By: Ogletree Deakins

The use of light duty assignments to employees who are returning to work after recuperation from an illness or injury is an often used mechanism. The 7th U.S. Circuit Court of Appeals has held that neither the Family and Medical Leave Act (FMLA) nor the Americans with Disabilities Act (ADA) creates an obligation for an employer to provide light duty work to an individual who is unable – with or without accommodation – to return to the essential functions of his job. James v. Hyatt Regency Chicago, 7th Cir., No. 1:09-cv-07873, February 13, 2013.

Carris James began his employment with the Hyatt Regency Chicago in 1985 as a banquet steward, responsible for maintaining the cleanliness of banquet and food service areas, which included lifting pots and pans, and transporting trash containers around those areas. At that time, James informed Hyatt of his vision problem, which was correctable with eyeglasses and magnifying glasses. Hyatt accommodated James by increasing the print size of his work assignments and schedule.

In March 2007, James was punched in the eye during a non-work-related incident, and developed aretinal detachment for which he underwent surgery in the following month. When Hyatt’s human resources department learned that James’ absence was related to a medical issue, it  provided information to James regardingFMLA leave. On April 24, 2007, James’ physician, Dr. Scott, stated that James could return to “light duty” on May 10, but did not say for how long James would require that light duty assignment. On April 25, James requested FMLA leave, which was applied retroactively to include James’ prior absences.

On May 9, 2007, James provided to Hyatt additional paperwork that indicated that James was “unable to work in any capacity.” James subsequently received disability benefits based upon that information. In addition, on May 11, James submitted a medical certification to Hyatt stating that his condition could possibly lead to permanent incapacity.

James’ 12 weeks of FMLA ended on July 13, 2007, but the collective bargaining agreement between the union and Hyatt provided job-protected leave for up to one year from his original absence. In August, James submitted various paperwork to Hyatt, including one release that stated that he could return to work although “visually impaired,” and others in which Dr. Scott continued to represent that James was incapable of working in any capacity.

On September 25, James faxed a note to Hyatt from yet another doctor who stated that James could return to work with lifting and bending restrictions, which would have precluded James from returning to the steward position. Following that, Hyatt attempted to contact James seeking additional information, but no clarification was provided until January 2008, when Hyatt’s Workers Compensation and Safety Manager sent a letter directly to Dr. Scott, enclosing a return to work certification form, as well as a job analysis for the banquet steward position. Dr. Scott responded, stating that James could return to work, but could not complete any task that required better than 20/200 vision. Hyatt then met with James and scheduled a return to work in the same position, shift, and seniority level as before James’ medical leave.
 

In 2009, James filed a lawsuit, claiming that Hyatt had interfered with his FMLA leave and had discriminated against him under the ADA by failing to allow him to return to work on light duty in May 2007. The lower court’s decision to grant summary judgment in favor of Hyatt on both claims was upheld by the Seventh Circuit on appeal.

First, the Court quoted the language of the FMLA and stated that “if an employee cannot perform an essential function of [his] original position because of a physical or mental condition, the employee has no right to restoration to a different position under the FMLA.” While the FMLA requires an employer to restore an employee to the position held at the time the FMLA leave began, or to an “equivalent” position, that law does not require an employer to restore an employee to a light duty (which clearly is not an equivalent) position simply to allow him or her to return prior to the expiration of the leave time allowed.

Next, the Court addressed James’ ADA claim that Hyatt had failed to accommodate him by pointing out that Hyatt had accommodated James’ visual impairment throughout James’ employment, beginning in 1985. It also pointed out that the “conditional” and, at times, contradictory releases being provided by James, along with the application for disability benefits which stated that James was unable to work in any capacity, did not provide information to Hyatt sufficient for the company to understand the true nature of James’ condition, or to formulate or implement a reasonable accommodation.

This case provides a road map to employers faced with the increasingly frequent situation in which there are both FMLA and ADA issues. First, once the company learned that James’ absence was medically related, it provided FMLA paperwork. During James’ leave, Hyatt requested medical updates in an attempt to understand if and when James could return to work, and to determine the extent of his medical impairment. When those updates were not forthcoming, and rather than make assumptions based on contradictory reports, Hyatt requested – directly from the medical provider – clarification of James’ medical condition, and included return-to-work certification forms as well as a detailed job description to allow the doctor to determine whether James could return to his position with or without accommodation under the ADA. It was the company’s action that ultimately led to James’ return to his position, and the company’s considered and persistent attention to the issues that led to a successful result in this case.
 

On January 25, 2013, a three-member panel of the D.C. Circuit Court of Appeals issued a decision in finding that the recess appointments to the National Labor Relations Board (NLRB or Board) by President Obama on January 4, 2012 were unconstitutional. Noel Canning v. NLRB, No. 12-1115, D.C. Circuit Court of Appeals (January 25, 2013). In an opinion on a case before it on appeal, the court held that the NLRB lacked a quorum of three members when it issued the decision on appeal, because the appointments did not occur during a "recess" of the Senate, as required by the U.S. Constitution. This ruling stands to have broad ramifications as it calls into question the validity of all of the decisions made by the Board dating back to January 4, 2012.

The case on appeal before the D.C. Circuit arose from an unfair labor practice charge brought against Noel Canning, a bottler and distributor in the state of Washington. An administrative law judge (ALJ) ruled that the company violated the National Labor Relations Act by refusing to reduce to writing and execute upon a collective bargaining agreement reached with the union. The ALJ then ordered Noel Canning to sign the agreement. The company appealed this decision to the NLRB. The Board affirmed the ALJ’s decision, and the company ultimately appealed the matter to the D.C. Circuit Court of Appeals.

On appeal, Noel Canning made certain substantive arguments related to the final agreement between the parties, but also challenged the authority of the Board to issue an order on two constitutional grounds. First, it claimed that the NLRB lacked a quorum under the applicable statute, because three members of the five-member Board were appointed when the Senate was not in recess. Second, it argued that the vacancies filled by these three members did not "happen during the Recess of the Senate" as required by the U.S. Constitution.

After finding that the Board’s decision was valid on statutory grounds, the D.C. Circuit turned to the constitutional arguments. Under Article II, Section 2, Clause 3 of the U.S. Constitution (also referred to as the Recess Appointments Clause), "[t]he President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." Pursuant to this provision, President Obama on January 4, 2012 appointed three members to the NLRB. At the time of those appointments, the Senate was, in fact, conducting pro forma sessions every three days, by agreement, over a two week period.

Noel Canning contended that the President’s appointments were invalid because they were not appointed during an actual "recess" of the Senate. Specifically, the company argued that the term “recess” refers to the intersession recess of the Senate (the period between sessions) when the Senate is not available to act upon nominations from the President. After carefully considering the plain text, history, and structure of the U.S. Constitution, the D.C. Circuit agreed with the company, stating that "To adopt the Board’s proffered intrasession interpretation of ‘the Recess,’" the court held, "would wholly defeat the purpose of the [f]ramers in the careful separation of powers structure reflected in the Appointments Clause [of the U.S. Constitution]." Thus, because the Board lacked a quorum of three members when it issued the ruling in the Noel Canning matter, the appellate court vacated the Board’s decision.

According to Harold P. Coxson, a principal with Ogletree Governmental Affairs, Inc. and shareholder in the firm’s Washington, DC office: "This is a seminal decision which is a ‘game changer’ for the NLRB and the parties subject to its jurisdiction. Under controlling U.S. Supreme Court precedent, this decision could mean that Board decisions issued since the invalid recess appointments were made – January 4, 2012 – lacked a quorum and will have to be recalled and re-decided by the Board. Coxson also adds that: "Although we can expect the Board to seek en banc review of the panel’s decision by the full D.C. Circuit, and then perhaps by the U.S. Supreme Court, it is unclear what the Board and the Obama Administration will do in the interim. It may not affect the actions of the Board’s ‘Acting’ General Counsel Lafe Solomon, himself appointed under the federal Vacancies Act, which has also been challenged – except, perhaps, where he seeks Board enforcement."

Additional Information

This important ruling and other issues relevant to the labor and employment law agenda will be addressed in detail during Ogletree Deakins’ 2013 Legislative and Regulatory Program on February 21 and 22 at the Renaissance Washington, DC Downtown Hotel. To view the full seminar agenda, click here. To register for the program, contact Kim Beam at (800) 277-1410 or e-mail her at kim.beam@ogletreedeakins.com.
 

 

In an unpublished opinion, the 6th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who refused to convert a light-duty position into a permanent job for a disabled employee.  Wardia v. Campbell County Regional Justice Dept. of Corrections, 6th Cir., No. 12-5337, January 3, 2013. In that case, a juvenile detention center employee who was unable to engage in the physical actions related to restraining juveniles in the facility was discharged, in spite of the fact that he asserted his ability to continue to work indefinitely in a light-duty position into which he had been placed on a temporary basis.

John Wardia became employed as a Youth Worker at the Campbell County, Kentucky, Juvenile Detention Center in 2003.  In that position, Wardia supervised and monitored the activities of juveniles committed to the facility, assisted with their “interpersonal skill development,” and engaged in various administrative tasks.  Youth workers are required to undergo a three-month long “safe-physical-management-skills” training upon hire, and participate in additional training on a monthly basis.  While physical restraint actions are not frequent, the written job description of the Youth Worker position lists the ability to perform physical restraints on juveniles as an essential function of the position.

In or around 2008, Wardia underwent surgery for a non-work-related neck injury.  Because his condition prevented him from performing physical restraint actions on the juveniles, Wardia requested, and was granted, the temporary accommodation of working in the detention center’s control room upon his return to work after surgery.  Subsequently, Wardia’s physician provided information that Wardia’s condition would be permanent, and Wardia was placed on leave without pay on October 18, 2009, to be considered as having resigned if he could not return to work within a one-year period.

Two weeks prior to the expiration of that one-year period, Wardia requested permanent assignment to the control room position to which he previously had been assigned as light-duty, asking for that assignment as a reasonable accommodation for his disability.  After a pre-termination hearing, the County’s Department of Juvenile Justice decided against making the assignment on a permanent basis, and issued a final notice of termination to Wardia.  Wardia filed a lawsuit alleging disability discrimination, and arguing that the restraint of juveniles was not, in fact, an essential function of the Youth Worker position, since it was rarely necessary for employees to restrain the juveniles.  Further, Wardia argued that even if that function was determined to be essential, the permanent assignment to the control room was reasonable.

The lower court disagreed with Wardia’s assertions, and granted the County’s motion for summary judgment.  That decision was upheld by the Sixth Circuit, who made two notable holdings: (1) in assessing the “essential function” designation of an activity that is rarely performed, a court will look to the seriousness of the consequences of non-performance; and (2) temporary light-duty positions established for recuperating employees need not be converted into permanent positions.

In Wardia’s circumstance, the court determined that the ability to perform physical restraints on the juveniles was, in fact, essential.  The potential for physical confrontation exists on a daily basis at the facility, and a staff member who is unable to restrain a juvenile may subject him-or herself and the facility to liability from injured employees or juveniles.  Wardia’s assertion that certain workers needed assistance with the restraint function was unconvincing to the Court, which stated that “Simply because some employees more often and more capably perform a certain function does not make it any less essential for everyone else.”  Because Wardia was unable to disprove the “essential” nature of the physical retraint function, the Court proceeded to address the question of whether Wardia’s request for accommodation was reasonable.

Reasonable accommodation analysis under the ADA requires that a plaintiff propose an accommodation that is objectively reasonable, thereby shifting the burden to his or her employer to prove that the request is unreasonable under the specific facts.  Wardia made two requests: to work all functions other than the physical restraint function, which would have to be handled by co-workers; and permanent assignment to the light-duty control room position.  The Sixth Circuit held that neither was reasonable.  First, it determined that the need for assistance with the essential physical restraint function is not reasonable because the ADA does not require employers to accommodate individuals by shifting an essential job function to others.  Any other approach would render the “essential function” step of the analysis as meaningless.  Second, the Court held that permanent assignment to a light-duty or rotating position is not reasonable, as it would shift Wardia’s essential job functions to others, leaving his co-workers with the physical restraint functions, as well as his direct juvenile contact functions.  The Court, citing a prior Sixth Circuit decision, found that temporary light-duty positions for recuperating employees need not be converted into permanent positions. To hold otherwise would frustrate the purpose of the ADA.

While this case arguably assists employers in an often difficult situation of whether to return an employee to work after a lengthy medical-related absence, the fact that the employer in this case was a juvenile detention facility and that the safety of residents and employees was one of the factors in the essential nature of the function at issue may have had a role in the ultimate decision. Employers should react carefully when faced with similar circumstances, and should thoroughly and objectively evaluate whether a function is actually essential.  However the Court’s decision regarding the necessity for making a temporary light-duty position into a permanent role is more universally applicable, and can be considered – again, with objective rationale and documented reasoning – in most circumstances.
 

The 6th U.S. Circuit Court of Appeals recently addressed an issue of first impression, finding that the ability to hear is not necessarily an “essential function” of the job of lifeguard. Keith v. County of Oakland, 6th Cir., No. 11-2276, January 10, 2013. In addition, however, the Court made a number of other, more generally applicable observations. The most noteworthy is a statement that seems to create an obligation on the part of an employer to fully understand the background and experience of any expert who is relied upon to assist in determining whether a disabled individual can be accommodated in a particular position.

Nicholas Keith has been deaf since his birth in 1980. He communicates primarily by using American Sign Language (ASL), but can detect noises – including alarms, whistles, and loud voices – through a cochlear implant. In 2006, Keith enrolled in and successfully completed a junior lifeguard training course conducted by Oakland County, Michigan, using an ASL interpreter to relay verbal instructions to him. In 2007, Keith successfully completed the County’s lifeguard training course, again with the assistance of an interpreter, although Keith executed all lifesaving tasks and training techniques himself.

Upon successful completion of the trainings, Keith applied for a part-time lifeguard position at the County’s wave pool, asking only that an ASL interpreter be present at staff meetings and further classroom instruction. Katherine Stavale, the County’s recreation specialist, offered the position to Keith, contingent upon a pre-employment physical. At the physical examination, the County’s doctor, Paul Work, reviewed Keith’s medical history and stated to Keith’s mother, “He’s deaf; he can’t be a lifeguard,” adding that he (the doctor) would be sued if “something happens.”

Based on Work’s opinion, Stavale placed the offer on hold and contacted Ellis & Associates, a group of aquatic safety/risk management consultants used by the County regarding its water parks and lifeguard training program. Stavale discussed Keith’s situation with a client manager and a vice president from Ellis in an attempt to determine whether and how to accommodate Keith. Neither of those individuals had any education, training, or experience regarding the ability of deaf people to work as lifeguards, and did not research the issue. In spite of a 6-page outline prepared by Stavale setting forth accommodations that she believed could successfully integrate Keith, the consultants remained concerned about Keith’s ability to function effectively as a lifeguard. The client manager specifically stated that “without 100 percent certainty that [the proposed accommodations] would always be effective, I don’t think you could safely have [Keith] on the stand by himself.” Based on the input from Ellis, the employment offer to Keith was withdrawn.

Keith filed a lawsuit, claiming disability discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The district court granted summary judgment in favor of the County, finding that although Dr. Work’s cursory medical examination and conclusory decision about Keith’s ability to be a lifeguard did not constitute the “individualized inquiry” required under the ADA, the County’s own inquiries and discussions with Keith did so. The court also concluded that Keith failed to show that he could perform the “essential communication functions” of a lifeguard and that, therefore, there had been no violation of the statutes.

On appeal, the Sixth Circuit reversed that decision, stating that whether a job function is essential typically is a factual question for the jury, and not a legal question for a court on summary judgment. Further, it pointed out that unlike the consultants from Ellis & Associates, one expert who provided input on behalf of Keith worked extensively with hearing impaired individuals and was a certified training instructor who has worked with deaf individuals in the field of lifeguarding and aquatics, certifying over 1000 deaf lifeguards through American Red Cross training programs. Keith also provided testimony from a physician specializing in neurodevelopmental disabilities who had worked with hearing impaired individuals for over 30 years, and who stated an opinion that in a noisy swimming area, recognizing a potential problem is almost completely visually based. It was this doctor’s opinion that Keith’s deafness should neither disqualify him as a lifeguard nor require constant accommodation.

The Sixth Circuit found that the County initially had participated in an “interactive process” with Keith, compiling a list of ways in which he could be successfully accommodated in the lifeguard position. However, the County ultimately withdrew the employment offer after it consulted with Ellis & Associates, who based its advice on non-specific assumptions and generalizations regarding hearing-impaired individuals. The Court found that fact-based questions existed that were sufficient to reverse the lower court’s dismissal of the case, and to send it back to that court for a trial by jury.

In assessing the sufficiency of the County’s participation in the required interactive process, the Court made a statement that should get the attention of any employer who is involved in determining the reasonableness of an employee or applicant’s requested accommodation: “Because it strikes us as incongruent with the underlying objective of the ADA for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not, we direct the district court to consider [the question of why the County rejected Keith’s requested accommodation] on remand.” In other words, the County’s deference to its consultant’s opinion on the issue of how to accommodate Keith may vitiate the County’s compliance with the ADA’s requirement regarding the interactive process. Based on that statement, any employer relying on input from a third party to assess the reasonableness of accommodations requested by an employee or applicant should determine whether the input was obtained from an individualized assessment, or was simply based upon assumptions and non-specific information. Without an individualized review by the consultant, the employer could lose the benefit of its own initial participation in the required interactive process.

 

A federal district court in Ohio has refused to dismiss a complaint for religious discrimination made by a hospital employee after the employee was fired for refusing to be vaccinated for the flu. The basis of the refusal to be vaccinated was the employee’s veganism. The Court denied the employer’s motion to dismiss, holding that the plaintiff’s beliefs were sincerely held and, therefore, merited protection under the law. Chenzira v. Cincinnati Children’s Medical Center, S.D. Ohio, No. 1:11-cv-00917 (12/27/12).

Sakile Chenzira, a confirmed vegan, was employed by Cincinnati Children’s Medical Center (“CCMC”) as a Customer Service Representative for over 10 years. A vegan does not ingest any animal or animal by-products. Until 2010, Chenzira was allowed to forego a flu vaccine, which included animal by-products, without disciplinary action being taken against her. In 2010, when Chenzira refused the mandatory vaccine, she was fired. In response, she filed a charge of religious discrimination with the EEOC, and ultimately filed a lawsuit in federal court alleging religious discrimination, along with a related state claim for violation of public policy. CCMC filed a motion to dismiss the complaint, arguing that veganism is not a religion. That motion was denied (although the hospital’s motion to dismiss the state law public policy claim was granted).

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) requires a court to determine whether a “cognizable claim” has been pled in a complaint. A plaintiff’s complaint survives such a motion if it contains sufficient factual matter that, if accepted as true, states a plausible claim to relief. In response to CCMC’s argument that Chenzira’s veganism was simply a “social philosophy or dietary preference,” the Court pointed out that Chenzira’s claim was supported by the EEOC’s regulations, which state that “religious practices” include moral or ethical beliefs as to what is right and wrong which are “sincerely held with the strength of religious views.” Further, Chenzira provided to the Court an essay entitled “The Biblical Basis of Veganism,” and cited Biblical passages in support of her claims.

The Court found that in the context of a motion to dismiss, Chinzera set forth a “plausible” claim that she ascribes to veganism with a sincerity equating that of traditional religious views.  (In a largely unsuccessful attempt to clarify that characterization, the court pointed out that “plausibility” falls “somewhere between probability and possibility.”)  In addition, the fact that Chinzira previously had been exempted from the vaccine, along with the EEOC regulations which make it clear that “it is not necessary that a religious group espouse a belief before it can qualify as religious,” helped to support the Court’s decision that it was inappropriate to dismiss Chinzera’s claims for religious discrimination under Federal Rule 12(b)6).

This case was decided on specific facts, and does not create a new category of “religious beliefs,” nor does it mean that veganism must be accommodated in every circumstance.  Importantly, the Court added a comment in its opinion that may be critical to the ultimate outcome of the case: “The Court’s ruling in no way addresses what it anticipates as [CCMC’s] justification for its termination of [Chinzera], the safety of patients at Children’s Hospital.  At this juncture, there is simply no evidence before the Court regarding what, if any, contact [Chinzera] might have with patients, and/or what sort of risk her refusal to receive the vaccination could pose in the context of her employment.”  Here, the Court simply ruled on the sufficiency of the religious discrimination claim filed by Chinzera, finding that she alleged beliefs that may deserve legal protection.  The decision is not a determination on the merits of the claims or the defenses.
 

The 11th U.S. Circuit Court of Appeals reversed summary judgment in favor of an employer, holding that a plaintiff’s testimony and evidence related to her transfer to a position of less responsibility upon return from Family and Medical Leave Act (FMLA) leave created an issue of material fact that required a jury to determine whether the employer had interfered with the employee’s FMLA leave.  Rodriguez v. University of Miami Hospital, 11th Cir., No. 11-15206, December 3, 2012.

Iliana Rodriguez requested and was granted FMLA leave from her administrative position at the University of Miami Hospital.  Upon her return from leave, Rodriguez met with a number of individuals, including her supervisor, Francetta Allen, and the Hospital’s Executive Director of Human Resources, Errol Douglas.  At that meeting, it was determined that Rodriguez would be transferred to a temporary position, based on her admitted inability to get along with Allen.  While the temporary position was at the same level of pay and benefits, the new position had significantly less responsibility and, in fact, consisted largely of copying documents.  Six weeks after being transferred to that position, Rodriguez was fired.  She then filed a lawsuit, alleging that the Hospital interfered with her right to reinstatement under the FMLA by failing to return her to her original position, and then fired her in retaliation for taking such leave.  The district court granted summary judgment in favor of the Hospital on both claims.

In an unpublished opinion, the Eleventh Circuit upheld the summary judgment on Rodriguez’s retaliation claim, holding that there no evidence that the Hospital’s reasons for the termination – that Rodriguez could not get along with her supervisor, and was unable to find another acceptable job within the Hospital – were false.  Rodriguez therefore could not show a causal nexus between her FMLA leave and her firing, and her retaliation claim was dismissed.

However, an FMLA interference claim is analyzed differently than a retaliation claim.  According to the Eleventh Circuit, if an employee is not reinstated to the same or an equivalent position, the employer bears the ultimate burden of proving that its action was taken for independent reasons that were unrelated to the employee’s leave.  Therefore, in this case, the Court had to determine whether there was any genuine issue of material fact regarding the Hospital’s defense that it had transferred Rodriguez to the temporary, lesser position for reasons unrelated to Rodriguez’s FMLA leave.

An employer is not liable for failing to reinstate an employee to her former position if the employer can show that the employee cannot perform the essential functions of her original position.  Further, in that instance, an employer is not obligated or required to restore the employee to any other position.  In this case, the Hospital argued that it transferred Rodriguez upon her return from leave because she was unable to perform the essential functions of her original position, which included being able to get along with her supervisor, Francetta Allen.  Had the record unquestionably established that Rodriguez and Allen could not work together, the Hospital would have met its burden that the transfer was “wholly unrelated” to Rodriguez’s FMLA leave, and the interference claim could have been dismissed.

However, based on deposition testimony and a lack of documentary evidence that Rodriguez and Allen had been unable to get along prior to the FMLA leave, the Court was able to find disputed issues of material fact that precluded summary judgment in favor of the Hospital.  Contrary to the Hospital’s assertion that Rodriguez was unable and unwilling to work with Allen, Rodriguez testified that she had asked for the meeting with Allen and Douglas upon her return from leave in order to “address whatever issue was there” and to move on, as she did not want to lose her job. 

In addition, in spite of the Hospital’s statement that Rodriguez’s issues with Allen pre-dated her return from FMLA leave, there was no documentary evidence of any performance deficiencies or difficulties between Rodriguez and Allen until the meeting held at the time of Rodriguez’s return.  Indeed, Allen first documented her issues with Rodriguez in an e-mail sent to Douglas one hour before that meeting.  Because there are disputed issues of material fact underlying the Hospital’s defenses against Rodriguez’s interference claim, the Court determined that it is for a jury to decide whether those defenses constitute an honest explanation of the reason that Rodriguez was not returned to her position upon returning from FMLA leave.  The Court remanded the case to the district court for further action on that issue.

This case is another in a series of recent federal court cases in which a court points out an important difference between the analysis of an FMLA retaliation claim and an FMLA interference claim for purposes of summary judgment.  In a retaliation claim, the ultimate burden of proof is on the employee – under the oft-cited McDonnell-Douglas 3-step shifting burden analysis – to show that an employer’s reason for its action is simply a pretext for retaliation.  However, in an interference claim, the ultimate burden is on the employer to prove its defense that its action was based on independent reasons that were unrelated to the employee’s FMLA leave, and to prove it without any question of material fact.  In this case, the Hospital was unable to carry that burden, and the matter will be returned to the lower court in order to allow a jury to decide the issue.

 

According to the 8th U.S. Circuit Court of Appeals, the Uniformed Services Employment and Reemployment Rights Act (USERRA) requirement that a returning service member be reemployed in the position that he or she would have occupied had that employment not been interrupted by a military commitment does not preclude layoff or termination of a returning service member. Milhauser v. Minco Products, Inc., 8th Cir., No. 12-1756, December 5, 2012.

The clause that guarantees reemployment to returning service members often is referred to as the “escalator” principle, as it imagines the employee on the step of an escalator that continues to move up or down during the period of military leave. A returning service member does not return to the same position upon reemployment, but rather is placed into the position into which his or her “escalator step” has moved during the period of leave, and no better or no worse.

Douglas Milhauser worked as a maintenance technician at Minco Products beginning in 2006. During his employment, Milhauser’s performance was considered to be poor. His work was inconsistent, other employees complained about his attitude, and he received at least one written reprimand from his supervisors.

In 2008, customer orders began to decline, and Minco posted its first ever annual loss. When orders continued to decline in 2009, Minco began to take cost-cutting actions, including reducing overtime, pay cuts and, ultimately, reductions in its workforce. In March of 2009, Minco eliminated 18 jobs, with plans to cut 32 more in June.

Between 2007 and 2009, Milhauser was called to military duty three times. During his last deployment, Milhauser suffered a severe reaction to a vaccine, which ended his military service in May 2009. Milhauser reported back to Minco on June 3, 2009. During that same time period, Milhauser’s supervisor was asked to name four employees of the 13 who he supervised, to be considered for termination. The termination criteria was based on job duties, technical expertise, and certain subjective factors including attitude and work ethic. The supervisor included Milhauser in the recommended list for termination, partly on the basis that Milhauser’s areas of specialization duplicated those of other employees, and could be readily absorbed by the remaining technicians. Milhausen was dismissed in the second round of cuts, and was informed of that fact when he reported back to work on June 3.

Milhauser’s ensuing lawsuit against Minco went to trial, during which Minco presented evidence of Milhauser’s poor performance and the difficult economic conditions upon which the reductions in force were based. At trial, the jury found in favor of Minco. Milhauser appealed his claim that Minco had failed to provide reemployment as required by the USERRA. In the appeal, Milhauser argued that under the USERRA, termination was not a possible reemployment position.

The Eighth Circuit disagreed and upheld the jury’s verdict, finding that the jury’s decision – that Milhauser’s “position of employment” would have been terminated, even had he not left for military service – is entirely consistent with the USERRA. The escalator principle requires that an employee’s career trajectory be viewed as if uninterrupted by military duty. The regulations that implement the USERRA specifically state that “the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated.”

Employers should not generalize this holding to mean that any returning serviceperson can be laid off or fired without cause. To the contrary, Milco’s success in this case was based at least in part on the fact that the business difficulties being faced by that company during the relevant period, and its responses to those difficulties in the form of spending cuts and layoffs, were fully documented. That documentation allowed the jury to come to the conclusion that Milhauser’s position would have been eliminated whether or not he had been away from work on a period of military leave. Once the jury reached that conclusion, it simply viewed the situation in the light of the escalator principle, and determined the company’s action to be consistent with the USERRA.
 

The Family and Medical Leave Act (FMLA) continues to create administrative challenges for employers. One particular issue of concern is the discipline and or termination of an employee who has requested or is on FMLA leave. The 10th U.S. Circuit Court of Appeals recently upheld the dismissal of an individual’s interference and retaliation claims in an unpublished opinion that serves as an outline for analyzing FMLA claims under such circumstances. Brown v. ScriptPro, LLC, 10th Cir, No. 11-3293, November 27, 2012.

Frank Brown worked as a Customer Service Operations analyst for ScriptPro, a company which develops, manufactures, markets, and sells automated prescription drug dispensing systems and related software. Brown began that employment in March 2007. In mid-2008, Brown’s immediate supervisor prepared a written performance review which included both positive and negative comments. Among the negative feedback were observations related to Brown’s interaction with co-workers and customers, including his tendency to be “argumentative and abrasive,” and his lack of respect for “personal boundaries.” Although these issues were discussed with Brown, no specific goals or corrective plans were put in place. Following that performance review, several other issues developed, including complaints by Brown’s co-workers about his “belligerence” toward customers and his failure to complete a work project.

At the end of October in 2008, Brown was out of the office, ostensibly on Paid Time Off (PTO) for two weeks. However, upon his return, he asserted that he had worked from home during the second week, and on November 19, requested to use some of that work time to leave early on the following day to take his wife to a medical appointment. When Brown’s supervisor informed him that his request was denied, Brown raised his voice and allegedly banged his first on the table. He later apologized for his conduct.

On November 21, 2008, ScriptPro terminated Brown’s employment for performance issues. Brown filed a lawsuit claiming, among other things, that ScriptPro interfered with the exercise of his rights under the FMLA, and terminated his employment in retaliation for his exercise of those rights. The district court dismissed Brown’s claims, granting summary judgment to ScriptPro. The Tenth Circuit upheld that decision.

In its analysis of Brown’s interference claim, the Tenth Circuit makes a number of noteworthy points. First, it sets forth the elements of a successful interference claim, in which an employee must show that he was entitled to FMLA leave, that an adverse action taken by the employer interfered with right to take FMLA leave, and that the adverse action was related to the attempted exercise of those rights. Second, the Tenth Circuit reminds employers that the deprivation of FMLA rights is a violation of that law, regardless of the employer’s intent and that, therefore, the oft-cited McDonnell Douglas burden-shifting analysis does not apply. Third, the Court points out that in spite of the near strict-liability approach, an employer can defend against such a claim by showing that the employee would have been terminated regardless of the request or need for FMLA leave.

In Brown’s case, the Court decided that while Brown had provided sufficient evidence by which a reasonable jury could find that he was entitled to FMLA leave and that ScriptPro interfered with that leave, the company was able to assert undisputed evidence that Brown would have been fired regardless of the request for time off for his wife’s medical appointment. That undisputed evidence included unfavorable feedback in his performance review, and uncontroverted evidence of continued problems, including documented complaints by his co-workers and his supervisor’s concern related to an incomplete project. The Court noted that its role was not to “judge the wisdom of management’s responses,” but simply to determine whether ScriptPro had come forward with evidence to support the assertion that it would have fired Brown regardless of any FMLA activities. The Tenth Circuit affirmed the dismissal of the case, holding that ScriptPro carried that burden.

The Court analyzed the retaliation claim similarly, but pointing out that such claims are subject to the burden-shifting analysis of McDonnell Douglas. First, the employee must set forth a prima facie case of retaliation, showing that he engaged in a protected activity, was subject to a materially adverse action, and there is a “causal connection” between the two. Once the prima facie case is established, the employer must come forward with a legitimate, non-discriminatory reason for its action. Finally, in order to avoid summary judgment, the employee must show that there is a disputed issue of material fact as to whether the employer’s reason for its action is pretextual.

In Brown’s case, the Tenth Circuit proceeded directly to the third step of the analysis, and found that although Brown argues that the temporal proximity between his November 19 request for leave and his November 21 firing showed that ScriptPro’s reasons for the termination were actually based on protected activity, he failed to proffer any additional circumstantial evidence of retaliatory motive. Without that, Brown failed to carry his burden of proving that the legitimate reason given for his firing was simply a pretext for retaliation.

While the analysis of the two claims differed slightly, the employer’s success in each rested on the objective documentation of the performance issues on which Brown’s termination was based. That documentary evidence was the key to the success of ScriptPro’s ability to show that it would have terminated Brown regardless of any FMLA request or rights (the interference claim), as well as to the company’s ability to overcome Brown’s allegation that the reasons proffered for his termination were pretextual (the retaliation claim). This case serves as a reminder to employers of the importance of objective documentation of the business reasons for employer’s decisions, especially when faced with a possible FMLA-related situation.
 

Recent court decisions related to employees’ online postings have centered on whether disciplinary decisions regarding those postings may violate the National Labor Relations Act (NLRA). The NLRA protects certain employee “concerted activities” aimed at discussing or improving working conditions, and precludes interference with such communications, including online messages. However, individuals also have brought other legal causes of action against employers for so-called “Facebook firings.” Recently, a Texas appeals court was asked to determine whether the firing of an employee on the basis of her Facebook comment violated that employee’s state law privacy rights. The court held that it did not. Roberts v. CareFlite, Texas Court of Appeal 2d District, No. 02-12-00105-cv, Oct. 4, 2012.

Janis Roberts was a paramedic with CareFlite, a helicopter/ambulance service. Roberts posted on a fellow employee’s Facebook wall that she “wanted to slap” a patient who had needed restraints during a transport. When CareFlite compliance officer learned of the posting, she sent a message to Roberts – also through Facebook – reminding her that the public sees such postings, and asking her to “consider removing that post.” In response, Roberts curtly stated “Yeah, whatever,” and went on to state that sometimes “a patient needs an attitude adjustment.” Roberts ultimately removed the original posting, but before she did, the company’s CEO was made aware of it.

Roberts was terminated for her post, and for her “unprofessional and insubordinate” response to the compliance officer. She subsequently filed a lawsuit asserting that the company’s reaction use of and reaction to her personal and private Facebook message postings invaded her privacy under two state law claims: public disclosure of private facts, and intrusion upon seclusion.

After the lower court dismissed both of Roberts’ claims, she appealed the intrusion upon seclusion claim. However, in order to establish such a claim, Roberts would have to show an intentional intrusion on her privacy that was “highly offensive to a reasonable person.” Roberts argued that the rights of employees to privately discuss issues of patients who might affect employees’ safety outweighed issues of public concern (in this case, the public’s confidence in the ambulance company) and that, therefore, the employer’s intrusion into that discussion was a violation of privacy. In essence, Roberts attempted to assert the state-law equivalent of an NLRA Section 8 claim, which precludes companies from interfering in employees’ work-related safety discussions. However, because Roberts’ invasion of privacy claim was brought under state law tort theory, the court found that argument to be irrelevant, and dismissed the lawsuit for lack of legal support.

While this case was brought under Texas state law, the rationale is applicable to other circumstances, as well: courts will not read an “appropriate” cause of action into a lawsuit that fails to assert it. Whether or not Roberts’ allegations would have supported a cause of action for violation of the NLRA, her failure to specifically allege that claim, and her reliance on the state-law invasion of privacy claim, doomed her lawsuit. Obviously, employers should not become complaisant based upon this decision – employees’ rights to communicate about the terms and conditions of their employment remain protected under federal law.
 

To state a claim of interference under the Family and Medical Leave Act (FMLA), an employee must show that he or she has put the employer on notice that an absence may be covered by the FMLA. This ordinarily means that at least verbal notice must be provided to the employer within one or two business days of the point at which the need for leave becomes known to the employee. Recently, the 8th U.S. Circuit Court of Appeals reversed summary judgment in an employer’s favor, holding that an employee’s signs of severe distress and anxiety were sufficient to inform her employer of the possible need for medical leave. Clinkscale v. St. Therese of Hope, 8th Cir., No. 12-1223, November 13, 2012.

Ruby Clinkscale worked as a nurse at St. Therese of Hope long-term care facility in New Hope Minnesota in the facility’s rehabilitation (“rehab”) unit. Although staff members were to “float” among the different units of St. Therese, Clinkscale had received training only for the rehab unit and worked there from 2005 through October 11, 2010, when she was reassigned to the long-term care unit. When Clinkscale expressed concern to her supervisors about working in long-term care without unit-specific training, she was told that she had “no choice” and that she if didn’t do that work, it would be considered “patient abandonment” for which she could lose her license.

Clinkscale immediately went to St. Therese’s human resource office to express her concern to the HR Director, Rand Brugger. During the meeting, Clinkscale was crying and shaking so severely that she requested an ambulance for herself. In light of that distress, Brugger told Clinkscale to go home and that they would speak again on the following day.

Early the following morning, October 12, 2010, Clinkscale met with her doctor, who diagnosed a “situationally triggered” anxiety attack and prescribed therapy and medications. The doctor also provided a note recommending that Clinkscale take the remainder of the week off work. At 9:30 on that same morning, Clinkscale delivered that note to St. Therese’s HR department and in response, was provided FMLA forms which were to be completed by her doctor. However, later on that same day, Clinkscale was called at home and told that she had been terminated effective on October 11 for walking off the job. Ten days later, St. Therese registered a complaint regarding Clinkscale with the Minnesota Board of Nursing, alleging that Clinkscale had refused a work assignment and had “walked out” of her job.

Clinkscale filed a lawsuit alleging, among other things, an FMLA interference claim. The lower court granted summary judgment in favor of St. Therese, holding that Clinkscale was not entitled to FMLA leave because she already had been fired at the time of her request on October 12, and because she had been fired for reasons “wholly unrelated to the FMLA.”

On appeal, the Eighth Circuit reversed the summary judgment, holding that Clinkscale’s manifestations of extreme distress and anxiety after her reassignment on October 11 could reasonably be viewed as notification to the employer of a serious health condition. Further, Clinkscale left the premises on October 11 only after being instructed to do so by the HR Director. Further, when she returned on the following day with her doctor’s note, Clinkscale was provided with FMLA paperwork, a clear indication that St. Therese viewed her situation as a possible FMLA-related occurrence just prior to informing her of her termination.

An employer cannot avoid legal liability by firing someone who takes leave for a condition that ultimately may be diagnosed as a serious health condition requiring FMLA leave. When St. Therese told Clinkscale to go home to attend to her condition, provided FMLA paperwork to her, and then decided instead to fire her before she could submit completed paperwork, it created an issue of fact under which a jury could reasonably conclude that notice had been provided to St. Therese by Clinkscale as required under the FMLA, and that St. Therese interfered with Clinkscale’s possible leave.

It is important to note that the Eighth Circuit did not find that St. Therese was in violation of the FMLA. It simply found that based upon the facts as asserted by Clinkscale, a jury would have to determine whether notice of a serious health condition was provided by Clinkscale to St. Therese “as soon as practicable” as required by the FMLA, and whether St. Therese interfered with Clinkscale’s possible FMLA leave when it terminated her for leaving work on October 11, 2010.