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

The 7th U.S. Circuit Court of Appeals has held that it is up to a jury to determine whether, in fact, a single instance of uninvited intimate physical contact may be sufficient to support a claim of hostile work environment. Berry v. Chicago Transit Authority, 7th Cir., No. 07-2288, August 23, 2010.

Cynthia Berry was hired by the Chicago Transit Authority (CTA) in 2002 as a carpenter. In January 2006, Berry was one of only two female employees among about 50 individuals working in Area 315, and was the only female of the 15 carpenters working there. During breaks, employees in Area 315 often played cards at a picnic-style table in a break area. During a morning break on January 17 or 18, Berry sat down at the table with three male employees. A fourth male employee, Carmichael, sat down straddling the bench, with his back toward Berry. According to Berry, Carmichael began rubbing his back against Berry’s shoulder. She jumped up, told him to stop, and moved to the other end of the table. Although another employee told Berry to get up, Berry remained seated. Berry alleges that Carmichael then lifted her from behind, grabbing her by the breasts, and rubbed her body against his before throwing her to the ground “with force.” She further alleges that Carmichael then pushed her into a fence.

On the following day, Berry reported the incident to one of her supervisors (Gorman), who – according to Berry – told her that she was a “pain in the butt” and that she could lose her job if she filed charges against Carmichael. Berry alleges that Gorman also said that he was “going to do whatever it takes to protect CTA.” However, Gorman reported the incident to a CTA EEO investigator, and collected statements from Berry and the others who witnessed the incident for review by the investigator. In the meantime, Berry called the police, reporting that she had “been attacked” at work. The police spoke to Berry, Carmichael and Gorman, and determined, based on that investigation, that Berry actually had been the aggressor. The CTA investigation ultimately resulted in the same finding. Berry contends that Gorman sabotaged the investigation to prevent the alleged harassers from being punished; she then filed a lawsuit alleging gender discrimination, hostile work environment, and retaliation. The lower court granted summary judgment in CTA’s favor, dismissing all of Berry’s claims. It dismissed the gender discrimination claim based on the absence of an adverse employment action, and the retaliation claim because Berry raised the issue only during the summary judgment process. The lower court also found that the hostile environment claim could not go forward because CTA took prompt and reasonable steps to discover and rectify the actions complained of by Berry.

On appeal, the Seventh Circuit upheld the dismissal of the gender discrimination and retaliation claims, but reversed the dismissal of the hostile environment claim. In order for that claim to survive summary judgment, Berry had to show that she was subjected to unwelcome conduct because of her sex, that the conduct was so severe or pervasive that it created a hostile environment, and that there was a basis for CTA’s liability. Berry argues that she experienced a hostile environment when Carmichael allegedly rubbed his body with hers; she also argues that Gorman’s dismissive comments to her about her complaints form the basis for CTA’s liability. The lower court had discounted Berry’s uncorroborated testimony on those issues when it found in CTA’s favor.

The Seventh Circuit spelled out the principles upon which it based its decision, specifically finding that personal knowledge or first-hand experience of a plaintiff can create a “disputed fact” that can only be resolved by a jury. According to the Seventh Circuit, the lower court improperly discounted Berry’s testimony, which was based on her own personal encounters with both Carmichael and Gorman and therefore, according to the Seventh Circuit, could create issues of material fact sufficient to preclude summary judgment. The Court further held that a single act can create a hostile environment if it is severe enough. Carmichael’s actions, as alleged by Berry, qualify as such an act. Notably, the Seventh Circuit also determined – based solely on Berry’s uncorroborated testimony of Gorman’s remarks – that a “reasonable factfinder” could come to the conclusion that CTA, through its manager, had “maliciously thwarted any legitimate investigation, and that CTA was therefore negligent or worse in responding to [Berry’s] report of harassment.”

The primary method for employers to avoid this situation is to be able to show thorough and detailed investigation training, and to ensure that managers’ responses to complainant/employees are consistent, objective, and by-the-book, in order to establish some defense to the uncorroborated testimony of such employees.
 

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The 5th U.S. Circuit Court of Appeal has held that an impaired individual may not be required to comply directly with her employer’s heightened reporting requirements associated with FMLA leave. Saenz v. Harlingen Medical Center, LP, 5th Circ., No. 09-40887, August 2, 2010.

In order to take a leave under the Family and Medical Leave Act, an employee must comply with reporting requirements codified in the Act and its regulations. Those regulations include a notice provision that requires the employee to provide information, as soon as practicable, that would allow the employer to recognize that the employee is suffering from a condition that may fit the FMLA’s definition of “serious medical condition.” In addition to the basic reporting requirement, an employer may also require employees to provide information during the leave, in order to allow the company to determine whether each such absence is associated with a serious medial condition.

Shauna Saenz was an employee of Harlingen Medical Center (HMC). In 2006, Saenz applied for - and was granted – intermittent FMLA leave for a seizure condition from which she suffered. During each of her absences, she complied with an additional requirement instituted by the company through its insurer (Hartford), that she report the reason for her absence within two days of that specific absence. Saenz was warned that her failure to report within two days could cause the loss of her FMLA status. Between July 24 and December 26, 2006, Saenz was absent on nine different occasions, seeking and receiving approval within two days of each absence, consistent with HMC’s heightened reporting requirement.

On December 25 and 26, Saenz missed work due to seizures, and reported appropriately. However, on December 29-31 and January 3-4, 2007, Saenz again missed work. This time, her absence was due to a psychological condition that ultimately required her to be hospitalized. Saenz’ mother, Rhonda Galloway, contacted Saenz’ supervisor and HMC’s “house” supervisor about the situation, letting them know that Saenz would not be reporting to work. Notably, the house supervisor visited Saenz in the emergency room. Saenz subsequently was admitted to a behavioral clinic until January 2, after which she went to Galloway’s home to recover. Galloway then called Saenz’ supervisor to report Saenz’ status and to make HMC aware that Saenz would not be reporting to work. In total, Saenz missed work on December 29-31, and January 3 and 4 due to her illness.

On January 9, Saenz called Hartford to report her diagnosis (bipolar disorder and depression) and to ask for intermittent leave associated with that condition. Saenz then received a letter dated January 18, 2007 from HMC informing her that her employment was terminated due to non-FMLA approved absences. The letter explained that Saenze should have reported with two days after her release from the hospital on January 2, and that her failure to do so created unexcused absences.

Saenz sued HMC, claiming violation of her rights under the FMLA. The district court granted summary judgment in favor of HMC, but that decision was reversed by the Fifth Circuit. The Court reviewed two issues on appeal: first, whether Saenz was required to comply with HMC’s internally created heightened FMLA notice requirements, and whether Saenz provided adequate notice of her situation under the basic reporting requirements of the FMLA.

First, the Court found that Saenz provided sufficient information for HMC to realize that she was requesting FMLA leave, and did so within two days of her illness. Saenz’ mother contacted HMC to inform them of the new illness, and an HMC supervisor visited Saenz in the emergency room and saw her condition first-hand. HMC was not left to wonder whether Saenz was suffering from a serious health condition, or whether FMLA might apply. The Court found that because a jury could determine that Saenz – through Galloway – had complied with HMC’s heightened reporting requirement, dismissal of Saenz’ claim on summary judgment was inappropriate. The Court then went further, and said that even if Saenz complied with HMC’s heightened standard, HMC would be entitled to summary judgment if Saenz failed to comply with the actual FMLA reporting requirement. However, because the FMLA requires only that an employee contact the employer to state that leave is needed “as soon as practicable” under the facts of the particular case, the Court held that Saenz did, in fact, meet this low threshold through Galloway’s calls to HMC in which she described both Saenz’ symptoms and the significant treatment that Saenz was receiving.

Employers should recognize that while a company is allowed to establish heightened reporting requirements related to FMLA leaves, compliance with those requirements should be determined in light of the specific facts and circumstances of the employee’s situation.
 

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The 6th U.S. Circuit Court of Appeals has held that a company that transferred a pregnant employee out of a welding job and into a light duty tool room job without first undertaking an objective evaluation of the employee’s ability to do the welding job may be liable for violation of the Pregnancy Discrimination Act (PDA) or the Americans with Disabilities Act. Spees v. JamesBuilt, LLC, 6th Circ., No. 09-5839, August 10, 2010.

Heather Spees filed claims against her employer, James Marine, Inc. (JMI) alleging that the company violated Title VII’s Pregnancy Discrimination Act and the Americans with Disabilities Act when it moved her from a welding job into a light duty tool room job, and when it ultimately terminated her employment.

Spees became pregnant shortly after being her job as a welder with JMI in 2007. This was her third pregnancy; her daughter was born in 1999, but Spees suffered a miscarriage in 2005. Spees informed her brother (Gunder), who also worked at JMI as a foreman, and her direct supervisor (Milam), of her pregnancy. Gunder believed that the welder duties – especially the lifting and pulling - should not be performed by Spees while she was pregnant. Milam was concerned that, because of Spees’ “complications with other pregnancies,” Spees should not be around “the chemicals, the welding smoke, [and] climbing around on some of the jobs.” Although Spees’ doctor opined that the welding job would be “no problem” and released her to work without restrictions, Milam asked Spees to obtain a second note from the doctor limiting her to “light duty,” which Spees did. Milam then transferred Spees to the company’s tool room, at the same pay and benefits.

Spees worked the daytime shift in the tool room for a week, but then was transferred to the night shift, which conflicted with Spees child-care schedule. A month later, Spees transferred her medical care to another obstetrician, who discovered that Spees had a pregnancy-related medical condition that required total bed-rest. When Spees provided documentation to the company of that fact, Gunder told her that she “was being fired for being pregnant,” and because she had not worked at JMI long enough to have earned FMLA or other additional medical leave.

The district court granted summary judgment for JMI on all of Spees’ claims, holding that the transfer did not constitute the required “adverse employment action” under the PDA, and that JMI’s reason for firing Spees – the fact that her doctor placed her on full bed-rest, and she had no additional available medical leave – was not a pretext for discrimination. The Sixth Circuit reversed the decision regarding the transfer, but upheld the dismissal of the termination claims.

According to the Sixth Circuit, the record in this case included evidence to suggest that Spees’ transfer was a materially adverse change in her employment status, in spite of the fact that her salary and benefits remained the same. The work required fewer qualifications (and therefore, may be viewed as lower status), was “more boring” for Spees than welding had been, and was night-shift work that interfered with her ability to raise her child. Further, Spees was able to present sufficient evidence to allow a jury to find that her pregnancy was a “motivating factor” in her transfer to the tool room job: Milam expressed concerns (which he believed were based on “common sense”) that the fumes would create an unsafe condition for her; and Gunder stated that he did not want to her weld because “she was carrying my niece.” Neither of these managers requested an analysis of the welder position for review by Spees’ doctor, nor did Spees seek the transfer before it was made. In sum, a reasonable jury could find that JMI’s decision that Spees was unable to weld was due to her pregnancy, thereby supporting her PDA claim.

The Sixth Circuit agreed, however, that Spees’ inability to work at all during her period of bed-rest was a legitimate business reason for her termination. That restriction came through no action on the part of JMI and was a decision made solely by Spees’ doctor. That order for bed-rest, coupled with the fact that Spees had no available leave time, was a legitimate basis for the termination.

The Court’s opinion emphasizes the point that an employer cannot make a decision based on suspicion, assumption, or subjective information – even if that decision seems to be in the employee’s best interest. Here, the managers’ view that Spees would be unable to perform her job as a welder because of her prior miscarriage led to the Court’s holding that Spees’ transfer may have been motivated by her pregnancy. That holding in turn resulted in a decision to allow a jury to determine the company’s level of liability for that act.
 

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The Americans with Disabilities Act allows an employer to require an employee to undergo a Fitness For Duty Examination (FFDE) when health problems have had a substantial or injurious impact on an employee’s job performance. Such examination must be job-related and consistent with business necessity. The 9th U.S. Circuit Court of Appeals has held – as an issue of first impression for that Court - that an employer also can require an employee to undergo such exam as a “preemptive” measure against potential dangerous or harmful conduct, especially when the employee is engaged in dangerous work. Brownfield v. City of Yakima, 9th Circ., No. 09-35628, July 27, 2010.

Oscar Brownfield began working as a police officer for the Yakima Police Department (YPD) in Yakima, Washington, in 1999. In 2000, he suffered a closed head injury in an off-duty car accident, which caused symptoms that included reduced self-awareness. He returned to work and, over the following three years, received positive performance reviews and several commendations.

In 2004, Brownfield began to complain to his supervisor about another officer, Officer Dejournette, alleging various “shortcomings” on Dejournette’s part, and began to document those perceived failings. In May 2005, after he was reprimanded for a performance issue, Brownfield forwarded his notes to the Chief, Sam Granato. During a subsequent meeting among Brownfield and two of his supervisors, Brownfield used profane language, and left the meeting after being asked to stay. Brownfield was temporarily suspended for insubordination after that incident.

In September 2005, four additional incidents occurred involving Brownfield. First, he engaged in a “disruptive argument” with another officer; second, Brownfield himself reported that he felt himself “losing control” during a traffic stop when a young child was “taunting him” during the stop; third, YPD received a domestic violence call from Brownfield’s estranged wife after Brownfield allegedly stuck her by closing a door on her; and fourth, a YPD officer reported several statements made by Brownfield including a statement that “It doesn’t matter how this all ends.” Those incidents, taken together with the May incident, led the YPD to send Brownfield for an FFDE.

The diagnosis offered by Dr. Decker, who conducted the FFDE in October 2005, was Mood Disorder which manifested itself in “poor judgment, emotional volatility, and irritability,” and was related to Brownfield’s 2000 head injury. Dr. Decker determined that Brownfield was unfit for police duty and was permanently disabled by the condition.

Brownfield subsequently got a second opinion from Dr. Mar, who agreed with Decker that Brownfield was unfit for duty, but believed that Brownfield’s condition might improve with treatment. In December 2006, Mar reported that Brownfield was improving and could return to duty, but at an unspecified date. YPD scheduled another FFDE, this time with Dr. Ekemo (Brownfield refused to return to Decker). Although Brownfield attended an initial session with Ekemo, he refused to return to complete the evaluation, and his employment ultimately was terminated.

Brownfield sued in federal court alleging, among other claims, that the YPD had violated the ADA by requiring him to submit to the FFDE. The district court granted summary judgment in favor of the City, and Brownfield appealed. The lower court’s dismissal was upheld by the Ninth Circuit.

The Ninth Circuit found that the ADA”s directive that a medical exam be “job-related and consistent with business necessity” was quite high, but that the ADA does not require an employer to wait until a perceived threat becomes real or to allow questionable behavior to result in injuries before sending an employee for an FFDE, particularly when the employee is engaged in dangerous work. In interpreting “business necessity,” the Court cautioned that it should not be confused with mere expediency, and that using medical exams to harass employees or to “fish” for non-work-related medical issues could, in fact, violate the ADA. The behavior that triggers such FFDEs cannot be merely annoying; rather, there must be some objective reason to doubt whether the employee can perform his or her job-related functions.

Because the employer bears the burden of demonstrating a job-related reason for an FFDE, employers should understand the relevance and the parameters of the concept of “business necessity,” especially when used as a basis for a preemptory FFDE. Clear, concise, and objective documentation of the incidents that form the basis of the reason for that exam can help to avoid, or to effectively defend against, an employee’s claims under the ADA.
 

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