseeing the creation and implementation of the goals of the department and its policies and programs and the administrative functions of the department. She also taught or facilitated the presentation of numerous religious courses in the Pastoral studies Institute, which is a part of diocese. Part of the mission of the foundation was to . . . provide a solid foundation in Catholic theology to educate, nourish, strengthen and renew the Catholic faith and Church in Oklahoma. Her discrimination claim included allegations of violation of Title VII. The church moved to have her claims dismissed because the diocese was exempt from such suit under the doctrine of ministerial exemption. The 10th Circuit Court of Appeals accepted the contention of the diocese on the grounds that her duties were sufficiently supportive of the spiritual and pastoral mission of the church to come within the extent of the ministerial exception. Skrzypczak v. Roman Catholic Diocese of Tulsa, Nos. 09-5089 and 09-5095 (10th Cir., 7/13/10); 2010 U.S. App. LEXIS 14295; 109 Fair Empl. Prac. Cas. (BNA) 1293; 93 Empl. Prac. Dec. (CCH) P43,932: http://www.ca10.uscourts.gov/opinions/09/09-5089.pdf [enhanced lexis.com version]. ADA; ADEA; Rehabilitation Act; Privacy Act: obesity, diabetes, unable to perform all essential functions of job Controlling law. As stated so many times in these briefs, focus on performance rather than condition. Obesity in and of itself does not determine whether a person is disabled. Also, it is not sufficient for an employee to show he or she can perform most of the essential functions of his or her job – the employee must be able to perform all of the essential functions, even if such is only occasionally necessary. In this case the employee failed his physical examination. Summary judgment in favor of the employer in the trial court was affirmed by the Tenth Circuit Court of Appeals on these grounds:
Though the employee contended that for the two years leading up to his demotion he ably performed his duties as a boiler plant operator, the appellate court decided he was not "otherwise qualified" under the Act because his job required him be able to respond quickly to emergencies and navigate ladders with a weight limit of 300 pounds [he weighed 338]. Further, "[a]lthough [the plaintiff] testified that 95 percent of his work was '[l]ight duty,' and he was only occasionally required to climb on ladders, in times of crisis, he might need to act quickly and move with dispatch.” Finally, "The record indicates that [the plaintiff] would pose a danger to himself and others should he fall from a ladder, plus the court was concerned of the potentially disastrous effects if he was unable to shut down a boiler if it malfunctions, leading to a possible explosion. Wilkerson v. Shinseki, No. 09-8027 (10th Cir., 6/2/10); 606 F.3d 1256; 2010 U.S. App. LEXIS 11135, 109 Fair Empl. Prac. Cas. (BNA) 660;93 Empl. Prac. Dec. (CCH) P43,904; http://www.ca10.uscourts.gov/opinions/09/09-8027.pdf [enhanced lexis.com version]. PDA, ADA: pregnancy, complex medical conditions, excess of caution, failure to objectively evaluate employee’s ability to perform Illustrative; not controlling law. As seen so many time in the past, decisions made by employers or supervisors about physical, mental or other conditions may be erroneous and violate anti-discrimination laws. This employer transferred a pregnant employee from her welding position into a light duty position. The employee was pregnant with her third child shortly after starting as a welder. Previously she had suffered a miscarriage. Concern over industrial chemicals in the workplace, plus climbing and heavy lifting and pulling influenced the decision. The employee’s physician opined that she would not have a problem, but the employer requested the employee to obtain a second opinion from the physician, which she did. Her transfer to duties in the tool room had a daytime schedule, but a later change to an evening schedule interfered with her child care schedule. After transferring to another obstetrician it was discovered that she had a condition requiring bed rest. When she presented documentation of that condition she was told she was being fired for being pregnant. She did not have sufficient time on the job to qualify for FMLA or other leave. This complicated case illustrates that when complex medical conditions arise, competent medical expertise needs to be sought by the employer rather than making a decision based on suspicion, assumption, or subjective information, even if that decision seems to be in the employee’s best interest. Spees v. James Marine, Inc., No. 09-5839 (6th Cir., 8/10/10); 2010 U.S. App. LEXIS 16477; 2010 FED App. 0236P (6th Cir.); http://www.ca6.uscourts.gov/opinions.pdf/10a0236p-06.pdf [enhanced lexis.com version]. Title VII: independent contractor, right to control Controlling law [because the reasoning is based on a United States Supreme Court case]. This is a good reminder about who is not an employee. The Title VII discrimination claim was correctly dismissed because the claimant was not an employee, but rather an independent contractor. Murray v. Principal Financial Group, No. 09-16664 (9th Cir., 6/17/10); 2010 U.S. App. LEXIS 15327; http://www.ca9.uscourts.gov/datastore/opinions/2010/07/27/09-16664.pdf [enhanced lexis.com version]. Relying on Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, at 323, (1992); http://www.law.cornell.edu/supct/html/90-1802.ZS.html [enhanced lexis.com version]; the 9th Circuit Court of Appeals wrote, "when determining whether an individual is an independent contractor or an employee for purposes of Title VII, a court should evaluate 'the hiring party's right to control the manner and means by which the product is accomplished.'" The factors to consider are: 1. the skill required; 2. the source of the instrumentalities and tools; 3. the location of the work; 4. the duration of the relationship between the parties; 5. whether the hiring party has the right to assign additional projects to the hired party; 6. the extent of the hired party's discretion over when and how long to work; 7. the method of payment; 8. the hired party's role in hiring and paying assistants; 9. whether the work is part of the regular business of the hiring party; 10. whether the hiring party is in business; 11. the provision of employee benefits; and 12. the tax treatment of the hired party. ADA; FMLA: police officer, fitness-for-duty exam allowed Illustrative; not controlling law. Neither the ADA nor the FMLA were violated by the City of Yakima when it required an officer returning to duty after leave to submit to a fitness-for duty examination. Officer Brownfield sustained a head injury and over time his behavior began to become erratic and disturbing, increasingly so with time. At issue was hose many fitness-for-duty-examinations (FFDE) could be conducted. Such examinations must be “job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A), requires that disability examinations must be based on a valid “business necessity”, and the appellate court stated that the standard “is quite high, and is not to be confused with mere expediency.” Brownfield apparently decide he had been examined enough times and refused to participate in an FFDE before a termination hearing, and his employment was then terminated. As you will recall, FMLA regulations state, “[n]o second or third opinions on a fitness-for-duty certification may be required.” 29 C.F.R. § 825.312(b). Brownfield contended that Yakima violated this provision by requiring him to submit to the FFDE after his primary care physician allegedly cleared him for duty. The appellate court rejected this argument, stating that “No reasonable juror could misread [the] letter as stating that Brownfield had recovered from the psychological issues that rendered him unfit for duty.” Further, Yakima did not request “second or third opinions” after Brownfield’s primary care physician refused to clarify his statement. Further, the appellate court noted, “. . . Yakima gave Brownfield several, additional opportunities to obtain a proper clearance by referring him to other physicians.” Under those circumstances, the appellate court ruled that liability under the FMLA would not be imposed on the employer. Concerning the ADA claim, the appellate court did not find a violation of that act either. Again, recall the caution would dictate that the focus needs to be factors such as behavior and its effect on safety, standards of performance, etc. Brownfield v. City of Yakima, No. 09-35628 (9th Cir., 7/27/10); 2010 U.S. App. LEXIS 15324; http://www.ca9.uscourts.gov/datastore/opinions/2010/07/27/09-35628.pdf [enhanced lexis.com version]. Title VII: harassment by third parties, patients, vendors, etc.; direct harassment, hostile work environment; retaliation; failure to train FYI illustration. A home health care employer continued to ignore at least 25 complaints by home health care providers a sexually hostile work environment. Further, to agency failed to provide adequate training in how to deal with such behavior. Equal Employment Opportunity Commission v. Nurse One/Team One, LLC, (Civil Action No. 4:09-cv-90, U. S. District Court for the Eastern District of Tennessee, Winchester Division). Union: punitive damages, common-law duty of fair representation Controlling law. Punitive damages area allowed against a union for breach of duty to provide fair representation (DFR) to one (or more) of its members. The determination of compensatory damages and punitive damages required two separate and distinct processes:
See NM UJI 13-1827, Punitive Damages, which deals with whether conduct was malicious, reckless, wanton, fraudulent, or done in bad faith. In this case the union appeared to have failed to act in situations of significant discriminatory behavior or hostile work environment. Wide discretion is allowed to a union, and factors for a union to consider in deciding whether and how to provide representation include, but are not limited to, the nature of the acts alleged in a grievance and whether representation is in the best interests of the union, and mere negligence is not a basis for a DFR action. As always, read the entire case for complete details. Akins v. United Steel Workers of America, AFK-CIO, CLC, Local 187, 2010-NMSC-031; http://www.nmcompcomm.us/nmcases/NMSC/2010/10sc-031.pdf [enhanced lexis.com version]. Title VII: discrimination nursing home, racially hostile work environment, perceived patient preference, racial comments from co-workers Illustrative; not controlling law. Though nor controlling, this case illustrates persuasive reasoning. Perceived racial preferences of nursing home residents were not valid basis for a defense to a Title VII racial discrimination claim. Brenda Chaney, a certified nursing assistant (CNA), worked in a nursing home. A resident did not want assistance from an African-American. The employer then admittedly issued a daily schedule which included a directive patient "Prefers No Black CNAs." The employer also admitted banning Chaney from assisting that resident. Also, Chaney was subjected to racially charged comments from co-workers. Three months after starting with the nursing home, Chaney was fired for allegedly making a comment using bad language – while lifting a resident she was claimed to have said “she’s shitting.” The district court granted the employer’s motions to dismiss her claims alleging racially hostile environment and discriminatory discharge. On appeal, the Seventh Circuit Court of Appeals reversed those lower court rulings:
Chaney v. Plainfield Healthcare Center, No. 09-3661 (7th Cir., 7/20/10); 2010 U.S. App. LEXIS 14804; http://www.ca7.uscourts.gov/tmp/ZP1FFQ8B.pdf [enhanced lexis.com version]. FMLA: insubordination, headache, failure to indicate FMLA leave Illustrative: not controlling law. More and more courts are ruling that an employer’s obligations under the FMLA arise only after an employee gives sufficient notice of a serious medical condition and gives sufficient information that FMLA leave is required. Thus, while it is not necessary that FMLA leave be stated, an employee's information is sufficient notice if it gives the employer enough information to reasonably conclude that the employee may need leave for an FMLA-qualifying reason. [Note: This kind of information ought to be an essential element of FMLA training for employees, supervisors, managers and executives. If an employer can show proper FMLA training, notice cases such as this would not wind up in expensive litigation. Proper training about rights and responsibilities was one of the key points in the Ellerth/Faragher cases.] In this case the issue was whether an adverse employment action was based on a valid business purpose or on discrimination or violation of FMLA leave rights. Because the facts in this case are specific, read the case. Briefly though, the employee’s headache was no excuse for his insubordination [Note: You will also recall that it is important, among other things, to focus on behavior rather than the disability or condition of the employee.] Gipson v. Vought Aircraft Industries, Inc., No. 09-6026 (6th Cir., 7/13/10); 2010 U.S. App. LEXIS 14383,*;2010 FED App. 0420N (6th Cir.); http://www.ca6.uscourts.gov/opinions.pdf/10a0420n-06.pdf [enhanced lexis.com version]. ADEA: no disparate treatment, not similarly situated, mixed motive; summary judgment for employer Controlling law. The key to success of the employer in this case is that it had a legitimate non-discriminatory reason for firing the employee. Patrick Medlock’s UPS truck collided with a gate that then became embedded in the front bumper. He claimed the truck must have malfunctioned, but subsequent tests ruled out malfunction. He was fired. In his age discrimination case he alleged that there had been eight similar instances in which drivers had committed similar misconduct. In seven of the cases the collisions were mitigated by weather and road conditions. The eighth case differed from Medlock’s because the driver admitted his mistake and was remorseful about it. The three-step test in such cases was (1) proof by Medlock that he was in a protected class and was replaced by an employee who was not, (2) showing by the employer of a valid business propose for the firing, and (3) proof by Medlock that such was a pretext for discrimination. The Tenth Circuit Court of Appeals pointed out that mixed-motive ADEA claims are barred under Gross v. FBL Financial Services, No. 08-441, ____ U.S. ____, 6/19/09); 2009 U.S. LEXIS 4535 [enhanced lexis.com version]. His second contention was that his direct supervisor had made a comment demonstrating age discrimination. That failed because the court found it was weak evidence, plus Medlock admitted his manager had no authority to termination or reinstatement. Medlock v. UPS, Inc., No. 09-5109 (10th Cir., 6/22/10); 2010 U.S. App. LEXIS 12770; 109 Fair Empl. Prac. Cas. (BNA) 1010; http://www.ca10.uscourts.gov/opinions/09/09-5109.pdf [enhanced lexis.com version]. Title VII: gender Controlling law. In this case the employer did not have a legitimate non-discriminatory reason for its adverse employment action. The three-step test in such cases was (1) proof by Lowber that she was in a protected class and was replaced by an employee who was not, (2) showing by the employer of a valid business propose for the firing, and (3) proof by her that such was a pretext for discrimination. Della Lowber worked as an Animal Control Officer (ACO) from June of 1990 until January of 2004, at which time budgetary concerns necessitated elimination of that position. In 2005 the city decided to create an APO position. Lowber applied, but a male applicant was hired instead. The dispute was over whether part time work would be allowed. She had expressed in part time work. Problems for the city arose when it did not have an ordinance or policy against part time work, her testimony that she didn’t say she didn’t want part time work, testimony from a witness she needed the job didn’t care if it was part time, she had previously been given permission for part time work, plus the mayor testified he had run a side business while in office. Testimony of other witnesses affirmed Lowber was competent to perform the job. She won. The Tenth Circuit Court of Appeals stated that “Pretext may be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered reasons . . . that a reasonable factfinder could rationally find . . . that the employer did not act for [its stated reasons].” Lowber v. City of New Cordell, Okla., No. 09-6310 (10th Cir., 5/19/10); 2010 U.S. App. LEXIS 10220; 109 Fair Empl. Prac. Cas. (BNA) 838; http://www.ca10.uscourts.gov/opinions/09/09-6130.pdf [enhanced lexis.com version]. FMLA: cleanup assistance held unrelated to mother’s hepatitis, “direct care” compared with “indirect care” Illustrative; not controlling law. As always, with rulings that are not controlling law in our jurisdiction, consult with legal counsel before proceeding with and adverse employment action such as this case did. However, at some point our jurisdiction may find the reasoning of this case persuasive (as opposed to binding or controlling). Joe Lane, a medical Technologist at Pontiac Osteopathic Hospital, had been granted FMLA leave to care for his mother, with whom he lived. She suffered from diabetes, high blood pressure, weight loss and arthritis and needed to be provided with food and to be driven to appointments with health care providers. For four months this was not challenged by his employer, but when he missed four days of work he violated hospital personnel absence policies by failing to call in. His reason for being absent was that when it rained the basement flooded and that the "flood cleaning days" should be excused because his mother had hepatitis and the stagnant water was a "breeding ground" for the disease. Rejecting that reason, the Hospital fired him. At trial the judge granted summary judgment in favor of the employer. Though he had not previously mentioned his mother’s hepatitis, the judge disregarded that matter and considered the following factors significant:
Over the years courts have expanded the scope of the definition of "caring for" as an FMLA leave entitlement. This case counters that trend by distinctly defining the difference between those activities that provide "direct" care to the family member (e.g., providing a meal or transport, or sitting bedside) and those that provide "indirect" care (e.g., salvaging mom's basement). Although the former regularly qualify for FMLA leave, the latter typically do not. Lane v. Pontiac Osteopathic Hospital, No. 09-12634 (United States District Court, E.D. Michigan, Southern Division, 6/21/10; http://scholar.google.com/scholar_case?case=16361142005570212643&hl=en&as_sdt=2&as_vis=1&oi=scholarr [enhanced lexis.com version]; read this article for further discussion of the matter and important considerations: http://www.fmlainsights.com/care-for-family-member/cleaning-up-moms-flooded-basement-not-enough-to-trigger-fmla-leave/. EEOC: leave, automatic termination policies A cautionary article: EEOC Cracks Down On Automatic Termination Policies Following Medical Leave, by Ingrid N. Culp and Pamela J. Abbate-Dattilo; http://www.fredlaw.com/articles/employment/empl_1007_inc_pja.html; If you cannot find this article, I have a copy in RTF format. FMLA, ADA: FMLA intermittent leave, diabetes medication side effects, tardiness, work breaks Illustrative; not controlling law. A diabetic employee’s medication side effects were frequent tardiness and frequent breaks for urgent urination and bowel movements. He worked in a call center and his condition interfered with the company’s responsiveness and productivity. He was fired and his FMLA violation claim failed because intermittent leave is for such toilet breaks aren’t what FMLA intermittent leave was intended for; it is intended for situations in which the employee is unable to attend work at all. Mauder v. Metropolitan Transit Authority of Harris County, No. 05-20299, 446 F.3d 574 (5th Cir., ); 2006 U.S. App. LEXIS 9306; 152 Lab. Cas. (CCH) P35,125; 87 Empl. Prac. Dec. (CCH) P42,361; 11 Wage & Hour Cas. 2d (BNA) 628; http://www.ca5.uscourts.gov/opinions%5Cpub%5C05/05-20299-CV0.wpd.pdf [enhanced lexis.com version]. [Note: However, this situation could well be an ADA problem, which would then involve the employer seeking expert medical information, conducting interactive accommodation discussions with the employee, and determining what reasonable accommodations, if any, could be made without undue hardship to the employer.] ADA; FMLA: fitness-for-duty exam doesn’t support "regarded as disabled" claim Illustrative; not controlling law, and this case illustrates that
“Fitness-for-duty” exams typically have been considered by courts to be a reasonable means to make that determination, and reasonableness can be shown when the employer can articulate legitimate, non-discriminatory reasons to question an employee’s ability to perform his or her duties. Charlene Wisby was a city emergency dispatcher, and as such had to have the ability to focus and concentrate at all times. Her FMLA application stated that she had a serious health condition that rendered her unable to perform the essential functions of her job. The employer required a medical examination to ascertain her fitness for duty to safely continue in her job, and the examiner’s report stated she was unable to do that. As you will recall, the ADA defines a person is as disabled if he or she is:
The purpose of the term “regarded” is to avoid erroneous perceptions or stereotypes that might disadvantage individuals with impairments not of a nature or extent to be an actual disability. In affirming the summary judgment dismissal by the trial court, the appellate court stated that her employer did not “mistakenly” believe that Wisbey had an impairment substantially limiting her ability to work because her condition admittedly and actually rendered her unable to do her job. Importantly too, the appellate court noted that a statement of unfitness from a physician indicates an actual condition and thus is not an erroneous perception or stereotype. Wisbey v. City of Lincoln, Nebraska, No. 09-2100 (8th Cir., 7/6/10); 2010 U.S. App. LEXIS 13684; http://www.ca8.uscourts.gov/opns/opFrame.html [enhanced lexis.com version]. Ill employee driving home, automobile accident, employer liability Illustrative; not controlling law. An ill employee was allowed to drive home from work after complaining of lightheadedness from aromas resulting from bug spraying the workplace. She caused a reared automobile crash while driving home and told the police officer she felt lightheaded before the accident. The person in the vehicle she struck sued the employer for negligence, and the appellate court ruled the case could proceed to trial. Bussard v. Minimed Inc., 105 Cal. App. 4th ,798, 129 Cal. App. Rptr. 2nd (2003); http://scholar.google.com/scholar_case?case=2370357006970841034&q=Bussard+v.+Minimed+inc.&hl=en&as_sdt=10000000002&as_vis=1 [enhanced lexis.com version]. FLSA: altering time sheets, manager held personally liable Illustrative; not controlling law. Chao v. Self Pride, No. 06-1203, No. 06-1369, 232 Fed. Appx. 280 (4th Cir., 5/17/10); 2007 U.S. App. LEXIS 11583; 12 Wage & Hour Cas. 2d (BNA) 1025; http://scholar.google.com/scholar_case?case=10926644626957549268&q=Chao+v.+SelfPride&hl=en&as_sdt=10000000002&as_vis=1 [enhanced lexis.com version]. Title VII: hostile work environment, “equal opportunity harasser”, sexual harassment, gender specific comments Illustrative; not controlling law. For many years there was a line of thinking that there was no liability for a hostile work environment caused by an “equal opportunity harasser”. A few years ago various circuit courts began to rule otherwise, and this case is a good reminder of that important change. Deborah Waechter, M.D. practiced with the Fairbrook Medical Clinic. John Kessel, M.D., owned and ran the clinic, and fancied himself to be a “shock jock” who made outrageous remarks to both male and female employees. Perhaps he thought that owning and operating the clinic gave him special privileges and exemption from anti-discrimination laws. Among others in the clinic, Dr. Waechter was the target of a number of remarks by Dr. Kessel having to do with her body, her sexual relationship with her husband, plus Kessler declared he prided himself in being a “breast man”. One of Title VII’s protections and prohibitions discrimination is misbehavior “because of sex”, the purpose being to “strike at the entire spectrum of disparate treatment of men and women in employment.” Proof of a violation by allowing a hostile work environment requires the employee to show the conduct complained of was unwelcome, was based on her sex, was sufficiently “severe and pervasive” to alter the conditions of her employment and created an “abusive work environment” that was attributable to the employer. The behavior complained of must be objectively hostile to a reasonable person under the circumstances. The clinic raised a Faragher/Ellerth defense, but the court rejected it, finding that the clinic did not exercise “reasonable care to prevent and correct promptly any sexually harassing behavior” because it never investigated complaints made several times by Waechter to Kessel (and on at least one other time to another manager) or took any other corrective actions. EEOC v. Fairbrook Medical Clinic, P.A., No. 09-1610, (4th Cir., 6/18/10); 2010 U.S. App. LEXIS 12503; 109 Fair Empl. Prac. Cas. (BNA) 907; http://pacer.ca4.uscourts.gov/opinion.pdf/091610.P.pdf [enhanced lexis.com version]. Also see Kaytor v. Electric Boat Corp., No. 09-1859-cv, (2nd Cir., 6/29/10); 2010 U.S. App. LEXIS 13318; based on similar facts, plus threats of physical violence; http://www.ca2.uscourts.gov/decisions/isysquery/502c49d3-f873-4765-a325-c48a5f89df06/1/doc/09-1859-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/502c49d3-f873-4765-a325-c48a5f89df06/1/hilite/ [enhanced lexis.com version]. ERISA: ambiguous or vague opinion on whether courts or plan administrator determines benefits Download 5.55 Mb. Share with your friends:
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