Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

The Family and Medical Leave Act (FMLA) was designed, in large part, to protect the medical needs of employees with serious health conditions. The Department of Labor regulations, which provide guidance to both courts and companies, were revised on January 1, 2009, but continue to require that an employee provide notice of the need for leave associated with a serious medical condition. In a recent case, decided under the “old” version of the DOL regulation, the 8th U.S. Circuit Court of Appeals upheld summary judgment in favor of an employer who had demoted an employee after the employee missed work for a claimed “nervous breakdown.” Talmadge Scobey v. Nucor Steel-Arkansas, 8th Cir., No. 08-1192, Aug. 25, 2009. In that case, an individual sued his employer for interference with and retaliation for exercise of his FMLA rights, claiming that he was demoted because of his attempt to obtain leave under that Act.

Talmadge Scobey began working at Nucor Steel in 1998. Until 2005, Scobey worked as a “ladle man” in Nucor’s Hickman, Arkansas facility. The position, which paid over $80,000, was dangerous and demanding, and included handling thousands of pounds of molten steel.

In February, 2005, Scobey accumulated two unexcused absences. Under the company’s attendance policy, an employee could be terminated after four unexcused absences. On Saturday, April 9, 2005, Scobey called his supervisor, ostensibly to ask for time off work for the funeral of his ex-father-in-law, but was unable to reach that supervisor. Scobey did not appear for work on April 10. On April 11, he called and told his supervisor that he had “suffered a nervous breakdown,” and was “through with” the company, and then hung up with no further explanation. During that call, Scobey’s speech was slurred and his supervisor “had the impression” that Scobey was intoxicated. Scobey did not show up for work on April 12 or 13. On April 14, he called Blakemore, a supervisor and a friend of Scobey’s, and told him that he couldn’t remember the past four days and “wanted some help.” On April 15, Scobey visited a doctor, who diagnosed him with hypertension. On April 20, Scobey was assessed by Nucor’s EAP provider, at the company’s suggestion, and entered an outpatient alcohol treatment program, which he left before completing.

On May 20, Scobey met with Nucor’s plant manager who, rather than terminate Scobey’s employment, suspended Scobey for three days and demoted him to an entry-level position. After two weeks in that position, Scobey stopped coming to work, and subsequently sued the company for violation of the FMLA. The district court dismissed both claims on summary judgment, and the dismissal was upheld by the Eighth Circuit on appeal.

In order to request leave under the FMLA, an employee does not have to reference the Act. However, under both the old and the recently amended regulations, the employee must do more than merely call in sick to trigger an employer’s duty to act under the FMLA. An employee has an affirmative duty to indicate both the need for and the reason for the leave, and should let the employer know how long the anticipated leave might be. Scobey’s case turned on the issue of whether he provided to Nucor a sufficient and timely notice of a serious health condition for his absences from April 10-13. According to the Eighth Circuit, he did not, and was therefore estopped from claiming violation of the FMLA. The Court made this decision based primarily on the fact that Scobey’s notice to Nucor did not include sufficient information to adequately apprise the company that Scobey’s condition might be protected by the FMLA.

In his April 11 call, he informed his supervisor that he “was through” with the company – notice of quitting, not notice of the need for medical leave. He was intoxicated enough to forget the next four days, and although absences for the treatment of alcoholism are protected under the FMLA, absences caused by the use of alcohol are not. Scobey argued that his inebriated state was a manifestation of underlying depression, which should have been recognized by the company. The Court found, however, that based upon Scobey’s apparent intoxication, his prior absences, and his shifting explanations of the reason for his absence, his phone calls were not adequate to apprise Nucor that the FMLA might apply.

Having failed to provide sufficient notice to trigger the FMLA, Scobey was unable to support his FMLA claim. However, employers should not read this case as blanket permission to ignore incomplete or non-specific information regarding an employee’s health condition. Had the facts been slightly different, and had Scobey suffered from depression in the past of which Nucor had been aware, or had Scobey previously provided doctors’ notes regarding the status of an ongoing depressive episode, a question of fact may have existed regarding whether Scobey’s calls constituted adequate notice of the need for FMLA leave. Employers must recognize that these cases are very fact specific, and should review such situations carefully before making a decision to refuse a request for FMLA leave.
 

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An employee who takes leave under the Family and Medical Leave Act (FMLA) is entitled - in most instances - to be reinstated to his or her former position, with equivalent pay and benefits, upon expiration of that leave. However, an employee is not entitled to a position or other benefit of employment to which he would not otherwise be entitled simply because he is on FMLA leave. It is on that basis that the 7th U.S. Circuit Court of Appeals upheld the termination of a company’s Vice President of Information Technology, even though the termination occurred while that individual was on an FMLA leave. Daugherty v. Wabash Center, Inc., 7th Cir., No. 08-3104, August 14, 2009.

During his work history with Wabash, a not-for-profit agency serving individuals with developmental disabilities, Michael Daugherty worked his way from maintenance assistant to VP of the agency’s IT group. In 2006, Daugherty became involved in “e-mail wars” with a number of Wabash employees. During the same time period, he was accused of poor management techniques by the employees of an affiliated company for whom he acted as Chief Information Officer. At a meeting on June 19, Daugherty received a written reprimand for both issues. Daugherty agreed with the substance of the discipline and volunteered to draft a corrective action plan for himself. Daugherty was then told that permission for his upcoming month-long vacation was being revoked because of pressing company business. At that, Daugherty left the meeting and went to visit his doctor. He returned to Wabash to request FMLA leave, providing a note from his doctor that he was to be “off work for 2 weeks due to medical illness.” Although his FMLA paperwork only stated that he had been “placed under a tremendous amount of stress” at work, Daugherty was granted two weeks of leave under the FMLA.

During Daugherty’s absence, Wabash discovered that Daugherty had used the company’s credit card without authorization to order items that were delivered to his home. In addition, on June 30, Wabash’s VP of Finance discovered that certain e-mail correspondence with Daugherty was missing from his computer. Based upon suspicions that Daugherty was remotely accessing (and possibly sabotaging) the company’s computer system, outside experts were brought in to investigate. Upon initial investigation, it was determined that Daugherty had failed to back-up servers, and that the company’s IT infrastructure (Daugherty’s responsibility) was deficient.

Upon his return on July 3, Daugherty informed the company that he was taking additional medical leave. At that point, management asked him to sign a new corrective action plan and to return his keys and passwords. Daugherty refused, saying that such action would be “working,” and he was not to be working during leave. He also refused subsequent requests for the keys and information.

On July 31, a forensic expert found that Daugherty had deleted over 5,000 files from his computer on June 19, the day of the original disciplinary meeting. On August 9, Wabash terminated Daugherty’s employment, citing the missing files, violation of purchasing protocols, poor IT practices, failure to turn over keys, and poor management style. Daugherty filed suit in September 2006, claiming that his termination was in violation of the FMLA. The district court granted summary judgment in favor of the company. That decision was affirmed on appeal by the Seventh Circuit.

Daugherty argued that Wabash was required to reinstate him after his FMLA leave and that he could not be fired before that reinstatement. However, FMLA only entitles an employee to the same position to which he would have been entitled had he not gone on leave. Because the information discovered by Wabash during Daugherty’s leave would have justified his termination had the leave not been taken, there was no reason to wait until Daugherty’s return in order to fire him. Because Daugherty acknowledged the fact that he had violated company policies, there was no disputed fact that his actions factually supported the termination.

Once again, a company’s complete investigation – here, involving an outside consultant - and full and contemporaneous documentation of the results form the basis of a successful legal defense. Employers should recognize that in this atmosphere of layoffs, restructurings, and increased litigation, those two factors have continued to be the critical elements of an effective defense to an employee’s claims of discrimination and illegal treatment.
www.employmentlawmatters.net/uploads/file/FMLA - Daugherty.pdf

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When an individual claims to have been racially harassed by co-workers, he or she must show that the employer was negligent either in discovering or remedying the harassment. An employer can avoid liability for co-worker harassment if it takes prompt and appropriate remedial action that is likely to prevent the harassment from recurring. Recently, the 7th U.S. Circuit Court of Appeals analyzed specific actions taken by a company after a noose was found hanging in a workplace, and found those actions to have been sufficient to uphold summary judgment in the company’s favor. Porter v. Erie Foods International, Inc., 7th Cir. No 08-1996, August 7, 2009.

Tremeyne Porter was the only African-American working on the third shift in Erie Foods’ Rochelle, Illinois facility. During his work shift on August 12, 2004, Porter saw a noose, made out of white nylon rope, hanging from a piece of machinery. An on-site supervisor, Santos, directed another employee to take down the noose, and then discussed the matter with Porter. She asked Porter if he knew who was responsible, but he denied knowing who the perpetrator was. Santos then tacked the noose to a bulletin board in her office, which was within sight of individuals passing that office. She later testified that she did so to remind her to follow up on the issue.

Early the next morning, Santos followed up with the first shift supervisor – asking if he had any information about the noose – and then informed her own supervisor (Jacobs) and a member of the human resources department (Goffinet) about the matter. Concerned, Goffinet immediately spoke to his own supervisor about the matter. That evening, Goffinet held a group meeting with Santos, Porter, and the entire third shift, stating that workplace harassment would not be tolerated, and reiterating the company’s anti-discrimination policy. Subsequently, Goffinet spoke privately with nine of the 15 third-shift workers, and held an extensive discussion with Porter. Porter told Goffinet that he “would not say” who made the noose, because he didn’t want anyone to be fired.

Around this same time, another co-worker, Alverez, showed a noose to Porter and to some other employees; Alverez then stated to Porter that if Porter showed the noose to anyone, he would “look for him,” which Porter interpreted as a threat to him and to his family. Shortly after, Goffinet followed up with Porter, asking for additional information on the reported harassment. During that meeting, Porter mentioned that he had been threatened by another employee, but would not identify that person. Goffinet then asked whether Porter wanted to change shifts. Porter declined the offer. Santos also continued to follow up with Porter during subsequent shifts, asking whether he knew who hung the noose, and asking first and second shift supervisors if they had obtained any further information.

On August 14, Porter filed a police report about the nooses, including co-worker names, but stated that he did not want the police to visit the workplace or the individuals – he simply wanted the harassment to stop. On August 16, a locker fell on Porter while he was changing into his work clothes. Porter was hit by the falling locker, but suffered no injury. After Porter reported the incident to Santos, Goffinet had the lockers bolted to the wall within a day.

On August 19, Porter quit his job. He ultimately filed a lawsuit alleging race-based harassment, constructive discharge, and retaliation. The district court granted summary judgment in Erie’s favor. That decision was upheld on appeal by the Seventh Circuit, based largely on the actions taken by Erie during the brief period of Porter’s employment.

Because Title VII is not a “strict liability” statute, an employer can defend against allegations of co-worker harassment by showing prompt and effective response to reports of such harassment. In this case, the Court determined that the steps taken by Santos and Goffinet show that they took the issue seriously and made a reasonable effort to bring the harassment to an end. (However, the Court also labeled Santos’ unfortunate placing of the noose on her bulletin board as “ill advised,” and found that it may have indicated a “lack of recognition of the powerful message of racial hatred that a noose evokes.”) The facts that both of these managers informed their own supervisors of the incident, made attempts to find out who was responsible, reminded employees of company anti-discrimination policies, and followed up with Porter, formed the basis of prompt and effective remedial action sufficient to defend against Porter’s claims of co-worker harassment. Further, because an employee has a duty to reasonably “avail [himself] of the employer’s preventive or remedial apparatus,” Porter’s failure to fully report or cooperate in the investigation of the harassing incidents undermined his claims. According to the Court, an employee’s subjective fears of confrontation or retaliation does not alleviate the duty to alert an employer to alleged harassment.

The important point for employers in this case is the Court’s statement that “In assessing corrective action, our focus is not whether the perpetrators were punished by the employer, but whether the employer took reasonable steps to prevent future harm.” Those “reasonable steps” will differ, depending on the specific facts of the situation being addressed. However, the actions taken by the company in this case should stand as a minimum checklist of a “prompt and effective” reaction to incidents of co-worker harassment.
 

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The Occupational Safety and Health Administration (OSHA) may issue citations for safety violations at construction sites.  Further, at those construction sites, OSHA may hold one employer responsible for the safety violations of other employers if the initial employer could reasonably be expected to prevent and abate the violations, based on some supervisory authority or control over the worksite.  OSHA takes such actions under its “multi-employer citation policy.”  Recently, in a logical extension of that general policy, the Occupational Safety and Health Review Commission (OSHRC) reversed its own initial determination and upheld a citation against a general contractor for a safety violation that the contractor did not commit and to which none of the contractor’s own employees were exposed.   Sect. of Labor v. Summit Contractors Inc., OSHRC, No. 03-1622, 7/27/09.

In that case, Summit Contractors was the general contractor on a college dormitory construction site in Little Rock, Arkansas in June 2003.  On June 18 and 19, an OSHA compliance officer observed and photographed employees of a sub-contractor, All Phase, working on scaffolds without fall protection.  Summit had four employees at the site on those days, each of who had oversight responsibility for subcontractors on the project, including All Phase.  Summit’s contract with the owner of the project assigned to Summit the “exclusive authority to manage, direct and control” the construction, and required compliance with “applicable laws.”  Summit’s contract with All Phase permitted Summit to terminate and remove All Phase if it disregarded OSHA regulations.  Based on those facts, OSHA issued a “serious” citation to Summit for the violation.   

An administrative judge upheld the citation, and Summit contested that decision.  An initial determination by OSHRC precluded the Secretary of Labor from issuing the citation to Summit as a “controlling employer” for a violation created by another employer Summit’s own employees were not exposed to the hazard.  The Secretary appealed the holding to the 8^th U.S. Circuit Court of Appeals, which rejected that conclusion and remanded the matter for “further proceedings.”  On remand, the OSHRC reversed its initial determination, and concluded that Summit was a “controlling employer properly cited under the multi-employer citation policy for violative conditions it did not create and to which none of its employees was exposed.”  The reversal was based largely on the fact that although Summit was aware of the unsafe conditions with respect to the scaffolding, it failed to inform All Phase of that safety violation.  That inaction was determined to be a failure to take the required “reasonable steps and measures necessary to obtain abatement,” and was deemed sufficient to support OSHA’s designation of a “serious” violation.

The lesson is clear: in addition to an employer’s general duty to comply with OSHA’s safety regulations, any company deemed to have supervisory control over a worksite - especially if that responsibility specifically includes the power to correct safety and health violations - must exercise reasonable care to prevent and detect violations on the site, whether or not those violation affect the company’s own employees.  To do otherwise risks liability for the penalties associated with citation by OSHA.

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