By: Ogletree Deakins

Title 29 of the U.S. Code provides direction, regulation, and information regarding issues affecting labor, and includes the Fair Labor Standards Act, which addresses both federal minimum wage issues and the laws regulating overtime pay. The issues addressed under Title 29 are administered, in large part, by the Wage and Hour Division (WHD) of the Department of Labor (DOL).

Since 1947, Title 29 has included a provision (Section 259) that allows employers to request from the Administrator of the WHD a written opinion in which the Administrator would review a submitted fact-specific situation, and provide guidance, approval, or interpretation regarding whether and how the facts fit within the scope of the FLSA. Once an employer received such a written opinion, Section 259 would protect the employer from any action, including a legal action alleging failure to pay minimum wages or overtime compensation, if the employer could prove that its actions were in good faith conformity with and in reliance upon the written response from the Administrator. Such defense, if sufficiently established, would act as a bar to any lawsuit or other proceeding.

Recently, the DOL sent a letter to each attorney and/or employer whose request for such an Opinion Letter is pending with the WHD Administrator. The letter announces a “revised policy” concerning requests for such letters, and states that in the future, such fact-specific letters will be replaced by “Administrator Interpretations,” which will be issued at the Administrator’s discretion. These Interpretations will, according to the form letter, “set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision in issue.” From now on, requests for Opinion Letters will be responded to generally, with references to relevant statutes and regulations, but without any analysis of the facts presented. Individuals and legal representatives will now be forced to rely heavily on the information contained on the DOL’s Compliance Assistance page at http://www.dol.gov/whd/flsa/.

While the DOL believes that this method will be “a much more efficient and productive use of resources than attempting to provide definitive opinion letters in response to fact-specific requests submitted by individuals and organizations,” this new method may actually nullify Section 259 by making it more difficult for employers to prove that they relied on a specific opinion from the Administrator. In the absence of a “general interpretation” on the issue, employers may be forced to rely on website information, DOL publications (some of which are grossly outdated), or on opinions from DOL District Offices, which may vary from office to office, typically are not in writing, and do not have the authority of the Administrator’s opinions under Section 259.

Employers who in the past have relied on these Opinion Letters should be aware that the Section 259 defense may no longer be available to them, or may be much more difficult to assert. While an employer may still attempt to affirmatively defend itself by citing Section 259, and by providing testimony or other evidence that it acted in conformance with an administrative practice or enforcement policy of the WHD, it must now do so without the written opinion of the Administrator to assist in that proof. Clearly, employers have lost a valuable tool.
 

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. The National Labor Relations Board (NLRB) regularly has held that an employer’s actions violate Section 7 if those actions would “reasonably tend to chill employees” in the exercise of their rights under the NLRA.

Recently, the NLRB announced its plans to prosecute a complaint issued by its Hartford Connecticut regional office regarding the termination of an employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint alleges that the company, American Medical Response of Connecticut, Inc., an ambulance service, also denied union representation to the employee during the investigation of the incident.

The incident began when the employee was asked to prepare a report related to a customer’s complaint about the employee’s work. When the employee asked for union representation regarding the complaint, the company denied that representation. Later that day, after leaving work, the 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, and determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors. A complaint was filed, alleging both that the company’s actions violated Section 7, and that its internet policy was overly restrictive.

Both union and non-union employers should pay attention to further developments in this situation, particularly because 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, and 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 attempting to initiate group action. While employees do not have unlimited discretion in choosing their method of activity – they cannot, for example, be “unduly and disproportionately disruptive” – employment policies should be drafted to avoid precluding employees’ ability to act in concert, or to act to effect positive change in the terms and conditions of the workplace. According to the NLRB, such activity might even include an online discussion about the personal character of a particular supervisor.

Employees and employers alike will be watching for a decision after the January 25, 2011 hearing on this matter.
 

 

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was enacted to encourage non-career military service and to prevent discrimination against military service members. An employer may not discriminate against any person because such person has “taken an action to enforce a protection” afforded under USERRA. Generally, protection begins when an employee is called to active duty or military training, and provides orders for such duty or training. However, the 1st U.S. Circuit Court of Appeals recently held that an employee’s announcement to his employer that he intended to return to active duty after remaining inactive for multiple years was sufficient to trigger protection under the USERRA. Vega-Colon v. Wyeth Pharmaceuticals, 1st Cir., No. 09-1861, October 28, 2010.

Angel Vega-Colon, a member of the Army Reserves, became employed by Wyeth Pharmaceuticals as a Packaging Equipment Supervisor in 2002. From 2002 to February 2004, Vega was on active military status and took various leaves from Wyeth for military training. From 2004 to 2007, Vega was on inactive status with the Army Reserves, and took no leaves. However, in February 2006, he received an invitation to return to active duty as a captain, and informed his supervisor that he was going to return to active duty in the future, with a high probability that he would be mobilized. Shortly after that, in April 2006, Vega applied for a promotion to Reliability Engineer, but was not chosen for the position. 

In February 2007, Vega was returned to active military status and was promoted to captain. As a condition of that promotion, Vega was required to join an active military unit and participate in military exercises. Also in February 2007, Vega received his 2006 job performance evaluation from Wyeth in which his performance rating declined from “solid performer,” which it had been from 2003 through 2005, to “needs improvement.” Vega disagreed with this evaluation, and requested an investigation by the company. In April 2007, he filed a discrimination complaint with the US Department of Labor’s Veterans’ Employment and Training Services (VETS), based on Wyeth’s failure to hire him for the Reliability Engineer position. Vega ultimately withdrew that complaint.

On May 7, 2007, Vega met with Wyeth’s employee relations director and site director. Although the content of the discussion is disputed, Wyeth alleges that Vega made a threatening remark during the meeting which caused Wyeth to restrict Vega’s access to the facility. When Vega subsequently attempted to enter the plant to drop off military orders for a leave, he was told that he could not enter because the database listed him as terminated. However, Vega never stopped receiving his salary and benefits, and ultimately returned from that particular leave with his plant access restored. 

In July 2007, Vega was placed on a Performance Improvement Plan (PIP) which required him to meet certain objectives within 90 days. While he met that criteria, Vega was told in November 2007 that the PIP would be extended for “other reasons” until he returned from any upcoming military leave. His military unit was mobilized later that month and has not yet returned from deployment. Prior to being deployed, Vega filed a legal action against Wyeth, alleging certain violations of the USERRA, including failure to promote him in 2006, his lowered performance rating, and the extension of the PIP in spite of his completion of the objectives. The lower court granted Wyeth’s motion for summary judgment on the claims, holding that the actions complained of by Vega took place before his deployment in 2007 and, therefore, that he was not protected by the USERRA at that point. 

The First Circuit reversed on appeal, finding that Vega’s February 2006 notification to his supervisor of his planned return to active duty and his possible deployment was sufficient to trigger the protections of the USERRA, and that once the company had notification that Vega might be called to active duty, the USERRA began to apply. The Court held that to deny an employee the protections of the Act until a literal application for leave is signed and delivered would be contrary to the purpose of the USERRA.

Reviewing the merits of this case, the First Circuit upheld the dismissal of Vega’s claims related to the failure to promote him, his allegations of hostile environment, and his low performance rating. However, the Court reversed the dismissal of Vega’s claim regarding the extension of his PIP during his military leave, citing wording in the PIP itself that it would be extended after Vega’s return from leave so that “positive behavior and work habits could be verified,” in spite of the fact that Vega has successfully met the criteria set forth in the original PIP. Further, the PIP actually cited Vega’s authorized leave as one of the reasons for the extension – a clear indication that the action was taken “because of” his military status.

This case makes two important points for employers. First, protection under the USERRA can be triggered at any point in time in which an employer has information about the employee’s military status on which discriminatory treatment may be based – and that formal military orders are not always required to trigger those protections. Second, the USERRA does not allow an employer to treat an individual differently because of his military leave, and extending a performance improvement plan simply to “make sure” that an individual retains his performance improvements until he or she returns form an authorized military leave can be viewed by the courts as a violation of that Act.

 

With campaigns for the upcoming elections capturing voter interest, time-off for voting – and how that time-off affects attendance on the job – are issues that are being raised in many workplaces.  In 31 states, Puerto Rico, and the Virgin Islands, employers must allow employees time off to get to polling places and cast votes and, in certain states, face fines for not doing so. See CCH’s annual list of such states. The remaining 19 states, including Pennsylvania, afford no specific rights or protections to an employee who takes time off to vote during work hours.   

State wage and hour laws typically address the rights of an employer to take disciplinary action against employees or to withhold wages for time not worked.  For the most part, states in which time-off for voting is mandated require that employees who are registered voters be given time off to visit the polls, and usually require employers to allow two or three hours within which to do that.  Some of the state laws include provisions that require employers to allow time-off to vote only in circumstances in which there is not a two or three hour period during non-working hours in which polls are open, creating a level of administrative complexity normally dreaded by HR personnel. 

In some states – specifically Kansas and Missouri – an employer can be fined for up to $2500 and/or up to a year in jail for attempting to circumvent the state law; in California, the fine can be up to $5000. In Arizona, it’s worse: the fine can be as high as $10,000 for an “enterprise” that violates the state’s law.  Unlawful coercion related to voting is an expensive proposition for employers foolish enough to try it.  California, Maryland, and Nebraska include jail time for that offense – in Nebraska, the penalty is a fine of up to $10,000 and/or jail for up to five years.

In most states with time-off laws for voting, employees must be paid for time spent voting: employers are prohibited from penalizing an employee or making deductions from wages for at least part of the time the employee is authorized to be absent from work to cast a vote.  The majority of those states also require employees to give some type of advance notice of their intention to take time-off from work to vote (some require the notice to be in writing), and most allow employers to specify the time within which the time-off hours can be taken. 

Although these state laws regarding voting rights do not come into play very often, it is wise for employers to be familiar with them, to assure consistent compliance for all employees in states within which such laws apply. Failure to do so could lead to unnecessary fines and penalties.  

 

In an unpublished opinion, the 3d U.S. Circuit Court of Appeals has upheld a lower court’s decision to dismiss an employee’s claims of discrimination, hostile work environment, and retaliation, based largely upon the “extraordinary lengths” to which the employer went to investigate the issues complained of by the employee. Wood v. University of Pittsburgh, 3d Cir., No. 09-4469, September 23, 2010.

Deborah Wood was employed as a systems analyst by the University of Pittsburgh. Upon beginning her work on a project in a Biostatistical Center at the University, Wood was provided a retention letter that informed her that the continuation of her position was contingent upon the renewal of non-university grants that funded the project. In 2007, approximately 90% of the project’s funding was provided by grants from the National Institute of Health (NIH). In June of that year, Wood was informed that she was one of 17 individuals selected for discharge during a reduction in force, after the NIH announced that it would reduce funding of the project by over two million dollars. 

On the day of her discharge, Wood served the University with a federal court complaint asserting gender and race discrimination. Her claims were based upon incidents about which she had complained during the years preceding the reduction in force. In 2005, Wood had become convinced that someone was tampering with her office computer, and reported her belief that the computer had been remotely accessed by an unknown user. She also claimed that someone was entering her office when she was not present. Her supervisor responded to these concerns by installing a lock on the office door, by purchasing and installing software to monitor the computer usage, and by asking the University’s computer services department to review activity related to the computer. After months of investigation, including over 150 hours spent by the supervisor himself, no evidence of improper tampering was found. 

Wood was not satisfied, and contacted the University’s HR department to express that dissatisfaction. The HR department then initiated its own investigation through the summer of 2006, providing a new computer to Wood, reformatting her hard drive, and reviewing additional event logs. In November 2006, Wood alleged that someone had broken into her locked office. That report led to an investigation by campus police, along with additional forensic work by the computer department, again without evidence of inappropriate or unlawful activity. Wood considered these efforts to be “inadequate,” and filed a charge of gender discrimination with the EEOC in December 2006.

In 2007, after learning of the NIH decrease in funding and the impending layoffs, the project director offered to Wood an opportunity to interview for a new position in another section of the same project group. Wood declined the offer, and was discharged on July 12, 2007. She served her lawsuit upon the University on that same date.

The lower court dismissed Wood’s race claim prior to discovery because Wood had failed to assert that specific claim in her EEOC charge. After a period of discovery, the court also granted summary judgment in favor of the University on the remaining claims, and Wood appealed that decision. The Third Circuit upheld the dismissal of Wood’s gender discrimination claim, based upon Wood’s failure to demonstrate that the University had retained similarly situated employees who were outside of the protected class (which would have raised an inference of discriminatory animus). Dismissal of her retaliation claim was upheld because the University proffered evidence of a legitimate non-discriminatory reason for Wood’s discharge – undisputed evidence that the project’s budget was reduced when NIH funding was withdrawn, thereby necessitating layoffs. 

Most interesting was the Court’s response to Wood’s hostile environment claim, in which she argued that she suffered persistent harassment which “must have been” the result of gender bias. Upholding dismissal of the claim, the Court pointed out that the University “went to extraordinary lengths” to investigate Wood’s allegations; the Court found no evidence to suggest that any aspect of that investigation was influenced by gender bias. 

The fact that the Court was able to review and remark upon that evidence in such detail indicates that the University thoroughly investigated the incidents reported by Wood and fully documented its efforts. Employer must recognize that such investigation and documentation are the cornerstones of an effective defense against claims of unlawful discrimination and hostile environment.

 

 

In 2009, Congress passed the Lilly Ledbetter Fair Pay Act (FPA), which allows employees to file unequal-pay claims outside of the otherwise applicable 300 day statute of limitations period for filing claims of discrimination. Under the FPA, the statute of limitations re-starts each time compensation is paid pursuant to a “discriminatory compensation decision or other practice,” typically when a periodic paycheck is issued. In an issue of first impression, the 3d U.S. Circuit Court of Appeals recently upheld summary judgment for an employer, and specifically held that a black Haitian mechanic could not use the FPA to support his failure-to-promote claim under Title VII. Noel v. Boeing Co., 3d Cir., No.08-3877, October 1, 2010. In that case, an employee unsuccessfully argued that the 300-day statute of limitations began each time he received a lower paycheck than he would have received had he been promoted three years prior to his claim of discrimination.

Emmanuel Noel, a black Haitian national, began working for Boeing in 1990 as an hourly sheet metal assembler. Boeing periodically offered the opportunities to work at offsite locations. Those opportunities included greater pay, per diems, and additional training, and often resulted in promotion to a higher labor grade, if warranted by the skill and ability of the worker. In 2002, Noel and two white employees participated in an offsite assignment that resulted in their labor grades rising from 7 to 8. After seven months, the labor grade of the two white employees rose from 8 to 11, while Noel’s remained the same.

In September 2003, Noel complained about that situation to a union representative and a company labor representative, but no action was taken. On March 25, 2005, Noel filed a charge of discrimination with the EEOC, followed by a Title VII complaint in federal court on June 30, 2006. The complaint included an allegation that Noel was not promoted in 2003, when his white co-workers were.

The district court found that Noel’s claims were time barred because he did not file his EEOC charge within the required 300-day period that began when Boeing failed to promote him in 2003. Noel appealed the dismissal of his claims, arguing that under the FPA, his 2005 charge was timely, because the 300-day statute of limitation period restarted every time he got a paycheck that reflected the company’s failure to promote him to a higher paying job.

The Third Circuit upheld the lower court’s decision, stating that the FPA applies only to cases that involve “discrimination in compensation.” Discrimination in compensation means “paying different wages or providing different benefits to similarly situated employees, not promoting one employee but not another to a more remunerative position.” According to the Court, the FPA only comes into play if the employee’s complaint is based on a pay disparity – and a pay disparity claim is made only when an individual demonstrates that he or she was paid differently for equal work done under substantially similar conditions. Courts have universally treated pay disparity claims and failure-to-promote claims as separate causes of action. Therefore, Noel could not use the FPA to excuse his non-compliance with the applicable 300-day statute of limitations.

It could be argued that many employment-related decisions ultimately have some effect on compensation. However, because individuals typically have some recourse under other anti-discrimination statutes for those acts, allowing the FPA to extend statutes of limitations in those cases would “weaken” the existing administrative exhaustion requirement included in those laws, and could essentially subject all employment decisions to a time period in excess of the required 300-day limit. Employers should be aware of this decision, however, and should carefully analyze employment discrimination claims to determine whether a genuine disparate pay action is involved. If so, the claim may not be subject to the general 300-day statute of limitation.
 

The 8th U.S. Circuit Court of Appeals has determined that a company’s unwritten policy against hiring applicants with theft-related convictions was sufficient basis to exclude a minority applicant from a position with the company. EEOC v. Con-Way Freight, Inc., 8th Circ., No. 09-2926/2930, Sept. 22, 2010.

Roberta Hollins, an African-American female, was interviewed by Kenneth Gaffney, a branch manager for Con-Way Freight, for a part-time customer service position in Poplar Bluff, Missouri. During the interview, Hollins completed an application, on which she disclosed two misdemeanor shoplifting convictions.

Gaffney was impressed by Hollins, and was interested in hiring her. He discussed that plan with Kevin Beer, the vice-president of operations and Gaffney’s supervisor. Upon learning that Hollins was Black, Beer stated that Gaffney would be “opening up a can of worms” by hiring her. Gaffney continued the interview process and during a second interview with Hollins told her that his boss “told me not to hire you because if I hired you that I was just asking for the NAACP.” After completing the interview process, Gaffney told Hollins and one other candidate, Patterson – a Caucasian female – that they each had the job, and sent them both for a pre-employment drug test. However, this was in direct contravention to Con-Way’s hiring policy, which requires that prior to making an offer of employment or requiring a drug test, the personnel department must run a background check and approve the chosen candidate. Neither was done in this instance.

When Hollins did not hear from Gaffney after her drug test, she called Con-Way and was informed by Kevin Beer that Gaffney was no longer with the company. Subsequently, Gaffney’s replacement, Gary Sellers, was contacted by Anthony Godwin, a third person to whom Gaffney had offered the position. At that point, Sellers was unaware of Hollins’ discussions with Gaffney, and hired Godwin for the position. Hollins then filed a complaint with the EEOC, claiming violation of Title VII, Section 1981, and Missouri state law. The EEOC filed suit on her behalf, echoing those claims. The lower court dismissed the claims, and the EEOC (with Hollins) appealed to the Eighth Circuit.

The Eighth Circuit upheld summary judgment in Con-Way’s favor, finding that Hollins was unable to show a specific link between the alleged discriminatory animus and Con-Way’s failure to hire her. The Court pointed out that Con-Way’s policy of automatically disqualifying applicants with theft-related convictions would have resulted in Hollins’ application being rejected and, therefore, Hollins would not have been hired regardless of any discriminatory animus. While the EEOC argued that Con-Way’s policy was not in writing and was therefore not valid, the Court cited evidence produced by Con-Way that within a span of 18 months, the company had disqualified 28 applicants solely because of theft-related convictions, and that no employees at the Poplar Bluffs service center had prior criminal convictions. In addition, the Court pointed out that Hollins could not establish that she was qualified for the open position because her theft-related convictions rendered her unqualified for any position within the company.

The Eighth Circuit upheld the summary judgment in favor of Con-Way, dismissing all claims. However, it while it dismissed the federal claims “with prejudice,” meaning that Hollins cannot bring another action based upon those claims, it dismissed the Missouri state-law claims “without prejudice,” meaning that Hollins can take those claims to a Missouri state court for decision.

Employers should take note of this case for a number of reasons. First, Gaffney’s actions in going outside the established hiring protocol by offering a position to two people prior to formal background checks and an okay from the personnel department created litigation that may continue for some time into the future. Second, and just as noteworthy, is the fact that a single racially insensitive remark (that Hollins hiring would “open a can of worms”) by the vice president of operations actually triggered the chain of events that resulted in the litigation. Both of these facts indicate a critical need to train supervisors and managers to fully understand the ramifications of their actions, and to assure coordination in the hiring process to help avoid legal actions of this nature.
 

The 6th U.S. Circuit Court of Appeals has held that an employer must wait until the expiration of the medical certification period in order to deny FMLA leave to an employee. Branham v. Gannett Satellite Information Network, Inc., 6th Cir., No. 09-6149, September 2, 2010.

Deborah Branham filed suit against her employer, The Dickson Herald, a newspaper owned by the Gannett Satellite Information Network, Inc. (“Gannett”), after she was terminated for failure to follow the company’s attendance policy. On November 6 and 7, 2007, Branham was absent from work because her son was ill. On November 8, Branham called the paper’s office manager (Buhler) to say that she (Branham) was sick and would be absent that day. She did the same on November 9. On Monday, November 13, Branham’s husband called Buhler to say that he was taking Branham to see a doctor (“Dr. Singer”). At her appointment with Dr. Singer on that day, Branham reported herself to be suffering from “migraine headaches, menstrual problems, depression, insomnia, and a stomach virus.” However, Dr. Singer released Branham to return to work on November 14, and Branham called to let Buhler know that. Buhler then asked Branham to come in to fill out paperwork for short term disability leave. However, Branham did not return to work on November 14 even though she was release to return that day, nor did return at any point after that. She did, however, fax a medical certification noting her return to work date as November 14.

When Branham had not returned to work by November 20, Buhler called Branham to say that her job would be in jeopardy unless she could produce documents that confirmed her need to be off work. Branham informed Buhler that the wrong doctor had completed the November 14 certification, and that she would provide additional clarification from her primary care physician. However, when no such information was received by Gannett by November 24, the company made the decision to terminate Branham’s employment. A termination letter dated November 24, 2006, was sent to Branham by registered mail on Tuesday, November 28; Branham was contacted by phone on that same day to inform her of the firing. That same evening, Gannett received a faxed certification form signed by a nurse practitioner (Seefeldt) which stated that Branham would not return to work until January 1, 2007.

Branham ultimately filed a complaint in federal court alleging that Gannett violated the FMLA by interfering with her use of FMLA and by firing her in retaliation for seeking FMLA leave. The district court granted summary judgment to Gannett. The court found that an employer must allow an employee 15 days within which to provide medical certification in support of a leave request under the FMLA; the court further acknowledged that Branham provided a supporting certification on the 15th day after Branham’s husband reported that she was sick and planned to see a doctor, but that Branham had been fired prior to the expiration of that 15-day certification period. However, the lower court found that Gannett was entitled to fire Branham on the 11th day of the certification period, once the company had received a “negative certification” from Dr. Singer, allowing Branham to return to work.

The Sixth Circuit reversed the summary judgment for Gannett, finding that Branham was able to show that she was entitled to FMLA leave. The Sixth Circuit found –in a case of first impression for that court – that an employee is entitled to the full 15-day certification period in order to provide a medical certification supporting the need for FMLA leave. That means that even though Gannett had received information from Dr. Singer that Branham’s medical condition did not support the need for leave, Branham was entitled to a full 15 days to seek a certification that actually supported that leave.

In most employment-related lawsuits, the judge is the “trier of the law” and the jury is the “trier of the facts.” A successful motion for summary judgment can mean the dismissal of a plaintiff’s lawsuit on a matter of law. However, the denial of such motion – as in this case – simply means that a court has found a “disputed material fact” which requires review and decision by the jury. Here, the Sixth Circuit determined that the difference in the two certifications – the immediate return to work from Dr. Singer, and Nurse Practitioner Seefeldt’s certification of Branham’s ongoing incapacity – was “the essence of a factual dispute that precludes summary judgment.” By not waiting for the entire certification period to expire, Gannett set the stage for this lawsuit, which occurred when the company assumed that the first certification was the only paperwork that they would receive within the allowable 15 day response period. Although neither the FMLA nor its supporting regulations specifically instruct an employer to wait until the full expiration of the 15 day certification period, this case is an example of the result of failing to do so.

Importantly, the Sixth Circuit also found that Gannett was not entitled to delay or deny FMLA leave to Branham, because there was no evidence that the company formally requested the medical certification in accordance with the FMLA regulations. In fact, the evidence showed that Gannett failed to make a proper request for the information. The company’s short term disability form doubled as its FMLA leave form, and failed to include information (required by the FMLA regs) about FMLA certification or the consequences of returning the certification in a timely manner. Therefore, a reasonable jury might find that the 15 day certification period was never triggered.

This case is an example of the administrative complexities of the FMLA, and the resulting confusion when an employer is not fully compliant with the law and its regulations. Thorough training of HR and management is critical for full compliance with the Act.
 

An employer’s failure to keep an female employee apprised of its response to her complaints of sexual harassment, and its further failure to follow through on remedial actions could lead a reasonable jury to find that the employer did not take the complaints seriously. Such failures form the basis of a recent decision by the 8th U.S. Circuit Court of Appeals in which the Court denied an employer’s post-trial motion regarding a $100,000 jury verdict. Sheriff v. Midwest Health Partners, P.C., 8th Cir., No. 09-3367, August 30, 2010.

Sheri Sheriff was a licensed physical therapist employed by Midwest Health Partners in Nebraska. Midwest had acquired a chiropractic clinic in 2003 and had asked Sheriff to run the clinic’s physical therapy department. After she began working at the clinic, one of the employed chiropractors (Dr. Meyer) began to act toward Sheriff in a way that made her uncomfortable, including touching her and putting his arm around her. When she informed one of the nurses about Dr. Meyer’s conduct, Sheriff was told to “get used to it,” because “that’s just the way he is.”

Dr. Meyer’s conduct continued, and Sheriff ultimately reported the issue to Midwest’s management. Sheriff also wrote a letter to Meyers, explaining that the advances were “NOT okay!” and that she did not want further physical contact with him. Meyers apologized to Sheriff and said it wouldn’t happen again.

In spite of the fact that Midwest’s president (Dr. Vrbicky) was aware of a prior female patient’s complaint involving Meyer, no one from Midwest discussed Sheriff’s allegations with Meyer until Sheriff learned of that complaint, and of other instances involving another female patient. At that point, Sheriff spoke to Midwest’s Practice Manager about the situation. In addition, Meyer again began to touch, grab, and embrace Sheriff, wrapping his arm around her and touching her breasts. Sheriff then obtained an attorney who wrote to Midwest, advising it “to take aggressive action to protect itself,” and making several recommendations to stop Meyer’s behavior. Seven weeks later, in November 2005, Midwest met with Meyer, asking him to participate in counseling and requesting that he sign an acknowledgement of his inappropriate behavior. He did neither, and his behavior with respect to Sheriff took on a condescending and intimidating tone.

In a January 4, 2006 letter, and at a January 13, 2006 meeting, Midwest again set forth its remedial recommendations, and again, Meyers refused to participate. Finally, on February 23, he agreed to attend sexual harassment training, but only attended one of five sessions. Durin this same period, Sheriff was told that Meyer would be terminated within 45 days. He was not, and Sheriff was given no reason for that turn of events.

On April 11, 2006, Sheriff resigned and brought a legal action against Midwest. At trial, a jury awarded to Sheriff $100,000 on her hostile work environment claim, and Midwest filed a post-trial motion for judgment in its favor. The 8th Circuit denied that motion, finding that the jury had a reasonable basis for its verdict.

The Eighth Circuit’s opinion includes two points of which employers should be aware: first, it rejected Midwest’s argument that Meyer was simply a “touchy person” who patted men on the buttocks and, therefore, his conduct was gender neutral and not sexual harassment. Once again, a federal appellate court has rejected that argument, pointing to the fact that in this case, there was no evidence that Meyer “pulled men into his body” nor was there evidence of any complaints by men or by male patients. Secondly, at least three times in its opinion, the Court mentions the fact that Midwest failed to apprise Sheriff that it was taking action in an attempt to remedy the complained-of situation, or failed to follow up on the termination action that it told her that it was taking. It cites those failures as a possible basis for the jury’s finding that Midwest did not take Sheriff’s complaints seriously. Whether or not that was the reason for Midwest’s failures, it is important to note that this Court believed that open communication with Sheriff regarding Midwest’s remedial efforts was an important element of the employer’s responsive actions to Sheriff’s complaints. While there is no legal obligation to inform a complainant of each and every detailed step in a disciplinary action taken against an alleged harasser, the fact that the complainant is treated with courtesy and respect, and is a full participant in the process, can play a role in the way that a court or a jury views the credibility and effectiveness of the employer’s attempted remedial actions.
 

The 9th U.S. Circuit Court of Appeals has held that a female co-worker’s “relentless” pursuit of a male employee, including verbal comment and suggestive notes, could form the basis of a sexually hostile environment, even without any physical conduct of a sexual nature. EEOC v. Prospect Airport Services, Inc., 9th Cir., No. 07-17221, Sept. 3, 2010.

Rudolpho Lamas began working for Prospect Airport Services in the Spring of 2002, shortly after the death of his wife in September of 2001. In the Fall of 2002, and without instigation from Lamas, a married female co-worker (Munoz) began to make sexual overtures toward Lamas after she heard that he had stated that he “missed coming home to a family.” In November, Munoz handed a note to Lamas, telling him she was “turned on” and wanted to “go out” with him. Lamas informed their boss (O’Neill) about the note, and was advised to let Munoz know that he wasn’t interested, and to tell Prospect’s managers if Munoz continued her actions. Although Lamas let Munoz know that her interest was not reciprocal, Munoz continued her advances, including additional notes and a photo of herself that Lamas found to be sexually suggestive. At this point, Munoz reported the continued activity to another company supervisor (Thompson), who told Lamas that she would report the incidents to the general manager (Mitchell) and talk to Munoz. She did neither.

At that point, Lamas received a third, and more explicit, note from Munoz; Lamas reported this note directly to Mitchell. At that point, Munoz had also recruited other co-workers to let Lamas know how she felt. In response to Lamas’ report, Mitchell said that he “did not want to get involved in personal matters” but ultimately spoke to Munoz and told her that Lamas wanted the activity to stop.

Unfortunately, the activity did not stop; it escalated into daily comments and suggestive remarks from Munoz. This continued through the Spring of 2003. At one point, Munoz made sexual comments to Lamas in front of airline passengers, embarrassing both Lamas and the passengers. Although Lamas had reported his concerns to four different managers, no remedial action was taken. In fact one of the managers told Lamas that the whole thing was “a joke” and that he should be singing “I’m too sexy for my shirt.” Lamas began to have problems at work, including the fact that his co-workers started rumors that Lamas was gay because he was rebuffing Munoz’ approaches. Lamas’ work performance deteriorated, and he ultimately was fired for poor performance in June 2003.

Lamas took his complaint to the EEOC, which found enough factual basis to support a hostile work environment, and filed suit on his behalf. The district court granted Prospect’s motion for summary judgment, concluding that Munoz’ conduct was not “severe and pervasive” enough to support a claim for hostile work environment. In its opinion, the court stated that Munoz’ conduct was not objectively unwanted for most men, and that “most men in [Lamas’] circumstances would have ‘welcomed’ the behavior he alleged was discriminatory.”

The lower court’s dismissal was reversed on appeal to the Ninth Circuit, which pointed out that under Title VII, “[b]oth sexes are protected from discrimination.” The appellate court pointed out that “it cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome.” This is a stereotype that the court refused to accept, and pointed out that “welcomeness” is an inherently subjective issue. However, it also added that unwelcomeness has to be communicated. Here, Lamas not only expressed his refusal to Munoz, he also continually stated – to his co-workers, his friends, and four different company managers – that his Christian background and the recent death of his wife led him to find Munoz’ actions inappropriate and offensive. The Court also pointed out that while not all propositions for romance are sexual harassment, Munoz’ conduct, including the continued advances after Lamas’ rejection, her involvement of co-workers in her efforts, the suggestive photograph, and her “relentless” sexual remarks created an environment that Lamas reasonably perceived as hostile and abusive.

Notably, the Court also pointed out that the company’s actions were insufficient to establish an affirmative defense to Lamas’ complaints. Prospect’s managers did little or nothing in response to Lamas’ reports, instead telling him he should be singing “I’m too sexy for my shirt.” While that remark is troubling, the fact that the complaints by Lamas were made by a man regarding the actions of a woman may have created a skewed response from the company. Employers must recognize that Title VII protects both genders, and that a male employee’s report of harassment should be investigated and responded to as effectively as one made by a female employee.