Human resources & employment law cumulative case briefs

Tenth Circuit analysis and action:

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  Restated the test for a disability under the ADA
  
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    “[a] plaintiff must prove that she suffers from a physical or mental impairment that substantially limits one or more major life activities",
    
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    which requires a plaintiff to show that:
    
    1. 
       she had a recognized "impairment;" and
       
    2. 
       the impairment substantially limited one or more of her major life activities.
       
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  There was no dispute that the migraines were an "impairment."
  
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  Thus the issue was whether the migraines "substantially limited" the plaintiff's major life activities.
  
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  She claimed that the migraines affected her ability to "work," to "care for herself," and to "sleep."
  
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  Her employer approached form the position that she was not substantially limited in her ability to "care for herself":
  
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    she admitted she often got up and went to work on days that she had the migraines – the appellate court quoted from her deposition where she testified that she got up, got dressed, got washed, and drove to work.
    
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    she countered that on days when she suffered migraines, even if she went to work, she "crashed and burned" when she got home, taking medication and falling asleep almost immediately, claiming that her migraines limited her ability to care for herself in the evening, as she was "compelled" to go to sleep, due to her migraine medication.
    
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  The Tenth Circuit rejected her "crash and burn" argument:
  
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    an allegation of "sleep disturbance" was not sufficient, in and of itself, to prove that the plaintiff was disabled:
    
    1. 
       she had failed to submit evidence of how early she went to bed, how long she slept, or what activities of daily living she was not able to do on those nights;
       
    2. 
       because everyone sleeps each night and no one can care for themselves while sleeping, she lacked evidence to show how her need to "crash and burn" actually "compared to the average person's ability to care for herself in evenings after work"; and
       
    3. 
       finally, "many non-disabled people have nightmares or disturbed sleep patterns."
       
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    and thus the holding was that she had not shown that her migraines impeded her ability to sleep or "care for herself."
    
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    Next, the appellate court considered whether the migraines had substantially limited her plaintiff's ability to "work" in light of her admission that she only suffered from migraines when she was working for one particular doctor, which defeated her claim:
    
    1. 
       she argued that the Americans with Disabilities Amendments Act of 2008 (ADAAA) allowed her to establish a disability in "working," even if all she could show was that she could not perform one job;
       
    2. 
       the appellate court disagreed and said that to be disabled in the major life activity of "working," "an employee must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes . . . . " It looked to the Equal Employment Opportunity Commission's (EEOC) regulations (prior to the May 2011 amendment), which made clear that one has to be unable to perform a "broad class of jobs" in order to be disabled. While this language was eliminated in the EEOC's May 2011 regulations, there was no indication that the new regulations were to have retroactive effect, and, therefore, the court applied the earlier version of the regulations. As a result, the court dismissed the plaintiff's ADA claims.
       

[Note: This definitely is a case to discuss with your experienced human resources and employment law attorney if you are confronted with a similar situation.]

Whistleblower: Sarbanes-Oxley (SOX), Racketeer Influenced and Corrupt Organizations Act (RICO); adverse employment action, retaliation
Illustrative; not controlling law. The 7^th Circuit Court of Appeals ruled that the that alleged retaliation under SOX could provide a predicate act for racketeering activity under RICO. That ought to be sufficient description to alert most readers that this is a case primarily of interest to litigators, and thus it will not briefed here.
DeGuelle v. Camilli, No. 10-2172 (7th Cir., 12/15/11); 2011 U.S. App. LEXIS 24868; http://www.ca7.uscourts.gov/tmp/ES0NOTXI.pdf [enhanced lexis.com version].
Social Media: employer posted to employee’s Facebook and Twitter accounts, blog, account ownership issues; legal grounds alleged in litigation: Lanham Act, Stored Communications Act, and state statutory privacy claim and common-law privacy claim
Illustrative; not controlling law. The employer decided to use social media for marketing purposes. One major issue is who owns the accounts, the employer or the employee, and for what purposes? There are few guidelines in this developing area, but perhaps the prudent approach would be to use the same policies applicable to other company communications, such as computers, telephones, vehicles, credit cards, and other similar more familiar things, and make sure those policies are fairly and regularly enforced. This is a decision of a trial court, so it is controlling law only for the parties to the litigation. However, the judge’s reasoning may be helpful to you and your employment law attorney in analyzing how to handle such situations.
Maremont v. Susan Friedman Design Group, LTD, No. 10-07811 (N.D. Ill. Dec. 7, 2011); http://pub.bna.com/lw/10c07811.pdf [enhanced lexis.com version].
Jill Maremont worked as Director of Marketing and Public Relations for Susan Friedman Design Group, LTD (SFDG). Over time she became recognized for her talents in the local design profession and had also developed a substantial personal following on Twitter.
SFDG’s website was part of its social media marketing campaign on which Maremont created a blog. She also created a Twitter account using the firm's computer at the firm's office. The trial judge noted that:

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  the parties apparently did not dispute that Maremont's "personal Twitter and Facebook accounts were not for the [firm's] benefit", nor
  
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  did they dispute that Maremont created a "personal following on Twitter and Facebook for her own economic benefit, and
  
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  if she left her employment at [the firm], she would promote another employer with her Facebook and Twitter followers."
  

Maremont was seriously injured in a car accident, and while hospitalized she learned that:

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  the firm had updated her Facebook page and
  
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  some of the posts promoted the firm, and
  
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  the firm had accessed her Twitter account and used it to post promotional tweets.
  

Establishment and Free Exercise Clauses of the First Amendment, ministerial exemption, lay teachers and others, alleged ADA violation

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  The ministerial exception bars ministers from bringing employment discrimination claims and lawsuit suits against their religious employers.
  
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    That bar applies only to employment discrimination suits brought by ministers, not employment discrimination suits brought by other lay employees.
    
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    When determining whether the ministerial exception will apply to a given employment decision, religious employers must analyze whether the employee in question qualifies as a minister, and this decision discusses in detail the process and the required factors to consider .
    
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  Further, this bar may or may not apply to other types of suits brought by ministers against their religious employers. Thus, it remains important for religious employers to properly evaluate all employment decisions for potential legal exposure.
  

Because the Court decided this case on constitutional grounds, it did not proceed to decide the underlying ADA issues.

1. 
   he showed sufficient evidence that:
   
   1. 
      he met the ADA disability definition,
      
   2. 
      was qualified to perform the essential functions of the job, with or without accommodation, and
      
   3. 
      was fired because of his disability: difficulty caring for himself, such as showering, eating, doing laundry, getting dressed, and other “major life activities”. Pathfinder’s contention that Carter’s diabetes could be controlled by diet and medication was rejected by the appellate court:
      

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  though recognizing that “if the impairment is corrected . . . it does not substantially limit a major life activity”,
  
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  the court also noted that “hypothetically controllable disabilities are not automatically to be judged in their corrected state”.
  

2. 
   The appellate court found he was qualified to perform the essential functions of the job:
   
   1. 
      A “reasonable accommodation” might be part-time work, and the court found that
      

1. 
   Further, the court found that the modified work schedule was a reasonable accommodation that he was able to perform on the necessary shift consisting of 24 hours.
   
1. 
   Pretext: A reasonable jury could find that:
   
   
   

FMLA: invalid certification, adverse employment action; evidentiary requirement, retaliation not proved

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  requesting a second opinion from a different provider at the employer’s expense, or
  
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  getting permission from the employee to clarify or authenticate questionable certification with the healthcare provider.
  

1. 
   To be eligible for up to twelve weeks of unpaid leave each year, one essential requirement is a “serious health condition” precluding the employee from performing his or her job.
   
2. 
   Employers are prohibited from discriminating or retaliating against an employee exercising FMLA rights.
   
3. 
   Evidence consists of each of the following elements:
   
   1. 
      The initial burden of proof on the employee to present a prima facie case of
      
      1. 
         eligibility for FMLA leave,
         
      2. 
         actually taking the leave, and
         
      3. 
         that an adverse action was taken against the employee.
         
   2. 
      The burden of going forward (not a burden of proof – ultimately that is always on the employee) then shifts to the employer to provide a legitimate business reason for its action.
      
   3. 
      Then the employee must successfully carry the burden of proof to successfully prove:
      
      1. 
         that the employer’s proffered reason is actually a pretext, which means that the employee must either show that the proffered reason had no factual basis,
         
      2. 
         that the given reason did not actually motivate the action, or
         
      3. 
         that such reason was insufficient to warrant the action.
         

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  In July 1999Jami Coffman started working for Ford Motor Company.
  
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  During 2004 she was absent frequently for what she claimed were health problems.
  
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  Though she provided medical documentation for many of those absences, she failed to provide valid and timely information for ten periods of absence within an eight month period.
  
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  That failure resulted in winding up in the company’s disciplinary process under a collective bargaining agreement, and ultimately her employment was terminated.
  
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  That adverse employment action occurred shortly after she had been diagnosed with sleep apnea.
  
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  Ford’s written policies for FMLA leave required that it would receive documents to be completed by a physician within 15 days, and specifically stared out that incomplete certification could cause absences to be considered to be “absence without leave,” which could lead to adverse employment action up to termination.
  
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  Her medical documentation submitted consisted of two forms that stated two divergent diagnoses for the absences, and neither included supporting information. Also, the signatures on the documents differed markedly from signatures of the same doctors on medical documentation previously submitted by her.
  
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  Ford sought clarification by asking her to request medical records to support the certifications.
  
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  Her physician provided only a single document that included merely a list of medications. This not only failed to support the initial certification, rather, it created new contradictions.
  
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  Ford took no further action, considered the absences as unexcused, and ultimately terminated her employment.
  

She then sued Ford on the grounds that her termination was the result of her request for FMLA leave. The district court granted summary judgment in favor of the company, and the Sixth Circuit upheld that decision, holding that she failed to prove that Ford’s reason for the termination was pretext for FMLA retaliation:

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  She contended that Ford improperly classified her as AWOL.
  
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  However, the appellate court found that although FMLA certifications containing all required information are presumptively valid, an employer can rebut that presumption by demonstrating that the certification is invalid, contradictory, or of an otherwise suspicious nature.
  
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  As seen above, the initial certifications submitted were medically contradictory and the inconsistent signatures created suspicion.
  
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  Ford then took the additional step of requesting further information in an attempt to clarify the contradictory nature of those certifications, but that supplemental information actually increased the confusion, thus supporting the company’s decision to deny FMLA leave for the absences.
  

Privacy: unisex restroom, surveillance camera, invasion of privacy, mental state of the employee