By: Ogletree Deakins

Must your company file an EEO-1 report on an annual basis?  If your company has facilities in different geographical areas, how are these reported on the EEO-1?  How are you collecting gender and ethnicity/race information from your employees for this report, and is that protocol consistent with the parameters set by the Department of Labor (DOL)?  Do you know that September 30 is the filing deadline established by the government for filing yearly EEO-1s?

The EEO-1 report is a compliance survey report that is mandated by federal statute and regulations and requires company employment data to be categorized by race/ethnicity, gender and job categories. The federal government has collected annual EEO-1 reports from private employers since 1966.  All employers with 100 or more employees and government contractors with 50+ employees and at least one federal contract or subcontract of $50,000+ must file this report, generally in September of each year.  The report collects data about gender and race/ethnicity by job groupings, and the reports are shared with other federal agencies.

Why are employers required to deal with this maze of data every year? The reasons are many and include the fact that the Equal Employment Opportunity Commission (EEOC) often reviews EEO-1 reports when investigating a charge of discrimination. In addition, the Office of Federal Contract Compliance Programs (OFCCP) relies, in part, on EEO-1 data to determine which federal contractors will be subject to a compliance evaluation (audit).  Even plaintiffs’ attorneys and your competitors often find EEO-1 data relevant, and arguments about disclosure of such information to outside parties are not uncommon.

Simply put, EEO-1 reports are an important enforcement tool for the federal regulators, and may be relied upon by private parties to support or defend against discrimination claims.

Make sure you have the information you need before you file your 2012 EEO-1 report! Learn what information to collect, and how that information is interpreted by the government by attending Ogletree Deakins’ August 28 webinar, “Best Practices for Preparing EEO-1 Reports and VETS-100A Forms.”  The webinar will be led by Leigh Nason, a shareholder in the firm’s Columbia, South Carolina office, who chairs the firm’s Affirmative Action/OFCCO Compliance Practice Group and is nationally recognized for her work in representing contractors and subcontractors in compliance evaluations and administrative enforcement actions triggered by the DOL’s OFCCP.  Leigh will provide information, answer questions, and help you to navigate the maze of OFCCP regulations and requirements in this increasingly-complicated arena. Register on the firm’s site at www.ogletreedeakins.com.
 

In order to be granted a leave of absence under the Family and Medical Leave Act (FMLA), an employee first must fulfill certain eligibility requirements, including having worked for the employer for at least 12 months, and having worked for at least 1250 hours within the prior calendar year. Individuals who do not reach those initial thresholds typically do not qualify for FMLA leave. However, on July 17, 2012, the U.S. District Court for the Eastern District of Pennsylvania denied a motion to dismiss the claim of a county nursing assistant who was fired because she took FMLA leave to care for her son, finding that the employer was estopped from arguing that the FMLA discrimination claim should be dismissed based on ineligibility under the leave law, because county officials had led the plaintiff to believe that she was qualified to take such leave. Medley v. Montgomery County, EDPA, No. 2:12-cv-01995, July 17, 2012.

Amy Medley was employed by Montgomery County, Pennsylvania, as a nursing assistant. Medley’s son has serious health conditions, including Asperger’s Syndrome, developmental delay, and anxiety disorder. Although she had worked for less than 1250 hours during the prior 12 month period, Medley requested and was granted intermittent leave to care for her son. County officials told Medley that she qualified for FMLA leave, and asked her to fill out various County FMLA forms. She also was provided with documents that stated that she was eligible for “family care” leave after three continuous months of employment.

However, as Medley began to take intermittent leave, she was written up for her absences. When she raised the issue with a County “H.R. Official” on April 19, 2011, she was dissuaded from filing a grievance and was told not to worry, because “nothing was going to be done to her.” The next day, Medley’s employment was terminated, and she was told she was fired because of leave she exercised on April 17, 2011, once of the absences that Medley believed was covered by her “FMLA” leave.

Medley filed a lawsuit in federal court, including claims of interference with her FMLA rights and of retaliation under that Act. The County filed a Motion to Dismiss the complaint, arguing that Medley’s claims should be dismissed because it was undisputed that Medley did not satisfy this basic prerequisite for an FMLA claim. In response, Medley argued that because she was told that she was eligible for FMLA leave, the doctrine of equitable estoppel should now preclude the County from asserting that her FMLA claims fail because she was not eligible.

Upon review, the district court determined that Medley’s claim of interference with her FMLA rights failed, simply because Medley possessed no actual FMLA right with which the County could have interfered. However, in order to support her claim of retaliation, Medley simply had to show that she was treated adversely because she took FMLA leave. In reviewing that claim, the court determined that actual entitlement to FMLA leave was not an essential element of the claim. Instead, the court quoted a decision by the 5th U.S. Circuit Court of Appeals which held that “[A]n employer who without intent to deceive makes a definite but erroneous representation to his employee that she is . . . entitled to leave under the FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage” if the employee reasonably relied on the misrepresentation to her detriment. While the district court refused to allow Medley’s interference claim, it allowed her retaliation claim to go forward under that analysis.

Although the difference between the district court’s analysis of Medley’s interference claim and its analysis of her retaliation claim is subtle, it is worth understanding. While the court refused to retroactively endow Medley with actual FMLA rights because of her employer’s misinformation about her eligibility, it also refused to allow that employer to take advantage of the mistake by firing Medley for what she believed to be FMLA-related absences.

Although this decision could be appealed to the Third Circuit, the district court’s message is clear: once an employer grants FMLA leave to an individual, even if that allowance is based upon a miscalculation of eligibility requirements, the employer cannot then take adverse action based upon an absence associated with the faux FMLA leave. To do so may create liability for under the FMLA for a claim of retaliation.
 

The Family and Medical Leave Act (FMLA) provides unpaid leave time to eligible employees under specific circumstances, including the serious health condition of the employee. It is a violation of the FMLA for an employer to interfere with an employee’s use or attempted use of FMLA leave time. The 7th U.S. Circuit Court of Appeals has held that an employee who did not receive actual medical treatment during a specific absence could not support an FMLA interference claim for his termination. Jones v. C&D Technologies, Inc., 7th Cir, No. 11-3400, June 28, 2012.

Robert Jones began working for C&D Technologies in 2000 as a machine operator in the company’s Attica, Indiana plant. During the course of his employment, Jones experienced periodic leg and back pain, as well as bouts of anxiety, for which he requested intermittent FMLA leave.

C&D implemented an attendance policy that assigned “points” to absences. For instance, an employee who missed more than four hours of a scheduled shift was assigned one point, while absences lasting less then four hours were assessed one-half a point. Employees also were required to report an absence no later than 30 minutes prior to a shift-start, or an additional one-half point would be added. Points were not assessed for pre-approved FMLA absences. Any employee accumulating one point within a four month period was given a written warning; a second written warning was given to anyone accruing two points in that period; and a third point within that period resulted in termination.

In September 2009, C&D was aware that Jones required periodic treatment for his leg pain and for anxiety. On September 30, Jones spoke to C&D’s FMLA coordinator to request FMLA leave for a 1:00 p.m. appointment at a clinic in Crawfordville, Indiana set for the following day. The coordinator reminded Jones to inform his supervisor of the absence. At that point, Jones already had accumulated 2½ absence points within the prior four months.

On October 1, Jones missed his entire shift. At approximately 10 a.m. on that date, he made an unscheduled visit to his local doctor’s office to confirm that his file had been transferred to the Crawfordsville clinic, and to pick up a prescription refill note. He then drove to Crawfordsville for his 1:00 appointment at the clinic. Whether or not Jones reported his absence to his supervisor is a matter of dispute.

Because of Jones’ October 1 absence, C&D suspended him, pending an investigation, and determined that Jones could have been assessed 1½ points: one point for a full day of absence, and ½ point for failing to report the absence. However, because Jones had a pre-arranged medical appointment on the afternoon of October 1, and because Jones reported leaving a voicemail for his supervisor, he was assessed only ½ point for his absence during the morning of October 1. That one-half point took his total points to three, leading to his discharge.

Jones filed a lawsuit, arguing that his absence on the morning of October 1 was for “treatment” for his serious health condition, because it involved obtaining a prescription for medication. The lower court determined that Jones’ morning errands on October 1 did not constitute treatment as a matter of law, and awarded summary judgment to C&D. Jones appealed that decision.

The Seventh Circuit upheld the dismissal. It pointed out that the FMLA entitles an employee to leave if the employee suffers from a serious health condition that “makes the employee unable to perform the functions of [his] position.” The DOL regulations define an employee unable to perform his duties as one “who must be absent from work to receive medical treatment for a serious health condition.” The word “must” implies that the employee’s absence is necessary for the treatment. Alternatively, an absence for unnecessary treatment, or for no treatment at all, means that the employee is not “unable to perform” the functions of his position. Therefore, Jones’ situation revolved around the definition of “treatment.”

According to the Seventh Circuit, while the DOL’s definition of “treatment” includes the phrase “a course of prescription medication,” the FMLA requires something more than that to become entitled to leave – the actual inability to perform job functions. Jones’ absence was not based upon his inability to do his job. Instead, on the morning of October 1, he made an unscheduled visit to his doctor to check on medical records and to ask for a prescription refill. His doctor did not examine him, or treat him, and spoke only briefly to him. There was no “treatment” provided and, therefore, no FMLA-qualifying leave.

Employers should recognize that this case cannot be interpreted to exclude every medical visit from FMLA leave when one reason for the visit was obtaining prescription medication. Instead, the entire purpose of the visit to the physician must be assessed, and viewed in the light of the employee’s FMLA-qualifying medical condition. If, in fact, actual “treatment” is being provided, the absence is likely to be deemed FMLA leave.
 

The Family and Medical Leave Act (FMLA) entitles eligible employees to twelve weeks of unpaid leave each year for certain medical issues for themselves or immediate family members. Employers are prohibited from discriminating or retaliating against an employee who exercises FMLA rights.

Employers and employees alike often are stymied by the administrative complexity of the FMLA process, including both application for and implementation of its leave provisions. In an attempt to clarify the processes associated with the FMLA, the Department of Labor (DOL) has issued a 20-page summary entitled “Need Time? The Employee’s Guide to the Family and Medical Leave Act.” While the booklet is directed primarily to employees, with flowcharts and Q-and-A sections with titles like: “What Can the FMLA do for Me?” and “How Do I Request FMLA Leave?” it also provides to employers a roadmap of the process that the DOL is likely to use when a case comes before it that includes a claim of FMLA interference or retaliation.

For instance, the booklet begins with the question, “Am I Eligible for FMLA Leave?” and a flowchart that walks through clearly worded questions, each requiring a simple yes-or-no response, to allow an individual to understand the requirements for eligibility for FMLA leave. It then defines the “serious health conditions” for which an employee may request FMLA leave. Unfortunately, in its attempt to make the booklet as succinct as possible, the DOL has left out some of the nuances that courts have woven into their interpretation of the FMLA.  For instance, the wording of the “serious health condition” section may cause confusion on the issue of whether any three-day absence is sufficient to support a request for leave, and whether that particular absence must include a visit to a medical provider, in order to qualify as “serious.”  However, generally, the DOL has summarized the FMLA’s provisions in an understandable, user-friendly manner.

The section entitled “The FMLA Leave Process” is especially valuable to employers, because it is a step-by-step guide that includes both the employer’s obligations and the employee’s responsibilities for successfully navigating the FMLA leave application process, and reminds employers of the time limits for responding to an employee’s request or certification information.  In addition, the DOL’s explanation of the required Medical Certification may actually benefit employers, who often fail to provide specifics in their certification request, and may then have to follow up when an employee or a medical provider has questions about what kind of information is sufficient to support a request for leave.

While employees and employers both often shy away from governmental publications, assuming perhaps that the language will be convoluted or the information will simply be a self-serving summary of a particular law or regulation, this booklet does not fall into either category, and is worth reviewing.  For employees, the publication provides a clear and concise summary of the FMLA’s provisions; for employers it explains exactly what the DOL believes the process to be, and how employers should be implementing it.

One of the issues most frequently litigated in employment cases is whether the remarks and actions of an employer rise to the level of the “hostile work environment” needed to support a claim of discrimination. The 10th U.S. Circuit Court of Appeals recently addressed that issue, and provided at least some clarity to the definition, adding its voice to the courts that have held that racial epithets directed at employees other than the plaintiff, and non-racial adverse actions directed at that plaintiff, both can be considered as elements of a hostile work environment if other evidence of racial animus is present. Hernandez v. Valley View Hosp. Assn., 10th Cir., No. 11-1244, June 26, 2012.

Teresa Hernandez, a Latina of Mexican heritage, was hired by Valley View Hospital Association in 2001, and began working in the food service department at that time. Beginning in 2004 and 2005, Hernandez was supervised Marc Lillas and Nicholas Stillahn, a duo of supervisors whose actions form the basis of Hernandez’s federal court complaint.

Hernandez alleges that during a fourteen month period of her employment, beginning in 2006, she was the target of a number of remarks by her supervisors based on her heritage, and that she had experienced certain incidents of non-racial derogation. Hernandez frequently complained directly to Lillas and Stillahn that she felt that the remarks were racist and demeaning. On July 20, 2007, Stillahn angrily yelled at Hernandez about the status of the cafeteria, then shoved a food cart and kicked a door in response a statement by Hernandez’s that “maybe I’m not white enough” for Stillahn. Hernandez was then suspended for that remark, and asked to be reassigned from the food service area. Her request for reassignment was denied, but Valley View’s Director of Human Resources, Daniel Biggs, offered to allow Hernandez to take FMLA leave until October 15, 2007, which Hernandez accepted. On October 12, Biggs met with Hernandez to discuss with her certain performance concerns by her supervisors that had not previously been “formally documented.” Hernandez again asked for a transfer from food services, and Biggs again denied the request. When Hernandez failed to return from her FMLA leave, her employment was terminated.

After exhausting her administrative remedies, Hernandez filed a complaint in federal court, which included racial and national origin discrimination claims based upon a hostile work environment, and a claim for constructive discharge. Valley View’s motion for summary judgment was granted by the lower court, and Hernandez appealed to the Tenth Circuit. The appellate court reversed the lower court’s decision, reinstating Hernandez’s hostile work environment and constructive discharge claims.

The lower court characterized Hernandez’s evidence as “a handful of racially insensitive jokes and comments over a period of more than three years.” However, the Tenth Circuit, while recognizing that “Title VII does not establish a general civility code for the workplace,” and that “boorish, juvenile, or annoying behavior” is insufficient to support a claim of hostile environment, found that there is not a “mathematically precise test” for a hostile work environment claim and that the term “pervasive” is not a “counting measure” that can be viewed in a vacuum. It found, instead, that Hernandez experienced more than a “handful” of “sporadic” racially derogatory jokes and comments, and that Hernandez was able to articulate at least twelve instances of racial remarks by her supervisors within a 14 month period within which Hernandez also had suffered behavior and remarks that, while arguable non-racial, had subjectively offended her to the point where she formally complained about that behavior.

The Tenth Circuit held that, viewing the records as a whole and in a “broader contextual analysis,” a reasonable jury could find that the workplace was “permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of her employment,” and reversed the lower court’s decision, sending the case forward to be heard by a jury.

While the Tenth Circuit’s opinion arguably is limited to court decisions within a particular geographic area (the Tenth Circuit encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), the rationale articulated by the Court in this case provides broader guidance to all employers. First, every supervisor must be trained to respond to complaints regarding discrimination, whether or not the supervisor agrees with the employee’s characterization of the behavior as illegal or inappropriate. To ignore such reports risks legal liability for harassment, hostile environment, or — when the employee ultimately is fired — constructive discharge. In addition, employers cannot assume that because the incidents allegedly suffered by an employee are few, that a court necessarily will agree with the employer’s characterization of those incidents as “sporadic” or not pervasive enough to support a Title VII cause of action. Lastly, simply because discriminatory remarks are not directed at a complainant, or because the behavior directed toward a complainant arguably is not based upon a protected characteristic, an employer cannot assume that such remarks or behavior will not become part of the complainant’s lawsuit. Here, because other evidence of racial animus existed, the Court viewed epithets directed at others, and incidents of “non-racial’ abusive behavior toward Hernandez as supportive of Hernandez’s claims of hostile work environment.
 

Discipline imposed pursuant to a company policy that restricts employees from any discussions of their wage rates may implicate Section 7 of the National Labor Relations Act (NLRA). Section 7 protects the right of employees to engage in “concerted activities” with each other for the purpose of collective bargaining or in efforts to improve working conditions and terms of employment. On June 7, 2012, the National Labor Relations Board (NLRB) issued an opinion in which it affirmed an Administrative Law Judge’s decision that an employer violated the NLRA when it fired an employee for disclosing wage rates in violation of a company rule. Taylor Made Transportation Services, Inc, Case No.05-CA-036646 (June 7, 2012).

Section 7 of the NLRA specifically encompasses the right of employees to ascertain what wages are paid by the employer; in fact, wage discussion often are considered to be at the core of Section 7. Kimberly Tutt was suspended and then fired for disclosing her wage rate to her fellow employees. Tutt and her co-workers worked for Taylor Made Transportation Services, Inc., which provided passenger transportation services to the U.S. Government under a contract with the Social Security Administration. Taylor Made had a handbook policy that required employees to maintain confidentiality of certain company information, specifically including “Compensation data.” Further, the handbook stated that “All employee pay rates are confidential and should not be disclosed verbally, written or electronically posted for deliberate expose [sic] of rates without a valid reason.”

During her brief (six week) employment with Taylor Made, Tutt was spoken to on multiple occasions regarding her lack of professional behavior, both with passengers and co-workers. In addition, Tutt was informed by the company’s human resources director that it had been brought to the company’s attention that employees were upset because Tutt had disclosed her rate of pay, which was higher than some of her co-workers. Tutt was then informed that she was being suspended for five days, and that management would decide whether to continue her employment. At the conclusion of her suspension, Tutt was discharged. Tutt testified that she was told by human resources that her termination was due to discussing with and disclosing confidential pay rates to fellow employees. Although Taylor Made stated to the NLRB, in response to Tutt’s NLRB complaint, that the firing was based on “inappropriate cell phone usage” and “lack of professional behavior,” the company’s human resource director previously had reported to a unemployment compensation claims examiner that the reason for termination was Tutt’s “failure to follow policy in disclosing her wages.”

The Administrative Law Judge found that Taylor Made had violated the NLRA by promulgating a policy that explicitly prohibits employees from discussing compensation, because such a rule is “unlawful on its face.” That determination subsequently was upheld by a three-member panel of the NLRB, which agreed that the company had imposed discipline against Tutt pursuant to an “unlawfully overbroad rule” and therefore, had violated the NLRA.

While the ALJ’s analysis and opinion is worth reading, the issue of which employers should be aware is the range of penalties imposed against Taylor Made for its violation of the NLRA. Those penalties included reinstatement of Tutt to her former position; payment of lost earnings and benefits to Tutt; removal of information related to the discipline and termination against Tutt from her personnel file; rescission of the handbook policies and provisions that precluded employees from discussing pay rates; and the posting of a Notice, drafted by the NLRB, for 60 consecutive days “in conspicuous places” throughout Taylor Made’s facility.

The Notice, which is attached to the NLRB’s opinion, includes information regarding the NLRA, and begins by informing employees, in capital letters, that: “FEDERAL LAW GIVES YOU THE RIGHT TO: Form, join, or assist a union . . . ,” going on to list the rights of employees under the NLRA, and to enumerate the things that Taylor Made was prohibited from doing under that Act. The Notice also includes details about Tutt’s circumstances, her reinstatement, and the payment of her back wages and benefits.

Company handbooks and policies cannot preclude employees from discussing the terms and conditions of their employment, unless such discussions actually interfere with the employee’s own work or otherwise actually interfere with the operation of the business, and that act of interference – and not the violation of the rule – was the actual reason for termination. In this case, the employer did not assert that affirmative defense, and ultimately was found to have violated the provisions of the NLRA, making itself subject to the penalties available to be imposed under that Act.
 

Section 7 of the National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities” with each other for the purpose of collective bargaining or in efforts to improve working conditions and terms of employment. These concerted activities can be done in person, or by other methods of communication, including electronic media. Employers who terminate an employee based upon a social media posting that ultimately is determined to have been “protected concerted activity” may be violating Section 7 of the NLRA. An employer’s discipline or termination of an employee, if found to violate the NLRA, can lead to legal liability that may result in financial damages and reinstatement of the employee. That fact has created interest, consternation, and varying levels of panic among employers who are trying to balance the rights of employees to protected concerted activity with a company’s right to expect compliance with its policies and with attempts to protect confidential information.

In August 2011 and January 2012, the Acting General Counsel of the National Labor Relations Board (NLRB) issued reports that both dealt with cases arising in the context of employee communications via social media. Those reports provided to employers a glimpse into the NLRB’s rationale for dealing with cases in which employees claim that an employer’s disciplinary action based on a social media posting violated Section 7 of the NLRA. But those reports did little to stem employers’ concerns related to the delicate balance between employees’ rights to open communication with each other, and implementation and enforcement of company policies related to communications via social media.

On May 30, 2012, the NLRB issued its third report. This one was dedicated primarily to social media policies. The report summarized seven different policies, pointing out provisions in the first six which may be in violation of Section 7 of the NLRA, but holding up the seventh policy – newly revised by a national retail chain — as “lawful.”

Some of the examples of “unlawful” language in the first six policies may cause some concern among employers. For instance, one company’s policy stating that employees who were in doubt as to whether a posting might violate the policy should “check with [Employer] Communications or [Employer] Legal to see if it’s a good idea . . . .” was deemed a violation of law because a “rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities” automatically violates the NLRA. A company’s policy that required employees to assure that “posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site” was deemed to be unlawfully overbroad and, according to the NLRB, could “reasonably be interpreted to apply to discussions about, or criticism of the Employer’s labor policies and its treatment of employees that would be protected by the [NLRA]. . . .” Of real concern is the NLRB’s evaluation of this company policy: “Offensive, demeaning abusive or inappropriate remarks are as out of place online as they are offline.” According to the Board, that statement is in violation of Section 7 because it “proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”

Employers should disabuse themselves of the notion that a “savings clause” (for example, “This policy will be administered in compliance with applicable laws and regulation, including Section 7 of the NLRA.”) will satisfy the NLRB from finding its policy to be unlawful. Such a provision, according to the May 30 report, “does not cure the ambiguities in [a] policy’s overbroad rules.”

What can an employer do to meet the standards set forth by the NLRB in this latest report? Luckily, the Board provided a roadmap in the form of an “acceptable” policy. According to the Board, the key to that policy’s lawfulness is that the policy “provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rule to prohibit Section 7 activity.” While a number of the policy’s provisions are as broad as those found by the NLRB to be in violation of Section 7 in other policies, the concrete examples of what does and does not violate the policy seems to have satisfied the concerns that the Board expressed regarding the six earlier examples.

While some employers may assume that the easiest way to assure full compliance with Section 7 is simply to use the exemplar policy in its totality, those employers should understand that company policies typically are not one-size-fits-all. A more practical solution would be to review the exemplar policy carefully, and then tailor its core concepts to fit the values and existing needs of the specific employer. It also is important to continue to pay attention to the development of case law in this area, to assure an understanding of how the courts will interpret this latest NLRB report.
 

Most employers understand that Title VII of the Civil Rights Act precludes a discriminatory “hostile work environment,” in which acts of discrimination against an employee are so severe and pervasive that those acts have an adverse impact on the employee’s ability to do his or her job. What is less fully understood is the fact that an employee also can bring an action under Title VII based upon severe and pervasive retaliatory acts that follow a “protected action” taken by the employee. The 11th U.S. Circuit Court of Appeals — the last appellate circuit to formally recognize such a cause of action — recently joined its sister circuits, recognizing a retaliatory hostile environment claim brought by two physicians who had filed EEOC claims against the VA hospital and medical center by which they were employed. Gowski, et al v. Peake, et al, 11th Cir., No. 09-16371, June 4, 2012.

Doctors Diane Gowski and Sally Zachariah were employed at Bay Pines Veteran’s Affairs (VA) hospital and medical center in Florida. In August 2007, Gowski and Zachariah, along with two other individuals, filed a complaint in federal court against the Secretary of the Department of Veteran’s Affairs, alleging that the hospital’s administration retaliated against them after they each had filed internal complaints of discrimination in 2005 and 2006. At trial, the doctors alleged that the managers and administrators at Bay Pines made a “concerted effort” to retaliate against employees who “opposed their discriminatory or retaliatory actions.” To support that claim, the doctors provided evidence that administrators targeted such individuals by spreading rumors about them, soliciting adverse reports about them from other employees, and warning others that the VA “would not settle frivolous complaints and lawyers would not run the hospital.”

The list of alleged adverse actions against Gowski and Zachariah was extensive, including loss/limitation of practice privileges, misleading/mistaken reports of disciplinary action in personnel files, unwarranted verbal counseling, decrease in salary, and removal from committee positions. The case proceeded to trial, after which the Secretary moved for judgment as a matter of law. That motion was denied, and the jury determined that Gowski and Zachariah had experienced a retaliatory hostile work environment, awarding to Gowski $250,000 in emotional damages and $16,000 in lost wages, and to Zachariah, $1,000,000 in emotional distress and $90,000 in list wages. The Secretary filed post-trial motions including an argument that discrete acts of retaliation could not form the basis of a claim for retaliatory hostile work environment. The trial court denied that motion, and an appeal to the Eleventh Circuit followed.

Upon review, the Eleven Circuit for the first time recognized a cause of action for retaliatory hostile work environment. It based that determination on the language of Title VII, and the EEOC’s own interpretation of the statute. Further, it found that prohibition of a retaliatory hostile environment is consistent with Title VII’s remedial goal of preventing supervisors from deterring protected conduct. (During trial of the matter, there was testimony that certain doctors left the hospital rather than report discrimination and then continue to work in fear of retaliation.)

Employers generally understand that discrete acts cannot, by themselves, cannot form the basis of a claim of discriminatory hostile work environment. Therefore, an employee’s termination, her denial of transfer, or a refusal to hire does not typically support such a claim. Instead, such claims are based upon acts whose very nature involves repeated conduct: intimidation, ridicule, or repeated insult. The Eleventh Circuit analyzed the claims made by Gowski and Zachariah under that same framework, and found that repeated acts of intimidation and ridicule that followed the doctors’ protected claims of discrimination in 2005 and 2006, and that were severe and pervasive enough to alter the doctors’ working conditions, could support claims of "retaliatory hostile work environment."

The message in this case is not a new one, but is important nonetheless. Individuals who take actions protected by Title VII, specifically including an internal report of workplace discrimination, cannot be retaliated against for that report. In addition, subjecting such an employee to a “thousand small cuts” in the hope that he or she will decide to leave employment can lead to liability for a retaliatory hostile work environment.
 

“Direct evidence” is evidence that, if believed, leads to the conclusion that discrimination was at least one motivating factor in an adverse employment action. An employer’s termination letter, stating that the employee was being terminated due to her inability to do her job during a medical leave, was “direct evidence” of discrimination sufficient to support summary judgment in her favor and against her employer. Coffman v. Robt. J. Young Co, Inc., No 3:10-cv-001052, MDTN, May 14, 2012.

Catherine Coffman began working for Robert J. Young Company (RJYC) in 1994. From 1999 until 2009, she worked as a copy center operator, making copies, printing and scanning documents, assisting and conducting machine repair, and providing customer service. On April 25, 2009, Coffman was in a non-work-related motorcycle accident, in which she was severely injured. Based upon her injuries, Coffman received 12 weeks of FMLA leave, during which she remained in communication with her employer, providing regular medical updates. At the conclusion of her leave, Coffman informed RJYC that she still could only use one hand/arm, in response to which she was told that she could return in a sedentary job with equivalent pay. Coffman refused that position, and took disability leave during which she unwent physical therapy and continued treatment to improve her condition. On October 28, 2009, she then was released by her doctor to return to work on November 23 with a 10-pound lifting restriction, and limitations on pushing, pulling, and overhead lifting,

Although Coffman felt that she could have performed her job duties at that time with minimal accommodation, RJYC’s human resource (HR) director and the company’s general counsel decided to fire her at that point, and did so without first engaging in the required interactive process required under the Americans with Disabilities Act (ADA), and without obtaining any additional medical information regarding Coffman’s condition or limitations. Instead, on November 10, 2009, Coffman received a letter stating that “given [that] you are unable to perform the tasks of your job, we have found it necessary to hire someone to fill the vacancy created by your need to take long-term disability.” The letter further stated that “[d]ue to your long term disability we must terminate your employment.”

Coffman filed a lawsuit against the company, alleging that she was fired in violation of the ADA. At the close of discovery, the company filed a motion for summary judgment, arguing that Coffman was not disabled and, therefore, there could be no ADA violation. Coffman filed a cross-motion for summary judgment, alleging that the company fired her because it “regarded” her as disabled, which also is a violation of the ADA. Coffman pointed to her termination letter as “direct evidence” of the company’s unlawful conduct. She also cited the HR director’s deposition testimony that the employee was terminated based on the company’s assumption that she could not (or would not) come to work, as well as the deposition testimony of the company’s general counsel that “you can either work or you’re receiving long-term disability benefits which say I can’t work, I need long-term disability benefits.” Based upon this testimony and evidence, a reasonable jury could find that the decision to fire Coffman was motivated, at least in part, by her disability or perceived disability. The district court therefore denied the company’s motion for summary judgment, and granted Coffman’s partial motion for summary judgment on her ADA claim.

In this case, the court granted the employee’s motion, which means that the court determined that there was no real question that the company’s decision to terminate Coffman was based, at least in part, on her actual/perceived disability. While the company pointed out a number of factors that it believed supported its own arguments, the reality is that its own poor word choice in the termination letter led to the company’s failure to have the case dismissed as a matter of law at the summary judgment stage, and to a determination that could lead to legal liability in this case. Because this decision was made by a Tennessee district court, it can be appealed to the 6th U.S. Circuit Court of Appeals. However, the case sends a clear message to employers to assure that terminations are based upon non-discriminatory business-related objectives, and that written notification of employment status clearly reflects those legitimate business reasons.
 

Employment termination during an employee’s leave under the Family and Medical Leave Act (FMLA) may constitute “interference” with that leave. However, an employer typically does not violate the FMLA if it terminates an employee for failing to comply with the company’s policies regarding absences, even if those absences occur during a protected FMLA leave. A recent decision by the 3d U.S. Circuit Court of Appeals reminds us that the FMLA is not a law that can remedy an employee’s failure to follow a company’s sick leave policies. Pellegrino v. Communications Workers of America, AFL-CIO, CLC, 3d Cir., No.11-2639, April 19, 2012.

Denise Pellegrino began her employment with the Communications Workers of America (CWA) in 2005. In 2006, the CWA revised its Sickness & Absenteeism Policy to require employees on paid sick leave to “remain in the immediate vicinity of their home during the period of such a leave,” unless permission was obtained in writing prior to such travel. Under the 2006 CWA policies, FMLA leave ran concurrently with any available paid sick leave.

In August 2008, Pellegrino requested FMLA leave for surgery. Paperwork was provided to Pellegrino, informing her of her rights and obligations under the FMLA. She also was provided with two separate medical certification forms – one for FMLA and the other for paid sick leave – and was notified that she was “required to substitute paid leave under CWA’s sick leave policies” for the period of time during which she qualified for sick leave benefits. Pellegrino submitted both certificates, and was granted four weeks of FMLA leave, which was to run concurrently with four weeks of available paid sick leave. Pellegrino began her leave on October 2, 2008, the date of her surgery; she received full pay and benefits under the CWA sick leave policy.

About two weeks after the surgery, and without prior notice to CWA, Pellegrino traveled to Cancun, Mexico with three other individuals, and spent a week there. When she returned, Pellegrino was asked to meet with the administrative director of her CWA office, who asked about the trip. After Pellegrino admitted to having taken the trip, her employment was terminated, based upon violation of CWA’s sick leave policy.

Pellegrino sued CWA in January 2010, alleging interference with her rights under the FMLA. The district court found that because Pellegrino had been on both FMLA leave and paid sick leave, a combination allowed by law, she remained bound by CWA’s sick leave policy. Because that sick leave policy was not inconsistent with the FMLA, CWA did not interfere with Pellegrino’s FMLA rights. On appeal, the Third Circuit agreed with that rationale. Although Pellegrino protected that she had not received sufficient notice of her obligation under the sick leave policy, the CWA submitted evidence that it had: (1) provided a DOL-approved form to Pellegrino regarding FMLA; and (2) e-mailed the sick leave policy to Pellegrino in the past. While it took the opportunity to call Pellegrino’s termination “harsh,” and even viewing the facts in the light most favorable to Pellegrino, the Third Circuit agreed with the district court that CWA did not interfere with Pellegrino’s rights under the FMLA.

The message to employers is clear: if a written sick and absence policy is disseminated to employees, and if that dissemination is fully documented, employers have a legitimate expectation that discipline imposed for violation of that policy will be upheld, even if the absences were taken pursuant to leave under the FMLA, so long as the absence policy is not inconsistent with the terms and purpose of the FMLA.