By: Ogletree Deakins

By now, most employers are aware of a number of “Facebook Firing” cases, in which individuals who were fired for Facebook postings have been reinstated after the National Labor Relations Board (NLRB) found the postings to have been “protected concerted activity” under the National Labor Relations Act (NLRA). However, on May 8, 2013, an NLRB Associate Counsel sent an Advice Memorandum to his Regional Director, supporting the actions of a medical group that fired an employee after her postings to a private Facebook group message. Tasker Healthcare Group d/b/a Skinsmart Dermatology, NLRB Div. of Advice, No. 4-CA-94222, May 8, 2013.

In that case, an unnamed Charging Party was employed by Tasker Healthcare Group, which was doing business as Skinsmart Dermatology, where the Charging Party performed various office duties with patients and office guests. On November 12, 2012, that employee, along with nine other individuals, the majority of whom were co-employees, participated in a private Facebook “group message” in which only the invited individuals were able to contribute postings.

The initial “conversation” focused on a planned social event for the group. Then, at some point, the Charging Party related an exchange with a current supervisor in which Charging Party had told the supervisor to “back the freak off.” She followed that posting with one in which she described the employer as “full of shit” and went on to state “FIRE ME . . . make my day. . . .” Other than Charging Party, no other current employee took part took part in this portion of the conversation until two hours later, when someone stated that the workplace was “annoying as hell” and that “there’s always some dumb shit going on.” No other employee responded and the conversation ended shortly afterward.

On the following day, one of the non-posting employees showed the message string to the employer, who then fired the Charging Party. In addition to saying that it was obvious that the Charging Party was not interested in continuing her employment, the employer also stated that there was a concern about having her work directly with patients, given her feelings about the medical practice.

Following the Charging Party’s claim that her firing was an unfair labor practice under the NLRA, the NLRB Regional Director asked for input from the Division of Advice. In his Advice Memorandum, a Division of Advice Associate Counsel acknowledged that the NLRA protects individual employees who engage in concerted activity, and further acknowledged that such activity can be undertaken by a single employee who seeks to initiate group action, or who brings group complaints to an employer. However, he then pointed out that in this case, the Charging Party “merely expressed an individual gripe” rather than engaging in a discussion of shared concerns. He went on to characterize the Facebook comments as “personal contempt” rather than discussion of the terms and conditions of employment. Based on that, the Associate Counsel specifically determined that “the Charging Party’s discharge was not unlawful because her comments were not concerted and, instead, were merely boasting and griping.”

Before making its own determination regarding whether Facebook comments are protected concerted activity, however, an employer should recognize that there is a line of cases that use the “inherently concerted” analysis. In those cases, the discussion of certain topics – including wages, work schedules, and job security – are found to involve “mutual workplace concern” and, therefore, contemplation of group action is not necessary in order to find concerted activity. Therefore, if on-line discussions include those topics, further analysis should be done before adverse action is taken against the employee.
 

Originally published at Ogletree Deakins (http://www.ogletreedeakins.com) on April 15, 2013, and written by Leigh Nason and Dara DeHaven. An extended version of this article can be found here.

After a relatively quiet 2012, the Office of Federal Contract Compliance Programs (OFCCP) hit the ground running in 2013. In a second major announcement this year, OFCCP issued new investigation standards and procedures on February 28 as well as a new policy directive for reviewing the compensation systems and practices of federal contractors and subcontractors.

Directive 307 provides for broad investigation of “any observed difference in compensation” and allows OFCCP compliance officers to utilize a wide range of statistical and non-statistical analytical tools in investigating and remedying compensation discrimination. The Directive, entitled Procedures for Reviewing Contractor Compensation Systems and Practices, has applied to all OFCCP compliance reviews scheduled on or after February 28, 2013.

Contractors must review and monitor their compensation systems to “determine whether there are gender-, race-, or ethnicity-based disparities.” During a compliance evaluation, OFCCP requests
compensation data and analyzes contractors’ compensation systems and practices to determine if discrimination exists and, if so, how it should be remedied. 41 C.F.R. § 60- 2.17(b)(3), (d).

Despite OFCCP public statements to the contrary, the new Directive offers little “clear guidance” at all for federal contractors in preparing affirmative action programs that will pass the scrutiny of an OFCCP compliance review. Rather, the Directive provides investigators continued broad discretion to examine a wide array of contractor practices and to make case-by-case judgments on how to proceed in any given compliance review.

The Directive states the following:
Investigation of potential compensation discrimination presents complex and nuanced issues. The choice of the best approach for a case depends upon the underlying facts, the available data, and the contractor’s compensation system and practices. As such, OFCCP takes a case-by-case approach to analyzing compensation issues.

To more fully understand how this case-by-case process might affect your workplace, review the factors listed in the full-version of this article, along with the section entitled "What Do You Do Now?" which provides tips on reacting to a compliance audit or action by the OFCCP related to your compensation system.

 

As the U.S. Supreme Court has stated, Title VII is intended to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotyping.” Recently, a federal court in Virginia refused to dismiss the claim of a male employee who said that he was treated differently and subjected to a hostile work environment because he was viewed as effeminate and told that he was not a “real man.” Henderson v. Labor Finders of Virginia, Inc., E.D. Va., No. 3:12cv600 (April 2, 2013).

Raymond Henderson began working for Labor Finders of Virginia, Inc., a staffing company, in April 2010. Although the company had a policy of giving preference to employees who had their own transportation, Henderson (who had transportation) was assigned to projects only when it was difficult to find someone else to fill a work assignment. Henderson filed an EEOC charge and, ultimately, a lawsuit, alleging that he was discriminated against because Labor Finders found him to be effeminate. Henderson alleged that he was routinely subjected to verbal epithets and slights by and in the presence of his supervisors, and was told he “looked just like a woman,” that he was not a “real man,” and that he was “a woman pretending to be something else, because he . . . was definitely not a male or a man.”

Although Henderson alleges that he tried to complain to Labor Finders’ management, he never received a response and, in fact, was ultimately told that he was going to lose his job because he was a “troublemaker” and was creating problems for Labor Finders. He filed his lawsuit against the company and a number of individuals, claiming violation of Title VII and a number of state laws. The individuals were dismissed from the lawsuit, as Henderson had failed to name them in his EEOC charge. Labor Finders then filed a motion to dismiss the state and federal claims against the company.

The U.S. District Court for the Eastern District of Virginia granted Labor Finders’ motion as to the state law claims, but denied it with respect to the federal Title VII issues. Henderson was able to overcome the motion to dismiss the Title VII claim because, according to the court, he presented facts sufficient to “allow the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.”

In its analysis, the court pointed out that Henderson’s claim “presents a tension between two well-settled principles of law.” First, it is undisputed that Title VII does not afford a cause of action for discrimination based on sexual orientation. However, at the same time, employers are not permitted to assume or insist that employees match the stereotype associated with their gender group. Title VII permits recovery, for instance, for a male employee who is treated less favorably because he is viewed as “unmanly.”

In a detailed analysis of Henderson’s claims, the court held that Henderson had set forth sufficient allegations of gender stereotyping to move his claim forward. The court found that Henderson’s perceived failure to conform with accepted gender norms was thought to reflect poorly on Labor Finders, and was viewed as displeasing that company’s clients. Therefore, Henderson’s claim that he was treated differently because of his appearance and behavior was sufficiently set forth in his complaint. The court further held that Henderson sufficiently stated a claim for hostile work environment under the gender stereotyping theory by detailing the statements made by and around supervisors, including the remarks that he was not a “real man” and “looked just like a woman.”

The line between sexual orientation, which is not yet prohibited by federal law (although prohibited under some state statutes), and discrimination “because of sex” can be difficult to draw. However, employers must recognize that an employer who takes an adverse action against an individual because he or she does not fit within sexual stereotypes is engaging in discrimination, because that discrimination would not have occurred but for the individual’s sex. If a company’s disciplinary actions are meant to punish or belittle non-compliance with gender stereotypes, the actions may constitute a violation of Title VII’s “because of sex” provision.
 

A female plumber on “light duty” in the City of Chicago’s Department of Sewers filed a lawsuit alleging that because she was female, her supervisor assigned menial work to her, prohibited her coworkers from interacting with her, and subjected her to alleged “verbal violence.” While the district court viewed each of those actions individually and found that none constituted hostile work environment under Title VII, the7th U.S. Circuit Court of Appeals reversed the lower court’s summary judgment in favor of the City, and determined that the case should move forward to trial, on the basis that a jury could find that the collective treatment could rise to the level of hostile environment. Anna M. Hall v. City of Chicago, 7th Cir., No. 11-3279, March 29, 2013.

In 1999, Anna Hall, a plumber for the City of Chicago, began a lengthy disability leave due to a work-related injury. Hall returned to work in 2003 with a 25-pound lifting restriction, and was unable to resume working as a plumber. The City then assigned Hall to light duty in the House Drain Inspectors Division of the City’s Department of Sewers, where she was supervised by Gregory Johnson, the Division supervisor. Johnson assigned Hall to alphabetize various files for several weeks and, in fact, gave her the same files over and over again. A few weeks later, Johnson did the same with reviews of drainpipe videos, on which Hall took notes which were never read – as Johnson already had reviewed the videos and taken his own notes prior to having Hall undertake the task. After several weeks, Hall complained to the department’s personnel director about the assignments, who dismissed the complaints and allegedly called Hall a “trouble maker” in the process.

In addition to assigning the menial work, Johnson prohibited the other Division employees from speaking to Hall, ultimately excluding her from meetings, and precluding her from taking on additional responsibilities within the group. Johnson also directed anger towards Hall in other ways, making comments – overheard by Hall – that he “could slap that woman and get a promotion” and that he might “go postal on that woman.” On one occasion early in 2004, Johnson purposely bumped into Hall, after which Hall contacted the police, the union, and her lawyer, and ultimately filed a Violence in the Workplace Report with the City. Eight days after that Report, a written reprimand was issued to Johnson.

Hall continued to do the assignments given to her by Johnson until 2005, when she left the Division and filed a lawsuit, alleging that Johnson discriminated and retaliated against her, and that the City failed to promote her in retaliation for her complaints. The lower court entered summary judgment against Hall, dismissing the complaint. On appeal, Hall pursued only her hostile work environment claim. The Seventh Circuit reversed the lower court’s decision, and remanded the case for further proceedings on that claim.

Title VII makes it unlawful to treat an employee differently because of a protected characteristic, including gender. To survive summary judgment on her Title VII hostile work environment claim, Hall had to provide evidence that the alleged harassment was severe or pervasive, that the hostile conditions were because of her sex, and that the company should be held liable for Johnson’s actions. The Seventh Circuit determined that Hall had done all three.

First, the Court stated that it was improper to “carve up the incidents of harassment and then separately analyze each incident, by itself, to see if each rises to the level of being severe or pervasive.” Instead, the Seventh Circuit looked at the totality of the circumstances and found that a jury could conclude that Johnson’s ongoing conduct was designed to ostracize Hall from the rest of the Division.

Next, while admitting that this was a “close” case, the Court found enough evidence in the record from which a jury could infer that Johnson was motivated by Hall’s gender. That evidence consisted largely of Johnson’s references to “that woman” in his remarks about Hall. It is of note that Hall was not the only woman in the Division – Johnson’s secretary also was female. However, the Court pointed out the fact that Hall was in a “traditionally male role” (that of plumber), while the secretary was not, and referred to research on gender stereotyping.

Third, Hall was able to proffer sufficient evidence on which a jury could base a finding of liability against the City. While the City took prompt action after Hall’s Violence in the Workplace Report, the record also showed that Hall first raise her concerns about her assignments a few weeks into her light duty position, but allegedly was met with the statement that Hall was a “trouble maker.” Further, Hall’s report to the union and to the police of the bumping incident in 2004 provided sufficient notice to the City of the issues related to Johnson’s actions.

It is important to understand that the Seventh Circuit’s holding is not an ultimate determination of Hall’s hostile environment claim. However, it does indicate that courts are likely to: (1) view hostile work environment complaints through a broad lens, looking at the totality of the circumstances to determine whether behavior is “severe or pervasive”; (2) interpret remarks that include references to gender (“that woman”) as an indication that the remark was made because of the sex of the person being mentioned; and (3) assume that a jury may find a company liable if prior complaints have been made without some active response. In addition, the case is a warning to employers regarding the supervision of individuals on “light duty” and a directive to assure that company anti-discrimination policies are enforced for those employees, even though they are in positions other than their own.
 

A federal court in the Eastern District of Pennsylvania granted summary judgment for a newspaper/employer who had been sued after the lay-off of a female page designer who claimed that she was let go because of her gender and her deafness in one ear. Mengel v. Reading Eagle Company, EDPA, No. 11-6151 (March 28, 2013).

The Americans with Disabilities Amendments Act (ADAAA) was implemented to make it less difficult to establish a disability, and is more focused on whether an accommodation can be provided to allow an impaired individual to obtain or maintain employment. The regulations associated with the ADAAA, in fact, include a list of per se disabilities, for which no proof is required. Those disabilities include: deafness, blindness, missing limbs, autism, cancer, and a number of other physical and mental impairments. However, the definition of “disability” under the ADAAA remains unchanged from the original Americans with Disabilities (ADA). Therefore, in order to be entitled to the rights and privileges established under the Act, an individual must show a physical or mental impairment that substantially limits a major life activity, or must show a record of such impairment, or that he or she is “regarded as” being limited in that way.

Christine Mengel began her employment with the Reading Eagle Company in 1999. In 2007, Mengel became deaf in one ear and began having balance problems as a result of surgery to remove a brain tumor. Mengel’s supervisors were aware of those problems, but Mengel continued to perform her job without accommodation.

In January 2009, Reading Eagle decided to perform a reduction-in-force layoff. It rated its employees in seven categories, and eliminated the lowest scoring employees. The ratings categories included: work quality, productivity, versatility, tenure with the company, and inter-personal/teamwork skills. Mengel received a total score of 13 out of 46, the lowest score in her department – the next closest score was a 24. Mengel and two of her co-workers were laid off from her department. The other two individuals were both male employees.

Mengel filed a lawsuit alleging both disability and gender discrimination, stating that she always had received good performance evaluations and that, therefore, her ranking was unfairly low because of her protected characteristics.

The district court granted summary judgment to Reading Eagle on the gender claim, finding that the company had presented a legitimate, nondiscriminatory reason for Mengel’s lay-off (the employee rankings), and that Mengel had not shown sufficient evidence of pretext to overcome the summary judgment motion. The court based its determination on the fact that Reading Eagle produced the matrices and criteria that it used in ranking all of the employees for lay-off, stating that “courts generally do not second-guess the wisdom of a business’ performance evaluations and ratings of its employees” when evidence of the same is proffered.”

The court took an interesting path in analyzing Mengel’s disability claim, granting Reading Eagle’s motion for summary judgment on the basis that Mengel had failed to set forth a prima facie case of disability discrimination. To successfully present a prima facie case, Mengel was required to show that she was a disabled person within the meaning of the ADAAA; that she as qualified to perform the essential functions of her job, with or without accommodation; and that she suffered an adverse employment action as a result of discrimination.

The court found that Mengel had not set forth a prima facie case of disability discrimination because she was unable to provide evidence of the third element by showing “a logical inference of causation between the alleged disability and the adverse employment action.” In its analysis, the court was able to state – without definitively holding – that hearing loss in one ear may not constitute a disability within the meaning of the ADAAA. It did so by finding that although Mengel could not prove that her partial deafness was a disability, Mengel was able to show that she may have been “regarded as” disabled, because her managers were aware of her impairment. However, according to the court, Mengel’s prima facie case failed, largely because the company became aware of her impairment in 2007 and did not implement her lay-off until 2009. The court found that this long time gap refuted the necessary causation, and dismissed Mengel’s case as a matter of law.

It would be unwise to draw any conclusions here regarding whether partial deafness can definitively be excluded as a “disability” under the ADAAA. The broadened definition of that term, along with the Act’s stated intention of including more individuals within its purview both lead to the conclusion that no blanket distinctions should be drawn from this district court decision. Attorneys for both employers and employees will be interested in an appellate determination of this issue.
 

Is the ability to be licensed to drive a commercial vehicle an “essential function” of a warehouse manager’s position, even though that manager rarely is required to drive? According to the 8th U.S. Circuit Court of Appeals, that answer depends largely upon the job description developed by the employer, and not on the employee’s specific personal experience in the job. Knutson v. Schwan’s Home Service, Inc., 8th Cir., No. 12-2240, (April 3, 2013).

Jeffrey D. Knutson was employed as a Local General Manager (LGM) of a depot for Schwan’s Home Service, Inc. until 2009, when his employment was terminated. That termination was based upon the fact that Knutson was no longer able to meet the physical standards set forth in the job description for his position. Although Knutson sued Schwan’s under the Americans with Disabilities Act, both the district court and the Eighth Circuit determined that Knutson was not qualified for protection under the ADA, because he was unable to fulfill the essential functions of his job under any circumstances.

During his employment with Schwan’s, Knutson excelled at his job as an LGM. Although the position description for that job specifically states that an LGM must meet the Federal Department of Transportation (DOT) eligibility requirements, which require such individuals to be “DOT qualified” to drive commercial motor vehicles, Knutson had driven a truck “less than 50 [times]” since becoming a manager in 2007.

In March 2008, Knutson suffered a serious eye injury, after which he was unable to obtain the medical waiver necessary to qualify him for the required DOT certification. Because of that fact, Schwan’s placed Knutson on a 30-day leave of absence to either obtain the required certification or find a non-DOT-qualified position within the company. Knutson was unable to do either within that 30 day period, and was discharged from his job. Knutson filed a lawsuit, claiming that he was qualified as disabled under the ADA, which protects an individual who is able to undertake the essential functions of his or her position, with or without an accommodation. The lower court dismissed Knutson’s claim, finding that the requirement to hold a commercial driver’s license is an essential function of the manager’s position. Because Knutson could not perform that essential function under any circumstance, he was not qualified for protection under the ADA. That decision was upheld by the Eighth Circuit.

Knutson claimed that being DOT qualified to drive a delivery truck was not essential to his job, because he rarely drove a commercial vehicle. However, the Eighth Circuit pointed out that under the ADA, an employer’s judgment about what constitutes an essential function is “highly probative.” In this case, the position description for the LGM position specifically required the commercial driver’s license. While managers do not necessarily drive the delivery trucks every day, or even every week, they are required to be able to driver those trucks when needed, and on occasion must step in and take over a route when a driver is absent. Schwan’s was able to show that if managers did not drive trucks, less product would be delivered and less driver training would be provided, both affecting sales. Based on that information, the Court determined that although Knutson claimed to have driven trucks infrequently, Knutson’s specific experience “is of no consequence in the essential functions equation.” Instead, in determining the essential functions of the LGM position, the Court relied on the written job description, the company’s judgment, and the experiences of all LGMs, and upheld summary judgment in favor of the company.

This case underscores the importance of clear, complete, and up-to-date, job descriptions, and documentation of business-related reasons for decisions affecting employees. In this case, the Court’s determination was influenced by the fact that the company consistently had documented and enforced the DOT-related requirements for its LGMs, and further was able to proffer evidence showing that the essential function was directly related to financial elements of the business’ success.
 

In a non-precedential opinion, the 3d U.S. Circuit Court of Appeals recently upheld a hospital’s firing of a security guard who had admitted that he was a recovering drug addict. Because that firing was based upon the fact that the employee previously had denied prior drug or alcohol addition/treatment, the court found that the hospital’s reason for the termination – the employee’s dishonest disclosure – was not a pretext for discrimination. Reilly v. Lehigh Valley Hospital, 3d Cir., No. 12-2078, March 29, 2013.

Robert Reilly was employed by Lehigh Valley Hospital (LVH) as a part-time Security Officer from August 2006 until May 2, 2008. During the application process, Reilly was asked to respond to the following two questions: (1) “Have you ever been recognized as or diagnosed with alcoholism or drug addiction?” and (2) “Have you ever been or are you now being treated for alcoholism or drug addiction?” Reilly answered “No” to both of the questions, and left blank a question that asked for information on any such treatment. A handwritten note on the application says “denies drug/alcohol addiction.” The application form included a statement that “falsifying of this information could result in withdrawal of the employment offer or if subsequently discovered termination of employment.”

On April 5, 2008, Reilly was admitted to the Emergency Room of LVH to receive treatment for a work-related eye injury. During that visit, Reilly disclosed to the treating physician a history of narcotics use and admitted that he was a recovering addict. When an LVH employee sustains a possible work-related injury and is treated by LVH, the medical records routinely are furnished to the hospital’s Health Services Department, which manages and administers workers’ compensation issues. Upon receiving Reilly’s records, Health Services informed LVH’s Human Resources Department of Reilly’s statement regarding his addiction and recovery. Reilly was fired on May 2, 2008 for failure to disclose the information during the application process.

Reilly filed a lawsuit against LVH alleging disability discrimination. During a deposition in the case, Reilly testified that following a conviction for DUI in 1995, he attended approximately 40 hours at a drug and alcohol treatment center as part of an Accelerated Rehabilitation Disposition program. He testified that he did not consider himself to have received addition treatment at that point, because he continued to abuse drug and alcohol after that time.

LVH’s motion for summary judgment in the case was granted by the district court, and Reilly appealed. The Third Circuit upheld the decision. In applying the now well-known McDonnell Douglas burden-shifting framework, the Third Circuit found that Reilly was able to set forth a prima facie case of discrimination, and that LVH was able to proffer the required legitimate business reason for its action. The district court found – and the Third Circuit agreed – that Reilly failed to satisfy the third step by adducing sufficient evidence to show that LVH’s reason was simply a pretext for discrimination.

The Court viewed the primary issue in the case as “whether the decision-maker at LVH could regard Reilly’s responses as dishonest.” According to the Court: “The answer to that question is resoundingly, ‘yes.’” The evidence established that Reilly received 40 hours of addiction treatment, and that he regularly attended and still attends AA and NA meetings. In spite of those facts, Reilly answered “no” to questions on the employment application asking whether he had ever been or currently was “recognized as,” diagnosed with,” or “treated for” alcohol or drug addiction. Given that circumstance, Reilly is unable to prove that LVH’s proffered reason for his firing – dishonesty – was a pretext for discrimination.

This case is not a license to fire individuals simply because they are or have been in drug or alcohol rehabilitation. In fact, it is important to recognize that under the American with Disabilities Act, an individual who is in recovery for drug or alcohol addiction may be considered to be protected under the Act. However, this case does point out the fact that language on an employment application clearly informing applicants that dishonest responses can lead to non-hire or even firing will be upheld by a court.
 

The 8th U.S. Circuit Court of Appeals recently held that jury was justified in finding that an employer is not required to engage in an onsite evaluation to interactively create a reasonable accommodation for a disabled employee, if a treating physician’s restrictions would prevent that individual from performing those essential functions at all. Hohn v. BNSF Railway Co., 8th Cir., No. 12-1041, February 28, 3013.

Frank Hohn was hired by BNSF Railway Co. (“BNSF”) in 1997 as a locomotive machinist at the railway’s facility in Alliance, Nebraska. As a locomotive machinist, Hohn performed servicing, maintenance, and troubleshooting functions, which included frequent use of machinery, walking on uneven surfaces, stooping, kneeling, climbing ladders, and working in a 360 degree visual field, meaning that Hohn worked “within, around, over and under locomotives.”

In 2004, Hohn’s supervisors and co-workers noticed that Hohn was displaying signs of vision impairment, including walking slowly and cautiously, missing handrails onto which he tried to grab, and not seeing people approaching from the side. Hohn ultimately was diagnosed with advanced stage retinitis pigmentosa, a degenerative eye disease which causes tunnel vision and often leads to blindness. Hohn’s optometrist recommended restrictions for Hohn that included no climbing or working on unprotected heights, no operating vehicles or machinery, and no jobs that required more than 15 degrees of visual field.

BNSF’s medical field officer, Dr. Clark, reviewed the restrictions, and agreed with them. In light of those restrictions, it was determined that Hohn was unable to perform the essential functions of the machinist position. Although the company’s regional medical director supported an on-site evaluation to determine whether any accommodations existed that could return Hohn to work, Dr. Clark concluded that Hohn could not perform an on-site evaluation without running afoul of the restrictions imposed. Hohn was not allowed to return to work, and ultimately filed a lawsuit alleging violation of the Americans with Disabilities Act and the Nebraska Equal Opportunities Commission. His case went to trial at which the jury found in favor of BNSF on the disability discrimination and retaliations claims. (Hohn also filed a whistleblower claim that was dismissed on summary judgment and, therefore, was not heard by the jury.)

The Eighth Circuit upheld the jury verdict, finding that in order for Hohn to have prevailed at trial, the jury would have had to find that Hohn could have performed the essential functions of his machinist position, with or without accommodation. However, because Hohn’s restrictions – imposed by his own doctor – essentially precluded Hohn from returning to the workplace under any circumstances, the company was unable to develop or implement any accommodations that would have been consistent with the restrictions.

At trial, Hohn disputed the restrictions, testifying that he could have performed the duties. However, he failed to provide any medical evidence of that fact or to contradict the restrictions imposed by his own optometrist. The jury verdict, then, was not “against the weight of the evidence,” because, according to the court, the ADA “does not require en employer to permit an employee to perform a job function that the employee’s physician has forbidden.”

While the rationale of this holding seems somewhat circular, the issue is straightforward. Under the ADA and parallel state statutes, an employee must be able to perform the essential functions of his position, with or without accommodation, in order to be employed. In this holding, the Eighth Circuit stated that because Hohn’s own doctor found that there were no circumstances under which Hohn could perform the essential functions of his position, BNSF was justified in assuming, from that fact, that no reasonable accommodation existed which would have allowed Hohn to return to work.

Employers should not draw from this case the conclusion that an employee with extensive medical restrictions can never be accommodated. To the contrary, had Hohn shown that there was an open position for which he was qualified and into which he could have moved, the result of the jury trial and, perhaps, the appellate decision, may have been different. This decision was based primarily on the fact that the Eighth Circuit’s review in this case was to determine whether or not the jury’s verdict was against the weight of the evidence. The court found that it was not.
 

Based on the number of “Facebook” decisions from the National Labor Relations Board over the past two years, most employers understand that when employee Facebook postings constitute “protected activity” under the National Labor Relations Act, the postings can be legally protected. However, the NLRA is not the only federal law that can be implicated in Facebook-related firings. A federal district court in Michigan recently held that a hospital that fired an employee while she was on medical leave did not violate the Family and Medical Leave Act (FMLA), because the employee had posted – on her Facebook page – photos and text about vacation activities that were inconsistent with her medical restrictions, and then lied about those activities. Lineberry v. Richards, E.D.Mich., No. 2:11-13752, February 5, 2011.

The FMLA prohibits employers from discriminating against or retaliating against employees for taking FMLA leave, and provides that an employee returning from such leave shall be reinstated to his or her employment position or an equivalent position. However, the regulations associated with the FMLA establish that interference with an employee’s rights does not constitute a violation of the FMLA if there existed a “legitimate business reason” unrelated to the exercise of FMLA rights for the employer’s action. Therefore, an employer can avoid FMLA liability by showing that it would have taken the adverse action even absent the employee’s leave under that Act.

Carol Lineberry had been employed by the Detroit Medical Center (DMC) as a Registered Nurse for over a year when she injured her back in a work-related incident in January 2011. After Lineberry’s physician ordered her not to return to work, Lineberry requested and was granted FMLA leave from January 27 through April 27, 2011, as well as over $3,000 in short-term disability (STD) benefits. During that leave, Lineberry took a pre-planned, pre-paid vacation to Mexico from February 26 to March 2, 2011. Her physician okayed the trip, stating that he believed that it would not be as physically demanding as Lineberry’s performance of her work duties, which had included 12-hour work days of walking and moving patients on stretchers.

While on vacation, Lineberry posted photos of herself riding in a motorboat, and holding her young grandchildren, one in each arm, as she stood. She also posted details of her days, which included baby-sitting those grandchildren and various other physical activities. Based on those postings, Lineberry’s co-workers complained to Lineberry’s supervisor about activities that they considered to be “abuse” of Lineberry’s FMLA leave. The supervisor e-mailed Lineberry, after Lineberry complained that she had not received a get-well card from the staff, stating that since Lineberry was “well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming that you would be well enough to come back to work” after the vacation. Lineberry responded that she “was in a wheelchair” at the airports because she was “unable to stand for more than 10 minutes at a time.”

Lineberry’s supervisor relayed the information and the co-workers’ complaints to DMC’s Loss Time Management Department (LTM), who then asked Lineberry’s physician for additional clarification on Lineberry’s restrictions. On March 30, 2011, the physician informed DMC that Lineberry’s restrictions during her leave included standing for only 15-minute intervals, a lifting restriction of 5-10 pounds, and no pushing or pulling more than 20 pounds.

Based on that information, and in light of a progressive discipline policy that require an investigative meeting facing termination, Lineberry was asked to attend an April 19, 2011 meeting with a number of DMC managers, including the director of security investigations. At that meeting, Lineberry initially restated her claim that she had used a wheelchair in all airports during her travel, but rescinded that statement when reminded that airports have security films that could be reviewed; she then admitted that she had lied about that fact in her e-mail to her supervisor. Lineberry also admitted to holding her grandchildren. Lineberry’s employment was terminated after that meeting, based on the recommendation of DMC’s Human Resources department.

Lineberry filed a lawsuit against DMC and a number of individuals who were involved in the meeting and the termination decision, alleging interference with her FMLA leave and retaliation for taking that leave. DMC filed a counter-claim for reimbursement of the STD benefits. The district court granted the defendants’ motion for summary judgment on two bases.

First, the court found that because Lineberry lied about using the wheelchair and admitted that lie, that point was undisputed and, therefore, DMC treated Lineberry as they would have whether or not she was on FMLA leave when it fired her for her dishonesty. Second, the court found that DMC was entitled to summary judgment under the “honest belief” doctrine, which states that an employer can successfully defend an FMLA lawsuit if it shows that it acted upon its honest belief – based on particularized facts – that the employee has misused an FMLA leave. Here, Lineberry’s admitted dissembling about the wheelchair, and her Facebook postings about her activities, caused DMC to believe that Lineberry had abused her FMLA leave and led directly to her firing.

This decision does not mean that every vacation-related Facebook posting should lead to termination, nor does it mean that those posting always will create an “honest belief” that an employee has abused FMLA leave. However, in this instance, the hospital’s compliance with its own disciplinary policy, and its interaction with the doctor to obtain appropriate information about Lineberry’s restrictions before taking adverse action against Lineberry, indicate an awareness of the FMLA and its associated regulations which provide a strong model for other employers to follow. It also is worth noting that this a district court decision that could yet be appealed to a federal appellate court.
 

Employers are aware of the fact that the Americans with Disabilities Act (ADA) requires them to engage in an interactive process in order to determine whether a disabled individual can be accommodated to assist him or her in performing the essential functions of a job. In determining the essential functions of a position, most employers assume that physical presence and arrival at work at a consistent time are essential functions of most jobs. However, the 2d U.S. Circuit Court of Appeal recently reversed summary judgment in favor of an employer, and returned the case to the lower court for additional factual analysis of whether an individual whose medication kept him from coming to work on time could be disciplined for attendance violations based upon that lateness. McMillan v. City of New York, 2d Cir., No. 11-3932, March 4, 2013.

Rodney McMillan has schizophrenia and, with calibrated medication, has been employed by the City of New York, first for ten years as a case manager with the City’s Human Resources Administration (HRA) and then, since 1997, as a case manager for the HRA Community Alternative Systems Agency (the Agency). In that job, McMillan conducts home visits, processes social assessments, and meets with clients on a daily basis in the Agency’s office.

The Agency has a flex-time policy which allows employees to arrive at work between 9:00 and 10:00 a.m. (although, because of elevator wait-time, an employee is not considered late until 10:15), and leave between 5:00 and 6:00 p.m., so long as they work 35 hours each week, excluding a one-hour break for lunch. Tardiness can be “approved” or “disapproved” by a supervisor. When tardiness is approved, an employee may use sick leave or other “banked” time – additional hours worked – to cover the time missed in order to be paid for a full week of work. However, an employee who has no time banked, or does not wish to use banked time, simply is not paid for the missed time. Tardiness that is disapproved can lead to disciplinary action.

McMillan’s medication makes him drowsy and sluggish in the morning, which often makes him late for work, meaning he comes in after 10:15 in the morning. There is no dispute that McMillan’s inability to get to work on time is a function of the treatment for his condition. 
                                                                                                                                                                               For a period of at least 10 years prior to 2008, McMillan’s tardiness was either explicitly or tacitly approved. However, in 2008, his supervisor (Thornton), at the direction of her supervisor (Belthrop) refused to approve any more of McMillan’s late arrivals. McMillan then made a request for a later start time to avoid discipline for tardiness, but was told that a later start time was not possible because McMillan would then have to work after 6:00 p.m., after which no supervisors were present. McMillan also stated that he would be willing to work through his lunch hour and “bank” that time in order to make up for his late start. That suggestion also was rejected.

In May of 2009, McMillan was fined eight days’ pay for late arrivals. In December 2009, Belthrop recommended additional discipline based on McMillan’s “long history of tardiness,” and the City subsequently recommended that McMillan’s employment be terminated. Ultimately, the City reduced the recommended sanction from termination to a 30-day suspension without pay.

McMillan sued the City, alleging violation of the ADA. In support of his claim, McMillan argued that his requested accommodations were reasonable, as he often worked past 7:00 p.m. (the office actually is open until 10:00 p.m.), so he could arrive late and still work the required 35 hours a week.

The district court granted summary judgment for the City, and dismissed all of McMillan’s claims, holding that the court was “required to give considerable deference to the employer’s judgment” as to whether timely arrival at work was an essential function of a particular job. On appeal, however, the Second Circuit reversed, finding that while a “timely arrival is normally an essential function,” the lower court did not conduct a fact-specific inquiry into McMillan’s situation. Instead, the lower court “appears to have simply assumed that McMillan’s job required at least seven hours of work each day and that the work could not be successfully performed by banking time on some days to cover tardiness on others.”

However, the Second Circuit pointed out a number of circumstances that called that conclusion into question, including the facts that McMillan’s lateness had been allowed for years without discipline, and that the City allows flex time hours and regularly permits employees to “bank” time to cover certain late arrivals, all of which undermine the City’s assertion that it would have been an undue hardship to grant McMillan’s request for modified work hours.

The take-away for employers in this case is that the Second Circuit’s reversal of the favorable decision for the employer was based on the fact that the lower court simply accepted the City’s assertion that McMillan’s requested accommodation of further variation to his work hours would have been an undue hardship for the City. An employer who is analyzing a disabled employee’s request for accommodation must be able to compile and present factual, statistical, or narrative evidence of the manner in which a proposed accommodation would create an undue hardship, in order to both effectively accommodate the employee in a fair and reasonable manner, and to defeat any potential failure-to-accommodate claim under the ADA.