By: Ogletree Deakins

In November 2010, the National Labor Relations Board (NLRB) announced its plans to prosecute a complaint issued by a Connecticut regional office regarding the termination of a union member/employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint alleged that the employer, an ambulance service, maintained and enforced overly broad and restrictive policies regarding blogging and Internet postings outside of work.

The incident on which the NLRB’s complaint was based began when an employee posted a negative comment about her supervisor on her own Facebook page, using her own home computer to do so. The comment elicited supportive responses from co-workers, and led to further negative comments from the employee herself. When the company learned of the comments, it fired the employee, stating that the postings violated the company’s internet policies. The NLRB investigated the situation, ultimately determining that the Facebook postings were “concerted activity,” protected by federal law. Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms and conditions of their workplace and employment, and the NLRB argued that restricting an employee’s personal use of Facebook and the Internet to communicate with co-workers outside of work was a violation of Section 7.

On February 7, 2011, the NLRB announced that a settlement between the employer and the NLRB had been approved. The terms of that resolution include a revision of the company’s policies to ensure that they do not improperly restrict the rights of employees to discuss wages, hours, and other working conditions. The company also has agreed that it will not discipline or fire employees for engaging in such activity in the future. It should be noted that the company’s position throughout this matter has been that the individual who authored the Facebook postings was fired “based on multiple, serious complaints about her behavior,” and not simply because of the postings. The settlement of this matter includes a separate, private settlement between the company and the individual employee, the terms of which have not been made public.

Both union and non-union employers should recognize that the NLRB’s allegation regarding the company’s internet policy is one that could be brought against any employer on the basis of a written policy, even in the absence of a specific factual instance of violation of such policy. Under the NLRA, employees have the right to engage in protected concerted activity, which can include discussions, meetings, or even a single employee who is discussing the personal character of a particular supervisor.

While this case was resolved without a public hearing and, it is presumed, to the mutual satisfaction of the parties, employers who implement restrictive policies related to employee interaction and communication risk the high-profile, expensive, and disruptive circumstance in which this company found itself. Therefore, companies should take care to draft employment policies that do not impinge upon employees’ rights to act in concert and do not keep employees from acting to effect positive change in the terms and conditions of the workplace.
 

The Worker Adjustment and Retraining Notification (WARN) Act states that an employer cannot order a plant closing or mass layoff that will affect 50 or more employees without a 60-day written notice to each affected employee. An “affected employee” is someone who is expected to experience an employment loss as a result of the closure or layoff. For purposes of the WARN Act, an employment loss is “an employment termination, other than a discharge for cause, voluntary departure, or retirement. . . .” The 9th U.S. Circuit Court of Appeals has held that a group of employees who stopped reporting to work after the owner of the automobile franchise for whom they worked informed them that he would be “closing its doors” in two weeks did not fall within the “voluntary departure” exception to the WARN Act and, therefore, were not provided with the requisite 60-day notice of business closure. Collins v. Gee West Seattle LLC, 9th Cir., No. 09-36110, January 21, 2011.
Prior to September 26, 2007, Gee West Seattle LLC employed approximately 150 employees at its franchise locations. On that date, Gee West informed its employees, in a written memo, that it was actively pursuing sale of the business, but that it would be closing its doors on October 7, 2007. The memo also stated that if Gee West had not found a buyer by October 7, it would be terminating all of its employees other than Accounting and Business Office personnel. Following that memo, employees began to stop reporting to work. By October 5, only 30 Gee West employees reported to work. Because the business could not operate with that few employees, Gee West ceased doing business on that date.
In February 2008, Gee West’s employees filed a lawsuit in federal court, claiming that the Company violated the WARN Act by not providing 60 days of notice regarding the business closure. In November, 2009, the district court granted Gee West’s motion for summary judgment, holding that the 120 employees who left Gee West between September 26 and October 7, 2007 left of their own free will, and therefore, did not suffer an “employment loss” because they fell within the “voluntary departure” exception. According to the district court, because fewer than 50 employees suffered an employment loss, the situation was not covered as a plant closure by the WARN Act.
On appeal, the Ninth Circuit rejected the lower court’s analysis and reversed that determination. Instead, the Court found that the starting point in an analysis of this situation was whether 50 or more individuals would reasonably have been expected to experience an employment loss as a consequence of the closure. The Court found that in the Gee West scenario, all 150 employees fell within that parameter. The second step was to determine whether those individuals suffered “employment loss” when the business closed. While Gee West argued that all employees who stopped coming to work departed from their employment voluntarily, the Court disagreed, finding that such argument would allow an employer to escape responsibility under the WARN Act’s 60-day notice requirement in every situation in which a group of employees left the company based upon that company’s imminent closure, and took the number of remaining employees under 50.
This was an “issue of first impression” for the Ninth Circuit, meaning that the factual scenario has not been addressed by that Court before now. However, until the economy stabilizes further, this scenario is one that companies may be experiencing with more frequency than in the past. Therefore, employers should be aware of the provisions of the WARN Act, and should comply with the 60-day notice of closure to employees, should 50 or more individuals be expected to experience an employment loss because of that closure.
 

Written by Leigh M. Nason, Esquire (Ogletree Deakins, Columbia, SC)

 

Despite ongoing litigation with health care providers and insurers, the Office of Federal Contract Compliance Programs (OFCCP) recently issued an extensive administrative directive to provide “comprehensive guidance for assessing when health care providers and insurers are federal contractors or subcontractors.” The December 16 directive emphasizes that OFCCP will assess contract coverage on a case-by-case basis; nonetheless, the directive provides a (perhaps premature) roadmap of possible jurisdictional issues for health care providers and insurers arising from their relationships with federal health care programs and/or participants.

According to the directive, OFCCP’s assessment of coverage issues for health care providers and insurers will include the following:

 Does the health care provider or insurer have a covered federal contract or subcontract? Hospitals and health care providers are clearly subject to OFCCP jurisdiction through direct contracts with federal executive agencies – such as the Department of Veterans Affairs or the Federal Bureau of Prisons – to provide medical services. According to this recent directive, however, OFCCP jurisdiction also may be established when a health care provider or insurer contracts with one of the nationwide federal health care programs (Medicare, TRICARE, and the Federal Employees Health Benefit Plan [FEHBP]). Jurisdiction can attach even if the arrangement is not labeled a “contract” or “subcontract” and even if such arrangement specifically rejects the obligation to comply with federal affirmative action obligations.

 Covered contracts with federal health care programs can include the provision of insurance, health care services (HMOs, PPOs, PSOs, or other forms of managed or coordinated care), administrative support (such as claims and data processing, customer service and marketing), medical savings plans/flexible spending plans, or a combination of these services and others.

 When prime contractors with federal health care programs subcontract the performance of elements of the contract or subcontract for supplies and services necessary to the performance of the contract, a “subcontractor” relationship may be established and OFCCP may have jurisdiction over the subcontractor company. OFCCP’s directive also makes clear that its jurisdiction extends beyond “first-tier” subcontractors, so that any company that provides goods and services necessary to the performance of the prime contract or which fulfills an element of the prime contract would be a covered subcontractor.

 Exemptions currently recognized by OFCCP include insurance reimbursement agreements between a health care provider and a federal contractor to provide health insurance (but not health care services), reimbursements made pursuant to Medicare Parts A and B (but not Medicare Parts C and D), Medicaid, grants, and other forms of financial assistance.

 Notably, OFCCP’s directive claims that, for multi-establishment companies, even one covered contract or subcontract will establish OFCCP jurisdiction over all of the company’s establishments and facilities. This assumption by the agency is troublesome, especially in light of OFCCP’s insistence elsewhere in this directive that these issues must always be evaluated under a “case-by-case approach.”

This directive is particularly ambitious in light of the ongoing litigation of some of these very issues pending before the Administrative Review Board and the U.S. District Court for the District of Columbia. Should OFCCP not prevail in these cases, enforcement of this directive by the agency will be very difficult. Similarly, if OFCCP prevails in one or both of these cases, OFCCP’s enforcement efforts with regard to health care providers and insurers will only increase.

We strongly recommend that all health care providers and insurers immediately evaluate whether they could be classified as federal contractors and/or subcontractors – either through 1) direct federal contracts or subcontracts with federal executive agencies and/or 2) arrangements with federal health care programs and/or participants. While the ultimate enforceability of this directive depends in part on the ongoing litigation with the Braddock and Florida Hospital cases, health care providers and insurers which have arrangements with federal health care programs and participants can expect OFCCP to aggressively investigate claims of exemption. If such exemption claims are unsuccessful, these employers must familiarize themselves with and comply with federal affirmative action obligations, some of which attach at various monetary thresholds.
 

Although supervisors generally are not covered by the National Labor Relations Act (NLRA), which protects “employees” from unfair labor practices, that Act is deemed to have been violated if a supervisor’s discharge results from his refusal to commit an unfair labor practice. Recently, the 6th U.S. Circuit Court of Appeals upheld the dismissal of a supervisor’s federal court complaint on the basis of lack of jurisdiction, holding that because the individual claimed to have been fired for refusing to take action against pro-union employees, the issue could only be properly reviewed by the National Labor Relations Board (NLRB). Lewis v. Whirlpool Corporation, 6th Cir., No. 09-4231, Jan. 12, 2011.
Timothy Lewis worked for Whirlpool for 30 years, from 1977 until 2007, in its non-union facility in Marion, Ohio. In 2004, certain Whirlpool employees began to wear pro-union shirts, and to meet with union representatives. Lewis – a supervisory employee at the time – alleges that he was instructed by a company vice president to “build a case” and to terminate two of the pro-union employees. He refused to do so.
In March 2007, Lewis was accused of “badging” an employee. (Badging refers to a procedure during which a supervisor clocks-in an employee using the time badge of a different employee.) After an investigation, Lewis was fired. He then filed a charge with the NLRB, alleging that he was fired because of his refusal to “commit unfair labor practices” in 2004. In November 2007, Lewis received a letter from an NLRB field examiner, stating that his charge against Whirlpool was “without merit,” and informing Lewis that the regional Director was prepared to dismiss the charge for that lack of merit. The letter gave to Lewis the option of withdrawing the charge voluntarily, which Lewis did.
In March, 2009, Lewis filed a lawsuit against Whirlpool for wrongful discharge claiming that he was fired “in violation of public policy” after he refused to terminate the pro-union employees in 2004. Whirlpool filed a motion to dismiss the complaint on the basis that the claim was preempted by the NLRA. The district court agreed, and granted the motion to dismiss.
Lewis appealed, arguing that as a supervisor, he was not subject to the NLRA and, therefore, that he could not have gone forward with his claim in that venue. However, the Sixth Circuit pointed out the available exception, in which a supervisor may bring a claim under the NLRA when he is disciplined and/or terminated for refusing to commit unfair labor practices. In response, Lewis attempted to portray the November 2007 letter from the NLRB as a statement that the Board did not have jurisdiction over him, based on his supervisory role. However, because that letter actually addressed the substance of Lewis’ claim, finding it to be without merit, and letting him know that it would be dismissed unless withdrawn, the Sixth Circuit refused to allow Lewis to support his claim with that letter.
While the employer/company was the successful party in this matter, the lesson for employers is really between the lines here: while the prevailing view is that supervisors are not entitled to the rights offered to “employees” under the NLRA, this case points out the statutory exception. Although supervisors are not explicitly covered by the NLRA, the actions of a supervisor who is refusing to commit an unfair labor practice are clearly protected. Employers cannot take any action that would interfere with, restrain or coerce a protected employee in the exercise of his or her rights under the NLRA. Taking such action through a supervisor actually compounds the violation by creating a legal cause of action in favor of the supervisor.
 

The 1st U.S. Circuit Court of Appeals reminds us that while Congress’ antidiscrimination laws are designed to protect workers’ rights, they are “not intended to function as a collective panacea for every work-related experience that is in some respect unjust, unfair, or unpleasant.” Consistent with this statement, the court dismissed the claims of four female radiology technicians who complained that their supervisor’s abrasive behavior and its resulting “nerve-wracking” work environment caused each of them to leave her employment at a Department of Veterans Affairs (VA) hospital. Ahern, et al v. Shinseki, 1st Cir., 09-1985, December 13, 2010.

Eileen Ahern, Debra Auger, Maureen Mastalerz, and Lynda Parker were employed as radiology technicians in the diagnostic imaging service (DIS) of a VA Hospital in Providence, Rhode Island. All four reported to a chief technologist (Joan Beaudoin) who, in turn, reported to the administrative officer, Mehrdad Khatib, who was in charge of personnel management. When Khatib first took over, the DIS employed 16 staff technologists, 14 of whom were female. Khatib hired contract technologists, 11 of whom were male and 7 of whom were female.

Beginning in 2003, the plaintiffs and several of their co-workers complained to Beaudoin about Khatib’s management style, claiming that Khatib was creating “stressful working conditions” and a “hostile working environment.” Khatib was advised of the issues, and was asked to work to resolve them.

Early in 2004, Khatib advised Beaudoin that the 4-day workweek schedule by certain of the technologists, including all four plaintiffs, was creating inefficiencies, and asked Beaudoin to change that schedule to a regular 5-day workweek. This change was not implemented, although Beaudoin ultimately instituted a modified version of Khatib’s proposal that included keeping the 4-day workweek intact.

In April 2004, the plaintiffs, along with three female and two male coworkers, submitted a formal complaint about Khatib, suggesting that he had proposed the 5-day workweek in retaliation for the employees’ initial complaints against him, and complaining that he had treated a particular male employee “with more respect” than others, that he was “bullying” the staff, that he harbored “unreasonable and unrealistic expectations,” and that he was setting employees up to “look and feel like failures.” While the complaints were identified as “sex discrimination,” they included a statement that Khatib also treated certain male employees “horribly.”

All four plaintiffs ultimately left the VA Hospital and filed a lawsuit, claiming gender-based discriminatory hiring, retaliation, and constructive discharge. The lower court entered summary judgment for the hospital, which was upheld by the First Circuit on appeal.

The First Circuit found that because none of the plaintiffs actually applied for any of the positions filled by Khatib, there could be no gender-based discrimination against hiring them. In response to the claim of retaliation, the Court held that the plaintiffs were unable to show the required “materially adverse action” that underlay the claim. While the plaintiffs pointed to Khatib’s attempt to change their 4-day workweek, the Court specifically found that “[m]erely proposing a change in an employee’s schedule does not, in and of itself, constitute a materially adverse action.” Because Khatib’s plan was never brought to fruition, no materially adverse action occurred and, therefore, no retaliation could be proven. In response to the plaintiff’s last claim, the Court found that the allegation of constructive discharge was not sufficiently supported, because the plaintiffs failed to show that their working conditions were “so difficult or unpleasant that a reasonable person . . . would have felt compelled to resign. While the Court agreed that plaintiffs’ evidence showed that Khatib’s behavior “created divisiveness and unrest among employees who worked under him,” and that it “may have engendered a “nerve-wracking environment,” that environment was not based on gender. The Court pointed out that “generally disagreeable behavior and discriminatory animus are two different things.”

Working for a difficult or even unreasonable supervisor can be burdensome, but unless evidence exists to show that such behavior by a supervisor is gender based, Title VII is not the appropriate vehicle for recourse. Of course, this case should not be read to justify overlooking or ignoring complaints made by employees. An employer’s obligation to effectively and promptly investigate employee complaints should not be taken lightly. While Title VII and other state and federal antidiscrimination laws are not meant to be viewed as a code of general civility, the parameters set by those statutes should be reviewed, understood, and enforced by employers, in order to avoid the risk of liability that accompanies their violation.
 

The National Labor Relations Act (NLRA) is one of the few federal employment/labor laws which does not include a specific provision requiring employers to post a notice related to employee rights under that law. That may be about to change. On December 21, 2010, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking, pursuant to which all employers covered by the NLRA would be required to post educational notices which would inform employees of their rights to act collectively, to discuss the terms and conditions of their employment with each other or with a union, and to form a union for purposes of collective bargaining. Under the proposed wording of the Notice to be posted, it will be illegal for an employer to question employees about union-related activities, to stop them from soliciting for union formation during non-work time, and to prohibit them from wearing union insignias on clothing (except in certain special circumstances).

Underscoring the fact that the NLRB is serious about its enforcement of the proposed notice-posting requirement, the Board has announced that an unfair labor practice charge could be filed against an employer that fails to comply with the proposed rule, once it become effective. Also, if an employer fails to post the required notice of employee rights, the Board may find that the 6-month period for filing any unfair labor practice charges by employees of that employer does not begin to run until the Notice is posted or until the employee filing the charge “otherwise acquires actual or constructive notice that the conduct in question may be unlawful,” thereby extending the applicable statute of limitations.

It is of note that the proposed rule provides that an employer’s failure to comply with the notice-posting requirements may have an effect on that company’s defense of other unfair labor practice charges, because the Board may consider “knowing noncompliance with the posting requirement” in determining whether unlawful motive has been established in situations where such an “unlawful motive” is an element of the violation.

If the proposed rule comes into effect, employers with significant numbers of employees who lack proficiency in English will be obligated to post the notice in the language spoken by those workers. Further, employers that customarily communicate with employees via electronic mail will be required to distribute the notice by e-mail or by posting it prominently on the company’s website or intranet.

In short, this proposed rule may make up for the perceived ground that was lost in the legislative fight over the Employee Free Choice Act, which is now viewed as all-but-dead; and while most employees are unfamiliar with their rights under the NLRA, this proposed notice-posting rule will certainly broaden the resources available to employees to educate them about those rights.

Public comment has been invited on the rule and its proposed enforcement provisions. Such comments will be accepted until February 22, 2011, and should be submitted electronically to www.regulations.gov, or can be mailed to Lester A. Heltzer, Executive Secretary, NLRB, 1099 14th St., N.W., Washington, D.C. 20570. The final rule, which is likely to be issued in the spring, will take effect by summer, 2011, unless slowed by litigation or action in opposition by Congress.
 

The National Labor Relations Board has issued an order accepting as “the law of the case” a 2009 decision by the 2d U.S. Circuit Court of Appeals in which, drawing a distinction between picketing and striking, that Court held that a New York health clinic unlawfully fired five employees for joining a picket line, even though the picketing itself was an unfair labor practice by the union. Correctional Medical Services, Inc, 356 N.L.R.B. No. 48, December 9, 2010.

Correctional Medical Services (“CMS”) operated a health clinic at a state correctional facility in Albany, NY. In September 2002, five off-duty employees of CMS joined a peaceful union picket line of about 20 individuals that was protesting CMS’ refusal to recognize AFSCME Local 1000 (“the union”) as bargaining agent for all of the clinical workers of CMS. The picketing was peaceful, and lasted for less than an hour, without blocking access to the clinic. CMS issued letters to the five off-duty employees, informing them that the union’s conduct was “illegal” and, therefore, that the five employees would be informed of their employment status after an investigation.

Section 8(g) of the National Labor Relations Act (NLRA) includes a provision that requires a labor organization to provide at least 10 days advance notice before engaging in “any strike, picketing, or other concerted refusal to work” at a healthcare entity. In this case, no such notice was given, and the five CMS employees ultimately were terminated from their employment. CMS also filed a charge against the union under Section 8(g). The union settled the Section 8(g) charge, but filed its own charge, alleging that the termination of the five off-duty employees violated the National Labor Relations Act (“NLRA”).

In 2007, the NLRB said that the employees had acted in violation of the NLRA, and that the termination were appropriate. The union filed a petition, asking the Second Circuit to review the NLRB order, and that petition was granted. On appeal, the Second Circuit ruled that the NLRB improperly construed Section 8 of the NLRA related to healthcare workers.

Under Section 8(a) of the NLRA, an employer commits an unfair labor practice if it interferes with an employee’s right to organize. Picketing is generally considered to be a protected activity under the Act. However, in the 1974 amendments to the NLRA, Congress modified Section 8 of the Act, adding a restriction – Section 8(g), mentioned above – related to picketing or striking against a healthcare entity, and requiring a 10-day notice of such activity by “labor organizations.” That particular sub-section does not state that an individual employee who participates in such activity commits a violation. Under modified Section 8(d), however, an employee who engages in “any strike” at the healthcare entity without the required notice is no longer an “employee” under the NLRA, losing all protection under the Act. This was the language cited by CMS to support its discharge of the five picketers.

However, the Second Circuit pointed out that while Section 8(d) provides that an employee who engages in a strike without proper notice “shall lose his status as an employee of the employer engaged in the particular labor dispute,” Section 8(d) does not include a comparable provision about employees who participate in peaceful picketing conducted by the union in violation of those notice requirements. Therefore, while a “labor organization” is subject to sanctions for either striking or picketing without observing the appropriate notice under Section 8, the Act specifically sanctions only those individuals who participate in a strike against a healthcare entity, and not in picketing of that same employer (unless those individuals are actually “agents” of the union under a separate Section of the NLRA). The Second Circuit then vacated the NLRB’s decision, and remanded the case back to the NLRB for review.

On remand, the Board accepted the Second Circuit’s 2009 decision, and found that CMS violated the NLRA by interfering with the employees’ rights to act collectively. It further found that CMS violated the NLRA by threatening the employees with disciplinary action before the investigation that led to their discharge, and by interrogating the employees about the picketing. Under the Act, CMS’s questioning of the employees was viewed by the Board as “coercive.” Importantly, the test for coercion under the applicable section of the NLRA “does not turn on the employer’s motive.” In other words, an employer’s good-faith belief that its actions are not coercive is not a defense.

This importance of this case to healthcare entities is obvious, in light of current efforts toward unionization of healthcare employees. While the Board’s decision does not bring up this fact, the Second Circuit specifically pointed out in its 2009 opinion that this circumstance involved only “peaceful picketing by off-duty employees that caused no disruption to the operation of the clinic,” but states that it could “conceive of certain circumstances where protected picketing could cause disruption in the ability of a health care facility to deliver health care.” Interestingly, this language is not referenced in the Board’s recent opinion and, therefore, it may be safe to assume that the Board may not be as flexible as the Court in holding differently if the picketing at issue is more disruptive than in this instance.
 

The 8th U.S. Circuit Court of Appeals has held that an employee who was fired for repeatedly violating her employer’s call-in policy cannot proceed with her lawsuit under the FMLA. Thompson v. CenturyTel of Central Arkansas,LLC, 8th Cir, No. 09-3602, December 3, 2010.

Loretta Thompson began working for CenturyTel, a telecommunications company, in 2003. In 2006, Thompson began reporting to Carolyn Wilson, a Programming Supervisor. When Thompson began her employment, she received an employee handbook that included a call-in policy that required employees to call the supervisor each day during a period of absence. Any employee who failed to provide proper and timely notice for three consecutive workdays, or for three separate workdays during a 12-month period was deemed to have voluntarily terminated employment. Thompson also acknowledged receiving written departmental policies that included the call-in policy in 2006, 2007, and 2008. The departmental policies specifically provided that call-ins were to be made directly to Wilson and, if Wilson was unavailable, that a voice mail message was to be left for Wilson, notifying her of the absence. Wilson also permitted her employees to call in weekly, once a formal approval of FMLA leave had been issued.

In the summer of 2007, Thompson applied for and received a four-week FMLA leave. During this period, Thompson failed to call in as required. Once she returned from the leave, Wilson gave a verbal warning to her, and reminded her of the company’s call-in policy.

On April 30, 2007, Thompson did not report to work and did not call in to report her absence for that day. When Wilson called Thompson at home, Thompson claimed not to have been aware that she was scheduled to work that day.

On November 16, 2007, Thompson called in sick and told Wilson that she would be off work until November 21. Although Thompson had been scheduled to work on November 17, 20, and 21, she did not call in on those three days. Thompson subsequently claimed that she did not call in on those days because she planned to apply for FMLA leave for the absence. Thompson received a written warning for her failure to call in on those three days. The warning specifically stated that Thompson was “expected to follow Company policies and procedures,” and that failure to do so “could lead to further disciplinary action up to and including termination.”

On January 29, 2008, Thompson left a voice mail for Wilson stating that she was sick. Thompson reported to work the next day, but left early for a doctor’s appointment. Later that same day, Thompson left a message for Wilson saying that she could not return to work until February 5, 2008, but did not speak to Wilson or leave further messages for her after that.. On February 5, Wilson returned to work and was told that her employment was terminated, because she had violated the call-in policy seven times within the past 12 months.

Thompson sued CenturyTel for violation of the FMLA, claiming that CenturyTel interfered with her leave under that Act. CenturyTel defended the claim by saying that Thompson was fired not because of her FMLA leave, but because she had violated the company’s call-in policy. The lower court granted summary judgment for the employer, and the Eighth Circuit upheld the decision on appeal, in an unpublished opinion.

FMLA regulations specifically provide that an employer may require an employee on FMLA leave to “report periodically on the employee’s status and intent to return to work.” Thompson did not dispute that she failed to comply with the call-in policy, but argues that she would not have been terminated if she hadn’t taken FMLA leave. The Eighth Circuit held that to the contrary, Thompson’s repeated violations of the company’s policy were not directly related to any particular FMLA leave but to her failure to report her own absences as required and, therefore, summary judgment in the company’s favor was appropriate.

Here, CenturyTel’s clear, understandable, widely disseminated, and consistently enforced policy paved the way for the dismissal of Thompson’s lawsuit. The fact that Thompson had received the policy in writing in each of the years that she worked for Wilson was a critical element of the company’s successful defense in this case, and is a mechanism that should be noted by employers who decide to implement a call-in policy for absences that include FMLA-related absences.
 

A medical resident with Asperger’s Disorder was unable to meet his burden, in his ADA lawsuit against his hospital employer, that he was “otherwise qualified” for his position. The 6th U.S. Circuit Court of Appeals upheld summary judgment in favor of the hospital, because the resident’s requested accommodation – that the hospital physician and staff be educated on the symptoms and triggers of Asperger’s – did not address the key obstacle preventing him from performing a necessary function of his job, or resolve his inability to fulfill his responsibilities as a hospital resident.  Jakubowski v. Christ Hosp. Inc., 6th Cir., No. 09-4097, December 8, 2010.

Martin Jakubowksi graduated from the University of Medical Sciences in Poznan, Poland in 2003. In July 2005, he began a medical residency at St. Elizabeth Hospital in Youngstown, Ohio. In October, he was placed in a remediation program to improve performance weaknesses, but his contract at that hospital ultimately was not renewed. He then enrolled at the New York Medical College for a year-long supervised clinical training. He received mixed reviews there, with the negative comments focused largely on his lack of communication skills.

In July 2007, Jakubowski found a second residency, this time at Christ Hospital in Cincinnati. During the first month of that residency, he received mixed reviews. While his “medical knowledge” scores were high, he scored poorly on an emotional intelligence exam, and was evaluated as deficient in self-awareness, social competence, and relationship management. One attending physician observed that Jakubowski had poor organizational skills, skipped standard procedures in his examinations, and performed procedures incorrectly. While Jakubowski never caused actual harm to any patient during his residency, his supervising physicians noted his inability to communicate effectively with nurses, and certain unclear orders made by Jakubowski for medication and treatment of patients.

On August 25, 2007, Jakubowski was formally diagnosed with Asperger’s. On that same day, but before formal notification to the hospital of that diagnosis, the director of the residency program (Dr. Diller) informed Jakubowski that he would be terminated from his residency on September 30, 2007. On September 11, Jakubowski’s attorney sent a letter to the hospital proposing that the hospital accommodate the diagnosed Asperger’s by increasing the “knowledge and understanding” of the physicians and nurses working with Jakubowski. The hospital responded that it did not have sufficient resources to comply with the proposal by Jakubowski, but offered to help him in finding a residency in pathology, a field that required little or no patient interaction.

Jakubowski sued the hospital, alleging that he had been let go because of his Asperger’s Disorder, and claiming that the hospital failed to accommodate that disability. The lower court granted summary judgment in favor of the hospital, and that decision was upheld by the Sixth Circuit on appeal. In its analysis, the Sixth Circuit pointed out that effective communication with colleagues and patients was an essential function of a resident’s job. Whether or not Jakubowski was a “qualified” resident in spite of his Asperger’s depended on whether his proposed accommodation would improve his communication and interactions with others. Because the proposal to increase the “knowledge and understanding” of his co-workers about Asperger’s did not directly improve Jakubowski’s ability to communicate effectively, because the proposed accommodation was involved an indefinitely period of time and indefinite frequency, and because Jakubowski’s inability to communicate could have an adverse effect on patient safety, the Sixth Circuit upheld the lower court’s dismissal of the case.

While the ADA prevents an employer from discriminatorily terminating an otherwise qualified individual on the basis of a disability, Jakubowski was unable to prove that he was “otherwise qualified” to successfully complete his residency, because his proposed accommodation did not directly improve his ability to communicate with co-workers and patients. According to the Sixth Circuit, a plaintiff has the burden of proving that he will be “capable of performing the essential functions of the job with the proposed accommodation,” and Jakubowski was unable to do that. Therefore, he could not proceed with his ADA claims.

This holding does not excuse employers from participating in the interactive process by engaging in a reasonable discussion of accommodations proposed by a disabled employee. It does, however, indicate that unless an impaired individual can describe and request an accommodation that allows him or her to undertake the essential functions of the job, that individual cannot support a lawsuit under the ADA.

 

The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities, or being “regarded” as having such impairment. In order to support a “regarded as” claim under the ADA, an individual has to show that the perceived impairment limited a major life activity and that the limitation was “substantial.” The 5th U.S. Circuit Court of Appeals recently held that a nurse’s claim that her employer viewed her as unable to perform job duties as a treatment nurse was insufficient to show that the employer viewed her as generally unable to perform as a nurse. Winborne v. Sunshine Health Care, Inc., 5th Cir., No. 09-60755, November 17, 2010.

In 1992, Barbara Winborne began working as a licensed practical nurse (LPN) at Sunshine Rest Home. A year later, Winborne was diagnosed as suffering from transient ischemic attacks (TIAs). When she experienced a TIA, Winborne had difficulty concentrating, often experiencing dizziness, temporary loss of awareness, and severe headaches. In order to control the attacks, Winborne took mediation, and had no problems performing her job duties. In 2005, she informed the Director of Nursing for Sunshine Health Care(SHC) that she suffered from the TIAs.

On July 8, 2005, during her rounds through the facility, Winborne checked on an elderly dementia patient, who required restraints because she was prone to agitation. Thirty minutes later, when Winborne returned to the room, she found the patient hanging out of the bed with the bed rails lowered, and held only by her pelvic restraints. The patient was rushed to the hospital and later was returned to the facility.

The incident was reported to the Mississippi Department of Health (MDOH), as required by law, and an investigation was done, during which Winborne was suspended from her employment. Based upon its investigation, the MDOH found “abuse and neglect” of the patient. SHC discharged Winborne, based on its policy that requires termination of an employee found guilty of patient neglect. Winborne sued SHC, alleging that she was fired in violation of the ADA, and because SHC regarded her as disabled. A jury awarded her $10,000 and over $25,000 in attorney fees and costs. On appeal, the Fifth Circuit reversed and entered judgment in favor of SHC.

In order to show that SHC regarded her as substantially limited in the major life activity of working, Winborne had to prove that SHC believed her to be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. Importantly, the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Winborne therefore had the burden to show that her perceived impairment extended beyond her one particular job to a class of jobs or to a broad range of jobs in various classes.

The factors that a court may consider in determining whether a person is substantially limited in the major life activity of working include the job from which the individuals has been disqualified because of an impairment (or perceived impairment), and the number and types of other jobs utilizing similar training, knowledge, skills or abilities within the geographic area to which the individual has reasonable access. In this case, Winborne offered no evidence to show that her condition disqualified her from other nursing positions or from a broad range of healthcare-related positions that did not involve patient care. She also failed to present any evidence about the numbers and types of available (or unavailable) jobs utilizing similar training within the relevant geographic area, and did not ask a single question at trial about whether SHC would have hired her in an administrative role.

Because Winborne failed to present any evidence to prove that SHC regarded her as unable to perform a class of job, or a broad range of jobs in various classes, the Fifth Circuit concluded that the trial evidence was insufficient as a matter of law to support the jury’s verdict, and revered the verdict. This holding is important to employers, who should recognize that in order to successfully defend against ADA claims, it is helpful for the employer to be able to show the availability of jobs (within a relevant geographic area) which are consistent with the plaintiff’s skills, qualifications, and abilities. While the burden of proof is on the plaintiff in a discrimination case, information of that type can help to explain to a jury that there is no perception of “disability,” because there is no perception that the plaintiff was substantially limited in the ability to work.