By: Ogletree Deakins

According to the 4th U.S. Circuit Court of Appeals, evidence of previously unknown poor performance is sufficient basis for an employee’s, even if that evidence is discovered during that employee’s Family and Medical Leave Act (FMLA) leave.Mercer v. The Arc of Prince Georges County, Inc., 4th Cir., No. 13-1300, unpubl., July 11, 2013.

Adesina Mercer held the full-time position of Finance and Benefits Coordinator for The Arc of Prince George’s County, Inc. (“The Arc”), a private non-profit organization, from July 2004 until her discharge in March 2011. Mercer’s job responsibilities included “applying for and processing initial applications for benefits for [clients] under the Food Stamp Program and Social Security,” as well as assisting with renewals and redeterminations of those benefits for those clients.

In the spring of 2009, Mercer was on a medical leave. Co-workers who were performing Mercer’s responsibilities during her absence discovered that many of The Arc’s food-stamp eligible clients were no longer receiving benefits. When Mercer returned from leave, she was directed to assure that the necessary paperwork was completed to assure benefits for those individuals.

In October 2010, Mercer received her annual performance review, during which she was rated as “satisfactory” in 13 of 14 categories, and was rated “above average” in the remaining category. However, in November and December of that year, The Arc learned that certain food-stamp eligible clients still were not receiving benefits. Mercer again was instructed to correct the situation.

In January 2011, Mercer was injured in an automobile accident and requested (and was granted) FMLA leave from January 31 until February 22. Once again, while co-workers were performing Mercer’s job duties, they found many more clients who no longer were receiving benefits due to Mercer’s failures to submit renewal or redetermination paperwork over a period of time prior to her FMLA leave.

Upon Mercer’s return from medical leave, she was placed on administrative leave pending the completion of an investigation. At the end of the 5-day leave, Mercer took additional FMLA leave until March 14, 2011. During the investigation, it was determined that Mercer had failed to obtain and maintain benefits for 99 of 160 eligible clients of The Arc. On March 23, Mercer was notified, by letter, that her employment was terminated.

Mercer filed a complaint in federal district court in Maryland, alleging that her discharge constituted unlawful interference with her rights under the FMLA and retaliation for her exercise of those rights. The district court granted The Arc’s motion for summary judgment on both claims, holding that because Mercer would not have been able to keep her job even had she not taken FMLA leave, she was unable to show that The Arc interfered with her FMLA rights. It further held that Mercer failed to establish that The Arc’s explanation for her discharge was a pretext for FMLA retaliation.

On appeal, the Fourth Circuit upheld the lower court’s dismissal of the matter, pointing out that in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), the U.S. Supreme Court held that the FMLA does not require an employee to be restored to a prior job after FMLA if that employee would have been discharged had he or she not taken leave. While the full extent of Mercer’s poor performance may not have been known to The Arc prior to January 2011, her leave permitted the employer to discover the depth of the problems that led to her firing. Mercer therefore could not prevail on her FMLA claim, as her discharge indisputably was based on her performance problems.

In analyzing this case, the Court made a specific finding that is of importance to employers: the fact that Mercer had received satisfactory performance reviews did not negate The Arc’s ability to terminate her employment upon the discovery of previously unknown poor performance, even though that evidence came to light during Mercer’s FMLA leave. However, it also is important to note that there was specific and objective documentation of Mercer’s errors, and that the errors were discovered by individuals outside of the termination decision-making process. Had the poor performance been simply a subjective assessment of Mercer’s skills, had the individual responsible for her termination been the person to have undertaken an investigation or review of Mercer’s past performance, or had there been a lack of objective documentation of Mercer’s performance deficiencies, the Court’s analysis and ultimate decision may have been different.
 

The 3d U.S. Circuit Court of Appeals has upheld lower court’s summary judgment decision, finding that an individual who refused to complete an application without some guarantee that a particular individual would not participate in the hiring process could not support a claim of race discrimination. Murray v. Beverage Distribution Center, 3d Cir., No. 11-1938, unpublished, July 29, 2013.

In January 2007, Daryl Murray submitted a resume for a project manager position with Beverage Distribution Center (BDC) by submitting that resume through a third-party, the WorkPlace Group (WPG), which handled recruiting for open employment positions within BDC. A WPG recruiter subsequently contacted Murray to discuss the position and to complete a required assessment of Murray for the hiring process. At that time, Murray informed the recruiter that he would not cooperate any further in the application process without assurances that a particular WPG hiring manager would not be involved in his candidacy, as Murray believed that said manager previously had discriminated against him.

Based on that interview, Murray was not referred to BDC for consideration, based on his “very poor attitude” and his failure to complete the required assessment process. Murray subsequently sent an e-mail to the recruiter, saying that he planned to file a lawsuit against BDC for discrimination. WPG forwarded the e-mail to BDC’s Vice President of Human Resources, who contacted Murray in an attempt to resolve the situation. Murray responded that there was no way to resolve the matter other than legal action.

In May 2007 Murray submitted a cover letter and resume directly to BDC, and was directed to follow up through WPG regarding the position. Murray never completed that application process. In October 2007, BDC hired a different agency to handle recruiting, but Murray never used that agency to apply for any jobs, even though there were open positions at BDC. Instead, Murray filed a complaint in federal court against BDC and various individuals, alleging race discrimination and retaliation.

In November 2010, the district court granted summary judgment in favor of BDC, and Murray appealed to the Third Circuit. The Third Circuit upheld the dismissal, finding that Murray was unable to establish a prima facie case of race discrimination because Murray could not show that he had “applied and was qualified for a job for which the employer was seeking applicants,” because he never had completed the entire required application process. While failure to formally apply for a position will not automatically keep an individual from establishing a prima facie case within the Third Circuit, in order to overcome such failure, an individual who does not make formal application must show that he made “every reasonable effort” to convey to the employer his interest in the job, and that he was deterred from applying by the discriminatory practices of the employer or that he reasonably believed that a formal application would be “futile.”

According to the Third Circuit, Murray failed to make “every reasonable effort” to convey his interest in the job because he initially refused to complete the process required of applicants for the position with BDC, he refused to submit materials to WPG for a subsequent position, and he never made application for any other positions, even though a different recruiter then was used by BDC. Based on those failures, Murray “failed to manifest the ultimate indicium of conveying one’s interest in an open position: completing the company’s processes required for consideration.”

Further, the Court held that Murray’s assertion that further application would have been a “futile gesture” was completely without factual support. In fact, the Court pointed to evidence that both BDC and WPG personnel urged Murray to complete the application process for open positions. While Murray argued that the companies should have saved his resume and considered him for other openings without further application, the Court held that a company is not required to look at every qualified applicant for every future position. Such a burden, it pointed out, would leave almost every company open to lawsuits whenever a prior applicant was not considered for future openings.

This case should not be viewed as permission to reject every applicant who expresses concern about a company’s hiring procedures and, based on that concern, fails to complete the process. If, in fact, the individual can prove that his or her application attempt actually would be futile or can point to discriminatory practices within the company’s hiring procedures, there may be sufficient support for a claim of discriminatory hiring.
 

While Title VII’s anti-retaliation provision does not prohibit all employer action after an employee has filed a discrimination charge or lawsuit, it precludes employers from taking an action that might dissuade a reasonable employee from making or supporting a discrimination charge. Recently, the 7th U.S. Circuit Court of Appeals reviewed the retaliation claim of an employee who had been fired after verbally accosting the employer’s representatives at a mediation, and determined that such a firing was not the type of action likely to keep reasonable individuals from filing discrimination claims and, therefore, was not retaliatory. Benes v. A.B. Data, Ltd., 7th Cir., No. 13-1166, July 26, 2013.

Michael Benes was employed by A.B. Data for only four months before filing a charge of gender discrimination with the EEOC. Both Benes and the EEOC agreed to a mediation of the matter, and both parties engaged in the “shuttle diplomacy” often used for such procedures – that is, the parties remain in separate rooms, while the mediator shuttles back and forth between them, relaying demands, offers, and comments. The process is viewed as an opportunity for frank discussion of each party’s position and thoughts on the matter out of the hearing of the other.
During the mediation between Benes and A.B. Data, and after receiving a settlement proposal that he felt was too low, Benes stormed into the employer’s mediation room and said loudly: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” He then stalked out of the room, leaving the employer’s representatives “shaken.” The Court described the employer’s reaction with tongue-in-cheek, stating that “Within an hour A.B. Data accepted Benes’s counterproposal: it fired him.”

Benes reacted by filing a lawsuit for retaliation under Title VII, abandoning his gender discrimination claim. The district court granted summary judgment to the employer, concluding that Benes had been fired for misconduct during the mediation and not for making or supporting a charge of discrimination. Benes appealed the dismissal of his claim to the Seventh Circuit.

The Seventh Circuit upheld the dismissal of the lawsuit, pointing out that Title VII does not forbid all employer actions following the filing of discrimination charges – it forbids only those that would dissuade a reasonable worker from making or supporting a charge of discrimination. According to the Court, “[t]he prospect of being fired for an egregious violation of a mediator’s protocols would not discourage a reasonable worker from making a charge of discrimination or from participating in the EEOC’s investigation.” Therefore, such a firing does not constitute retaliation, per se.

In addition, it was Benes who sabotaged the mediation session by barging into the other side’s room and engaging in an angry outburst. The Seventh Circuit pointed out that “mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator.” Just as judges can impose sanctions for inappropriate behavior during a judicial proceeding, allowing a sanction (in this case, employment termination) against an individual who engages in obvious misconduct during a mediation will not undermine the goals of Title VII and, in fact, may support them. Based on that fact, the Seventh Circuit upheld the dismissal of Benes’ retaliation claim.

While this case supports the general policy that not every action against an individual who has engaged in a protected activity under Title VII constitutes retaliation, the Court’s holding is more specific than that. Here, the Court specifically found that there is no privilege on the part of an employee to misbehave or engage in inappropriate behavior during a mediation process. Because the number of employment cases currently being mediated continues to rise, this case provides to mediators and other neutral third parties some guidance that may assist in creating a more civil and effective resolution process for such matters.
 

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a new directive entitled “Calculating Back Pay as a Part of Make-Whole Relief for Victims of Employment Discrimination” (“Directive”). The Directive addresses the two distinct models for calculating back pay relief – formula relief and individual relief – and indicates when it is appropriate to use each of the two back pay models The lengthy directive, dated July 17, 2013 also includes discussion of employees’ duty to mitigate damages, interest calculations, and tax liability.

Generally, an award of back pay will be sought by the OFCCP as a part of the “make whole” relief awarded to victims of employment discrimination whenever that discrimination results in a loss of compensation or benefits for the aggrieved individual. As set forth in the Directive, so long as a federal contract is in effect when the discrimination occurred, back pay generally can be obtained for a period up to two years prior to the date of receipt of the scheduling letter or, in the case of a formal complaint, up to two years prior to the date the complaint is filed. According to the OFCCP, back pay then continues until the date on which the discriminatory actions are “stopped” by the contractor (the directive does not specify how), or stopped by means of a Conciliation Agreement, Consent Decree, or Final Court/Administrative Order.

 The Directive spells out a number of obligations of the employer/contractor with respect to mitigation issues. An aggrieved individual must use reasonable diligence to seek alternative employment during the period of unemployment due to discriminatory treatment, in order to “mitigate” his or her damages. The earnings from such employment will be deducted from the total amount of back pay awarded to the aggrieved individual. The OFCCP’s views on mitigation are specific: according to the Directive, victims are required to accept employment only if that employment is substantially equivalent to or the same as that sought or held with the contractor, and it is the contractor’s burden to show that with such diligence the victims were reasonably likely to have found such comparable employment. Victims of discrimination are not required to take a non-comparable employment position simply to retain their back pay awards, nor are such individuals required to relocate to accept alternative employment. It ultimately is the contractor’s burden to prove the amount of interim earnings with respect to an individual’s mitigation efforts.

According to the Directive, interest on back pay in discrimination cases is calculated on the adjusted back pay calculation after mitigation. Interest on the overall back pay award then is compounded on a quarterly basis, at the percentage rate established by the IRS for the underpayment of taxes. The current rate may be found at http://www.irs.gov/pub/irs-drop/rr-12-16.pdf.

Formula relief v. Individual relief. OFCCP compliance officers (and not the contractor) make a determination of which back pay relief model to use on a case-by-case basis. The Directive includes numerous examples of situations in which each type of relief may be appropriate.
Under formula relief, used typically when a case includes a large number of employees, the OFCCP may equally divide the total back pay award among all of the identified class members, which amounts to a pro-rata share of back pay that each class member receives as a remedy. As explained in the Directive, formula relief is a method of approximating losses in circumstances in which it is unrealistic to attempt to compute multiple individual losses with accuracy, such as situations in which calculating individual back pay relief is difficult because complete information or documentation (i.e., payroll records) is unavailable or missing. When using the formula relief model, earnings may be adjusted or averaged to approximate the loss. For example, in calculating lost overtime pay, an average of overtime hours worked by all of the employees in the position at issue should be used.

 Generally, OFCCP will use the individual relief model when it has identified a single victim of discrimination, or a small group of such individuals. The individual, or “victim-specific” model, provides make-whole relief for each identified victim of discrimination. Unlike the formula relief model, the individual relief model is used whenever it is feasible to identify individual victims of discrimination and it is feasible to calculate specifically each individual’s economic losses. Circumstances that lead to the use of the individual relief model include the total class size, a limited duration of the period of loss, and the existence of documentation related to specific lost pay calculations.

The Directive also provides explicit information regarding the contractor’s obligations in the calculation of damages in “:hiring cases,” in which individuals claim to have been discriminated against during an application process.

 As a final note, the OFCCP specifically states that contractors are responsible for paying the employer share of applicable taxes on top of any calculated settlement amount, and for providing appropriate tax withholding and reporting as explained in detail in the Directive.
 

The Violence Against Women Act of 1994 (VAWA), which was extended in February 2013, is a federal law that provides funding toward investigation and prosecution of violent crimes against women, imposes automatic and mandatory restitution on those convicted, and allows civil redress in cases prosecutors chose to leave unprosecuted. The Act also establishes the Office on Violence Against Women within the Department of Justice. The law’s coverage extends to male victims of domestic violence, and also includes dating violence, sexual assault, and stalking. Since the extension and expansion of VAWA earlier this year, a number of states have taken steps to enact domestic violence laws, or to strengthen existing legislation in that area.

On July 17, 2013, Governor Chris Christie signed into law the“New Jersey Security and Financial Empowerment Act,” which provides certain work-leave rights to victims of domestic violence and sexual assault, and creates additional notice obligations for New Jersey public and private employers with 25 or more employees. Under the Act, an eligible employee – defined as one who has been employed for at least 12 months and has worked at least 1,000 base hours during the 12-month period immediately preceding the leave – (1) who is a victim of an incident of domestic violence or a sexually violent offense, or (2) whose child, parent, spouse, domestic partner, or civil union partner (hereinafter, “relative”) is such a victim, is entitled to 20 days of unpaid leave in the 12-month period following the incident of domestic violence or sexual assault. An employee also is entitled to 20 days of leave for any subsequent incident of domestic violence or sexual assault within 12 months of that incident; however, the Act appears to limit an employee to no more than 20 days of leave over any 12-month period.

The leave may be taken intermittently in intervals of no less than a day, and can be used for the following reasons:

• seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic or sexual violence to the employee or the employee’s relative;

• obtaining services from a victim services organization for the employee or the employee’s relative;

• obtaining psychological or other counseling for the employee or the employee’s relative;

• participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or the employee’s relative from future domestic or sexual violence or to ensure economic security;

• seeking legal assistance or remedies to ensure the health and safety of the employee or the employee’s relative, including preparing for, or participating in, any civil or criminal legal proceeding related to or derived from domestic or sexual violence; or

• attending, participating in, or preparing for a criminal or civil court proceeding relating to an incident of domestic or sexual violence of which the employee or the employee’s relative was a victim.

An eligible employee may elect to use, or an employer may require the employee to use, his or her accrued paid vacation leave, personal leave, or medical or sick leave while taking leave under the Act. In such cases, the employee’s paid leave will run concurrently with the unpaid leave provided by the Act. Similarly, if an employee requests leave for a reason covered by both the Act and the New Jersey Family Leave Act or the federal Family and Medical Leave Act, the leave will count simultaneously against the employee’s entitlement under each respective law.

Employees seeking leave under the Act must provide their employers with advance written notice when such leave is foreseeable, and as far in advance as is reasonably practical under the circumstances. Employers may require documentation from employees to substantiate the need for leave, and the Act provides a list of the types of documentation that would be viewed as “sufficient” (e.g., a domestic violence restraining order, a letter from the prosecutor, etc.). The employer must keep any such documentation strictly confidential, unless disclosure is voluntarily authorized by the employee or required by a federal or state law, rule, or regulation.

Employers also must conspicuously display a notice of employees’ rights and obligations under the Act, in a form to be provided by the Department of Labor and Workforce Development, and to use “other appropriate means to keep its employees informed.” It is not yet clear what employers must do to comply with this “other appropriate means” provision. It also is unclear when the formal notice will be made available, but the Act itself becomes effective on October 1, 2013.

Finally, employers are prohibited from discriminating or retaliating against employees for exercising their rights under the Act. Aggrieved employees can bring (within one year of the alleged violation) a private cause of action in New Jersey Superior Court and can recover the full range of damages and attorneys’ fees allowed under other employment-related laws. A court may also order civil fines of no less than $1,000 and no more than $2,000 for a first violation, and up to $5,000 for subsequent violations.

This article was written by Evan Shenkman (Senior Knowledge Management Counsel),Mark Diana (shareholder), and Shira Krieger (associate), all of whom work in the firm’s New Jersey office.

In an unpublished opinion, the6th U.S. Circuit Court of Appeals has held that an employee who was unable to complete the functions of her job while on part-time duty could not subsequently claim that ongoing part-time work was a reasonable accommodation for her disability. White v. Security First Associated Agency, Inc.,et al, 6th Cir., No. 12-1287, June 28, 2013.

Darla Kay White was employed by Security First Associated Agency, Inc. (SFI) as a full-time customer service agent from 2003 to February 2008. White suffered a non-work-related back injury in September of 2007, and stopped working due to lower back pain that was diagnosed as sciatica. White collected short-term disability (STD) benefits through December 24, 2007, the maximum duration for STD.

In mid-December 2007, White returned to work with medical restrictions that she work not more than four hours a day with limited bending and lifting. White worked part-time for nearly two months, during which she continued to receive STD. On December 24, 2007, White’s STD benefits expired and were converted to Long Term Disability (LTD) benefits. White’s doctor provided documentation that White would be able to return to full-time work on January 28, 2013 and, therefore, LTD benefits were granted to White up until February 11, 2008.

However, beginning in mid-January, White had difficulty working even four hours a day due to ongoing pain. White began to be absent from work, and either did not work or left early on 6 days in the second half of January. In February, when White continued her pattern of absences, her employment was terminated. However, SFI informed White that the job would remain open for her until the end of March, should she become able to return to work on a full-time basis. White did not ask to return to work at any point after her termination.

White subsequently filed a lawsuit which included a claim against SFI for discrimination under the Americans with Disabilities Act (ADA). The lower court granted summary judgment on all claims, and White appealed to the Sixth Circuit.

In order to sufficiently establish a prima facie case of discrimination under the ADA, a plaintiff must show that she is a “qualified individual” with a disability “who, with or without reasonable accommodation, can perform the essential functions” of her position. According to the applicable regulations associated with the ADA, a job function is essential if its removal would “fundamentally alter” the position.

SFI was able to establish that full-time work was an essential function of White’s position by presenting uncontroverted evidence that it never had employed a customer service agent on a part-time basis. Further, its written job description stated that the customer service agent position is full-time. White also acknowledged that she was unable to complete the requirements of the position in a four-hour day, and that other employees were being assigned on a rotating basis to cover her accounts for the remaining four hours, resulting in those employees working overtime to meet the needs of her assigned accounts.

The Sixth Circuit found that White’s request to continue working part-time when she had been unable to perform the functions of her position while working part-time for weeks was not a request for a reasonable accommodation, because such a request essentially would require SFI to create a new part-time position where none previously existed. Under the ADA, an employer is not obligated to do so.

In this case, the employer’s documentation was the key to its success. First, the written position statement specifically spelled out that the position was a full-time job; second, the company was able to provide evidence that it had never employed a customer service agent on a part-time basis; and finally, there was uncontroverted evidence that White could not complete her essential job duties within a four-hour work day, and that others were working overtime in order to get White’s work completed. All of that information, taken together, supported the employer’s assertion that White’s request for a permanent part-time schedule was not a reasonable accommodation, because White would not be able to do the essential functions of the job for which she was hired within a four-hour workday.

While this holding is unpublished, and therefore arguably limited, the rationale is sound and provides to employers usable advice regarding the amount and type of documentation necessary when faced with a request for less-than-full-time hours as a reasonable accommodation for a disability. Had any of the three elements listed above been missing, the holding may have been different.
 

One federal district court has ruled that a night-shift emergency dispatcher with diabetes and hypertension, whose doctor stated that the individual’s health would be improved by working day-shifts, could proceed on his claim that an employer’s refusal to allow him to work days violated the Americans with Disabilities Act (ADA). Szarawara v. County of Montgomery, EDPA Case No. 12-5714, June 27, 2013. In denying the employer’s motion to dismiss at the initial stage of the litigation, the court rejected the argument that language in a job description requiring employees to be able to work “various shifts” made working the night shift an essential function of the job. In addition, the court refused to accept the employer’s argument that the employee should have tried other ways to improve his condition before seeking to change his night-shift schedule.

James Szarawara, an emergency dispatcher working for the County of Montgomery, Pennsylvania, suffered from headaches, dizziness and loss of focus, all of which affected his work performance. After receiving three disciplinary warnings, Szarawara told his manager that he believed that his performance problems were caused by his diabetes and hypertension, and provided documentation that his doctor had prescribed “proper sleep patterns,” which would include “working during daytime hours.”

As an alternative to Szarawara’s request for day-shift hours, the County suggested unpaid medical leave, which Szarawara declined. Szarawara suggested that he would accept part-time night-shift employment, or a transfer to a lower paying day-shift job, but the County refused to make either change. Szarawara resigned from his night-shift dispatcher position, believing it to be in the best interest of his health. He ultimately brought a federal court action against the County under the ADA and the Pennsylvania Human Relations Act (PHRA), which the County moved to dismiss.

Szarawara claimed that he could have performed all of the essential functions of his job if he were permitted to work day shifts. In response, the County argued that a request to move to day-shift was unreasonable, because working night shifts was an essential function of the dispatcher job. The court disagreed, pointing out that the job description simply required working “various shifts” and “rotating schedules,” and contained no language that rendered working night shifts an essential function of the dispatcher’s job. That lack of more specific language created a factual issue that precluded dismissal of the ADA claim at the initial stage of the litigation.

The court also pointed out that the language of the doctor’s note, which seemed to put the onus of improvements in Szarawara’s health primarily on Szarawara, did not relieve the County from its obligations under the ADA. Although Szarawara’s doctor stated that “other changes” in lifestyle would improve Szarawara’s condition, the court specifically held that an employee is not required to exhaust all other possible methods of mitigating the effects of an alleged disability before requesting an accommodation from his employer. The motion to dismiss was denied on Szarawara’s ADA accommodation claim.

The court made two additional holdings that are noteworthy. First, the court found that Szarawara’s “regarded as” disabled claim, which also alleged a failure to accommodate, was not a cognizable claim under the ADA, because the 2008 amendments to the ADA (also known as the ADAAA) do not require accommodation for an individual who meets the definition of “disability” solely because he is regarded as disabled.

Second, the court dismissed Szarawara’s PHRA failure to accommodate claim. It did so on the basis that the PHRA has not expanded the definition of “disability” in a way similar to the expansion of that term under the ADA/ADAAA. Szarawara’s general allegation that he suffered from “headaches, dizziness, and loss of focus” that led to discipline at work was insufficient to allow an assessment of the magnitude of the limitation he faced in a major life activity. The court dismissed Szarawara’s claim under the PHRA.

This case is a wake-up call to employers who have not recently reviewed written job descriptions. As evidenced by the court’s analysis of Szarawara’s claims, a vague or general statement regarding the functions, requirements, or limitations on job duties may not be interpreted by the court to create an “essential function” of the position. Functions should be described completely and objectively, and in enough detail to support an argument related to the functions’ importance to the overall job duties.
 

The7th U.S. Circuit Court of Appeals recently overturned a lower court’s summary judgment in favor of a home care agency, holding that a jury should be allowed to determine whether the agency’s shifting explanations for the firing could, in fact, be a pretext for pregnancy discrimination. Hitchcock v. Angel Corps Inc., 7th Cir., No. 12-3515, June 11, 2013.

In October 2008, Jennifer Hitchcock became employed by Angel Corps, Inc., a home healthcare agency, as a client services supervisor. In that role, Hitchcock assessed new client needs in order to help Angel Corps determine what services should be provided to the client. On March 25, 2010, a week after informing her immediate supervisor that she was pregnant, Hitchcock was asked, by that supervisor, whether she was “quitting” after she gave birth. Because Hitchcock was only three months pregnant at that point, she told the supervisor that she would not make such a “big decision” until later in her pregnancy. The supervisor told her to make the decision as soon as possible in order to allow “continuity of care” for the clients.

After this conversation, the supervisor began to increase Hitchcock’s workload, and began to meet with Hitchcock on a weekly basis, which had not been done prior to Hitchcock’s pregnancy. Also, because Hitchcock worked 40 hours a week and no overtime, the increase in work responsibilities became “nearly impossible” to complete. In addition, according to an affidavit of a former co-worker, Hitchcock’s supervisor made derogatory remarks about how an additional child would affect Hitchcock’s attendance (Hitchcock had two other children at the time), and even indicated that “If I were you I would have an abortion.”

On April 5, 2010, Hitchcock went to the home of a possible new client to do an intake interview. The client was 100 years old and lived with her son. When Hitchcock arrived at the house, she first went through paperwork with the son, and then asked to see the client. According to Hitchcock, the son “reluctantly” led her to the bedroom, but did not allow Hitchcock to approach the mother directly. From Hitchcock’s vantage point, the woman seemed to be asleep in her bed. However, Hitchcock did not see signs of breathing or volitional movement, and noticed “brown stains” on the pillow case, which the son explained were liquid that he had tried to feed to his mother earlier that day. The son then backed Hitchcock into the hallway and turned out the mother’s light.

Hitchcock was shaken by the interview, and returned to the Angel Corps office immediately to report the circumstance to her supervisor, stating that the client “was possibly dying or already dead.” The supervisor directed Hitchcock to complete and submit the paperwork on the client, and then made calls which ultimately resulted in the confirmation of the client’s death. On April 16, Hitchcock was suspended while an investigation of the incident was conducted. The investigation revealed that the client had been dead for two or three days before Hitchcock saw her.

On May 3, 2010, Hitchcock was fired. The termination form indicates that Hitchcock was fired because she “completed a full admission on an expired client.” However, the same form also indicates that Hitchcock had “compromised the health and safety of this client.” During the litigation, an owner of Angel Corps testified that Hitchcock was fired because she “performed a deficient assessment on a potential client,” but did not explain how the assessment was deficient.
Hitchcock filed a lawsuit, and alleged that her firing was based on her pregnancy, in violation of Title VII. (The Pregnancy Discrimination Act amended Title VII to prohibit employment discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”) The lower court granted summary judgment in favor of Angel Corp, but that decision was reversed by the Seventh Circuit on appeal.

After a discussion of the difference between “direct” and “indirect” evidence, and the methods for evaluating cases under both tests, the Seventh Circuit simply determined that a genuine issue of material fact existed that was sufficient to overturn the summary judgment and to allow the case to move forward to be decided by a jury.

The Court first reviewed Angel Corps proffered legitimate business reason for Hitchcock’s termination, stating that “if there is no evidence of pretext, then Angel Corps non-discriminatory justifications for firing Hitchcock must be believed, which necessarily precludes liability under Title VII.” However, the Court then went on to say that it counted “at least four potentially different explanations given for Hitchcock’s firing,” all of which were “sufficiently inconsistent or otherwise suspect to create a reasonable inference that they do not reflect the real reason for Hitchcock’s firing.” In stronger-than-usual language, the Court pointed out that Angel Corps attempted to make sense out of its disparate explanations, but did so by “piling on additional ever-evolving justifications that may cause a reasonable juror to wonder whether Angel Corps can ever get its story straight.”

Of note is the fact that the Court does not attempt to determine whether Hitchcock’s firing was “fair” or whether Angel Corps’ decision to fire her was too harsh. The Court’s decision was based completely on the number of reasons proffered for the firing, and the inconsistency among those reasons. Although Title VII does not require an employer to have “just cause” for every termination, an employer who advances inconsistent reasons for firing an employee takes the risk that a court’s disbelief in the reason or reasons will lead to denial of a motion for summary judgment or, worse, will cause a jury to find that the reasons constitute a pretext for discrimination. An employer’s documentation related to an employee’s termination should be objective, factual, and consistent, and should be carefully reviewed before use, in order to avoid the result in this case.
 

The 4th U.S. Circuit Court of Appeals has affirmed an April 2012 decision of the U.S. District Court for the District of South Carolina (Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, 4/13/12), striking down the National Labor Relations Board’s (NLRB) controversial notice posting rule. The rule would have required most U.S private-sector employers — including most of the 6 million small businesses in the U.S. — to post a written notice of employee rights regarding unionization, including specific language informing individuals of their rights not to unionize, with penalties attached for employers who failed to post the notice under the conditions required by the NLRB. Under the proposed regulation, the Notice would have been required whether or not an unfair labor practice charge had been filed against the employer. The regulation was proposed in 2010 and was published as a final rule in August 2011, set to become effective in November of that year. The effective date was postponed to January 31, 2012, then further postponed until April 30, 2012, and was effectively suspended by the federal court’s April 13, 2012 ruling, which now has been upheld. Chamber of Commerce of the United States v. NLRB, 4th Cir., No. 12-1757, 6/14/13.

Pointing out that the NLRB does not have authority to enforce the Act proactively, the 4th Circuit agreed with the lower court that "the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice [ULP] charges and conducting representation elections upon request." The Court stressed that "[a]lthough the Board is specifically empowered to ‘prevent’ unfair labor practices, the Board may not act until an unfair labor practice charge is filed alleging a violation of the Act." In a thorough and well-reasoned opinion, the Court reviewed the NLRA’s plain language, structure, and legislative history, along with the history of subsequent labor legislation, in holding that the Board was not empowered to promulgate the rule. "Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so."

The 4th Circuit’s opinion is even more favorable for employers than the recent decision by the D.C. Circuit Court of Appeals,National Association of Manufacturers v. National Labor Relations Board (D.C. Cir. May 7, 2013), which struck down the notice posting rule on the grounds that it violated Section 8(c) “because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus,” when, in fact, Section 8 allows employer to express their views about unions and unionization, as long as the communications contained no threat or promise.

At this time, it looks as if the notice posting requirement is out of commission for the time being, with two federal appellate courts taking the position that the NLRB is without authority to require posting. However, it remains to be seen whether this phoenix will rise out of the ashes of these opinions and, if so, in what form it will return.
 

In a case that points out the inherent difficulty of implementing the Americans with Disabilities Act (ADA) in a situation involving safety issues, a federal district court in Connecticut determined that an operating room nurse was not qualified for protection under the ADA because he was weeks away from the end of a year-long prohibition – imposed during drug rehab – against working in an operating room or around narcotics. Talmadge v. Stamford Hosp., D.Conn, No. 3:11-cv-01239, May 31, 2013. The more difficult issue, which received little attention from the court, was whether the nurse’s unsuccessful subsequent communications regarding employment after completion of the prohibition term could support an ADA claim.

According to the court, Richard Talmadge, an operating room nurse, was caught stealing narcotics while working in a hospital’s main operating room. Talmadge enrolled in a confidential assistance program for healthcare professionals with the expectation that upon successful completion, his nursing license would not be affected. The program, Health Assistance interVention Education Network (HAVEN), advised participants to “stay away from an operating room setting and have no access to narcotics for a period of one full year.” By enrolling in the program and agreeing to its terms, Talmadge was able to avoid suspension of his license; he also received no discipline from state or federal agencies.

On May 12, 2010, Talmadge returned to the practice of nursing, but was prohibited from working in an operating room, procedure room, or recovery room setting until formally released to do so by HAVEN. Although the record is somewhat unclear, the earliest that Talmadge could have returned to such work areas was November 13, 2010.

On October 1, 2010, Talmadge submitted a handwritten application to Stamford Hospital for the position of operating room nurse, and was interviewed on that day. During the interview, Talmadge first explained that he was simply “looking for greener pastures,” but then stated that his former employer had filled his position while Talmadge was on a “leave of absence.” Talmadge did not reveal at that time that he was restricted from narcotics and from working in an operating room.

Concerned about perceived inconsistencies during Talmadge’s interviews, Stamford Hospital asked Talmadge for additional details about his history, at which point Talmadge revealed the drug theft and the rehabilitation program. Based on all of the information, the hospital decision-makers felt that Talmadge was “lying about several issues” related to his circumstances, and informed Talmadge that the hospital had “decided to explore other candidates” for the position. Talmadge filed a lawsuit under the ADA, alleging that he was not hired because of his past drug addiction.
To establish the necessary prima facie case under the ADA, an individual must show that he was “otherwise qualified to perform the essential functions of the job with or without reasonable accommodation.” The district court granted summary judgment in favor of the hospital, finding that Talmadge was not a qualified individual under the ADA when he interviewed at Stamford Hospital in October 2010, because he was unable to work in an operating room environment or access narcotics under any circumstances at that time.

While the court’s decision regarding Talmadge’s initial application was discussed and supported in detail in the court’s opinion, less than one page was dedicated to Talmadge’s argument that his subsequent contacts with Stamford, made after the expiration of HAVEN’s prohibition of his work in an OR, should be considered as new applications for employment. In determining that Talmadge’s later communications with Stamford were simply a continuation of the initial application, the court points to the wording in Talmadge’s deposition testimony, in which Talmadge stated that he heard about additional openings for operating room nurses at Stamford in December 2010, and wondered “whether [Stamford] would reconsider my application.” By doing so, the court avoids addressing the thorny issue of whether Stamford’s failure to hire Talmadge after Talmadge’s completion of the conditions of his rehabilitation would constitute a violation of the ADA. It remains to be seen whether this case will be appealed, and whether the appellate court will agree with the lower court’s characterization of Talmadge’s later communications as a simple request for “reconsideration” of the original facts of his application.