By: Ogletree Deakins

After being sued for race discrimination, an employer/company filed a motion to dismiss the claims against it, arguing that a single use of the n-word was not sufficient to state a claim for hostile work environment. The lower court agreed and dismissed the case. But in a decision of which employers should be aware, the 3d U.S. Circuit Court of Appeals reversed the dismissal, clarifying the applicable standard for reviewing a hostile work environment claim. Castleberry v. STI Group, 3d Circ., No. 16-3131, July 14, 2017.

Atron Castleberry and John Brown, both African-American males, were fired without warning or explanation two weeks after they complained that a supervisor used the n-word in talking to a group of workers that included Castleberry. Although both men were brought back to work soon afterward, they were terminated again for “lack of work.”

The men brought a lawsuit in federal court, alleging discrimination/harassment and retaliation. The court dismissed the claims on the basis that the facts did not support a finding that the alleged harassment was “pervasive and regular.” (Without illegal harassment, there could be no retaliation.)

To succeed on a race discrimination claim in the Third Circuit, a plaintiff must show, under a standard set by the U.S. Supreme Court, that the discrimination was “severe or pervasive.” Third Circuit case law, however, has been less-than-clear in articulating this standard. In fact, various past cases in the Circuit have referenced the terms “pervasive and regular” and “severe and pervasive” and, in fact, at times have used more than one standard within one case.

The difference between the correct standard – “severe or pervasive” – and the others is meaningful, because the disjunctive “or” in the correct standard allows isolated incidents, if extremely serious, to rise to the level of discrimination without a pervasive on otherwise ongoing element.

In the specific case being reviewed by the Third Circuit, no factual record had been developed, so there was no way for the court to determine whether the isolated incident complained of was sufficient to state a claim under the correct “severe or pervasive” standard. For that reason, the Court reversed the lower court’s decision, and remanded the case back for further review.

The lesson for employers is important: all complaints of discrimination should be reviewed carefully, whether or not the actions complained of occurred multiple times or on only one occasion. No assumption should be made that a single incident cannot support a claim of discrimination or hostile work environment. The determinative factor is whether the incident could “amount to a change in the terms and conditions of employment.” If so, the complained of action could be held to constitute discrimination and could support claims of harassment, hostile work environment, and retaliation.

 

Picture of The Count from Sesame Street, and brought to you by the Number 1.

Complaints of unequal pay should not be taken lightly, and certainly should not be met with an immediate adverse employment action. The 8th U.S. Circuit Court of Appeals recently reinstated a female office worker’s equal pay retaliation claim that had been dismissed by a federal district court, and is allowing that case to move forward to a jury. Donathan v. Oakley Grain, Inc., 8th Circ., No. 15-3508, June 28, 2017.

Here’s what happened in that case:

  • A female office employee (Donathan) with a “good work ethic” and no prior poor reviews or prior discipline complained of unequal pay;
  • Eight days later, Donathan was laid off, along with three seasonal workers and an individual fired for documented performance issues;
  • Four days later – the first work day after the firings – the three seasonal workers were re-hired, along with a replacement for Donathan;
  • Donathan’s replacement was not licensed to do the job that Donathan had held, and did not possess experience similar to Donathan’s;
  • Donathan filed an EEOC charge and, ultimately, a federal court lawsuit which included a retaliation claim under the Title VII/Equal Pay Act;
  • The district court dismissed the claims in response to a motion for summary judgment by the employer;
  • Donathan appealed to the Eighth Circuit, which reversed the dismissal of the retaliation claim.

A plaintiff’s ultimate burden in a Title VII retaliation case is to prove that an impermissible retaliatory motive was the “but-for” cause of the adverse employment action, which is a relatively high bar – higher than simply having to prove that the protected activity of the plaintiff was one of the “motivating factors” of the firing. But in this case, the Court held that Donathan’s case should be decided by a jury for the following reasons:

  • The business reason provided by the company for Donathan’s layoff was “economic necessity tied to a seasonal downtown” in business, but Donathan’s office position never had been included in seasonal layoff in the prior years during which Donathan had worked for the company;
  • Donathan had no prior negative reviews or disciplinary actions;
  • A replacement was hired for Donathan by the very next work day;
  • The temporal proximity between Donathan’s complaint of pay inequality and her layoff (there was evidence of a phone call between managers regarding layoffs just after, and on the same day, as Donathan’s complaint, and the layoffs occurred eight days later) was “strong evidence” of retaliation.

This case is a check-list of “don’t do” actions for employers. First, and importantly, there was no factually supported business-related reason for Donathan’s termination. She was a successful employee without prior disciplines or negative evaluations, and her office position never had been included in seasonal layoffs prior to that time. Next, the business rationale given by the company (seasonal slowdown) was immediately clouded by the fact that the three seasonal workers laid off with Donathan were re-hired on the very next business day. Finally, at the same time that it brought back the three seasonal workers, the company hired an individual whose qualifications were measurably lower than Donathan’s rather than re-hire Donathan, again weakening its “legitimate business reason” for the termination.

While the dissent in this case suggests that “the majority opinion is a victory for inferring retaliatory intent from temporal proximity,” such characterization overlooks the fact that temporal proximity was only one of the number of factors on which the Court’s decision was based.

Employers should recognize that thoughtful and careful consideration and investigation of an employee’s claim of unequal pay can avoid a retaliation claim and the attendant legal action that most certainly will accompany it. In this case, there was no documented discussion, investigation, or consideration of Donathan’s issues prior to her termination and replacement.

Want a road map on how not to react to a successful applicant who announces her pregnancy immediately after receiving an offer letter? Look at the reaction of one prospective employer in Florida, who recently settled a legal claim on that issue. EEOC v. Brown & Brown of Florida, Inc., MDFL, No. 6:16-cv-1326-Orl-37DCI, Consent Decree signed May 3, 2017.

Here’s what happened in the case:

  • In early 2015, Nicole Purcell applied for an entry level position with the brokerage firm of Brown & Brown in Daytona, Florida;
  • Purcell successfully made it through multiple rounds of interviews;
  • The company made to Purcell an offer of employment;
  • Upon receiving the offer, Purcell called the company’s Employee Services Coordinator to accept, and asked about maternity benefits, announcing that she was pregnant;
  • Within 30 minutes of the call, the Coordinator sent an e-mail to Purcell, stating that the company was rescinding the job offer, because they needed somebody in the position “long term”;
  • Purcell filed a Charge of Discrimination with the EEOC;
  • In July 2016, the EEOC filed a federal lawsuit on her behalf;
  • The parties recently resolved their differences by entering into a 2-year Consent Decree, with the company agreeing to pay to Purcell $100,000 in damages.

Besides the payment term, the Consent Decree includes provisions requiring Brown & Brown to: take affirmative steps to avoid pregnancy discrimination in the future; create and adopt a pregnancy discrimination policy (to be submitted for approval to the EEOC); distribute copies to every employee and manager, and to every applicant; provide two hours of in-person training on gender discrimination, including pregnancy discrimination, to every manager involved in the hiring process; retain, at the company’s cost, a “subject matter expert” (to be agreed upon by the EEC) on sex discrimination to conduct those sessions; provide to non-managers one hour of video or webinar training on the same topic(s); make yearly reports to the EEOC for two years regarding further complaints of pregnancy discrimination, if any; post a Notice of the consent decree at the facility; and retain all documents and data related to compliance with the Consent Decree.

All of this could have been avoided, had the company engaged in an interactive conversation with Purcell regarding any limitations she might have developed related to her pregnancy, and whether any limitations that would have affected her ability to do her job could have been accommodated.

The moral of the story is clear, and the list of employers’ do’s-and-don’ts is short:

    1. Don’t assume that a pregnant employee is unable to do the job, or will be absent for a lengthy period ;
    2. Do document any discussions with applicants who raise the issue of pregnancy, to assure that issued raised are appropriately addressed;
    3. Do ask for (and document) specifics of any accommodation or job modification requested, to assure that all issues are addressed;
    4. Do assure compliance with all federal and state laws regarding pregnancy leaves;
    5. Don’t forget about post-partum issues, which also require compliance with federal and state laws.

 

 

 

 

Dollar sign onesie photo from Zazzle.com.

 

The Americans with Disabilities Act (ADA) requires both a disabled employee and her employer to work interactively to identify reasonable accommodations for the disabled employee. The 7th U.S. Circuit Court of Appeals has underscored that requirement by dismissing the claims of an individual who, it found, failed to engage fully in the interactive process. Brown v. Milwaukee Board of School Directors, No. 16-1971, 7th Circuit, May 4, 2017.

Sherlyn Brown was an assistant principal with the Milwaukee Public Schools. Beginning in 2006, she experienced knee pain due to severe arthritis; she requested and was granted certain accommodations for her limitations. She was assisted in that process by James Gorton, who was an employment specialist with the Milwaukee Schools.

In 2009, shortly after returning to work from a knee surgery, Brown re-injured her knee while restraining an unruly student. Her doctor then imposed a blanket restriction to “sedentary work with no student interaction.” After a few months, Brown’s doctor modified the restriction, and provided clarification that Brown “should not be in the vicinity of potentially unruly students.” Gorton immediately informed Brown that Brown could not continue working as an assistant principal and that she would be on paid sick leave while he worked with her to find a suitable position.

Over the following two years, and through Brown’s additional surgery-related absences and returns, Gorton worked to place Brown into a suitable position. However, nearly every available position required being in the vicinity of “potentially unruly students” since, in reality, such a broad restriction could implicate nearly every student. During the times that Gorton spoke to Brown about the restriction, Brown did not dispute Gorton’s characterization of her restrictions, nor did she attempt to explain or revise his understanding.

Gorton’s attempts to speak with Brown about the restrictions were well documented. For example, during one 3-week period, he left two voicemails, sent a certified letter, and sent an e-mail saying he would “deactivate” his file if she failed to respond. She eventually replied.

After Brown had exhausted two and a half years of her allowable three-year medical leave, Gorton again contacted Brown’s doctor, providing a list of essential functions of Brown’s position and asking for an update on Brown’s restrictions. Brown’s doctor replied that Brown could return to work, so long as she was “not put in a position where she is responsible for monitoring and controlling students that may become uncontrollable.” He also confirmed that those restrictions were permanent.

After receiving that letter, Gorton was able to find four vacant lateral positions, but all of which included being around potentially “unruly” students or potentially monitoring or controlling those students, meaning that Brown medically could not hold the positions. Brown’s employment then was terminated.

Brown ultimately filed a lawsuit in federal court, claiming that the Milwaukee schools violated the ADA by failing to accommodate her disability and then by terminating her. The lower court granted summary judgment for Milwaukee Schools, and the Seventh Circuit affirmed that decision.

The appellate court’s dismissal was based on the undisputed fact that Brown essentially could not work around students – any of whom had the potential to become unruly. (According to the court, “[e]ssentially all students are potentially unruly.”)

Brown repeatedly presented Gorton with broad work restrictions with no effort to redefine, further explain, or otherwise delineate the restrictions, other than to say she permanently could not be around or supervise “potentially” unruly students.

On multiple occasions, Gorton asked for additional explanation, but was met with the same description of Brown’s restrictions. In each instance in which Gorton asked for additional clarification, he was met with the same language regarding the requirement that Brown needed to avoid interactions with potentially unruly students.

Four days before Brown’s three-year medical leave expired, Gorton tried once again to obtain clarification that would help to reassign Brown. In response, Brown’s doctor sent a fitness-for-duty certificate that stated there was “no reason why [Brown] could not be around students; she just may not be responsible for controlling those students.” Gratuitously, the doctor also suggested that “security” should be available to control students so Brown wouldn’t have to.

The Seventh Circuit held that the facts in this case “show that Milwaukee Schools acted consistently with the restrictions imposed by Brown’s doctors.” It went on the say that “to the extent that Brown is arguing that her restrictions were less severe than Milwaukee Schools believed, the undisputed facts show that Brown failed to hold up her end of the interactive process by clarifying the extent of her medical restrictions.”

The instructive value of this opinion to employers is clear: the success of Milwaukee Schools in this case is based upon Gorton’s documentation, which relied on job descriptions, statements from the school district’s HR department, and Brown’s own unchanging statements regarding her concern over being around students. If Gorton had not documented his understanding of Brown’s restrictions and his attempts at obtaining clarification from her and her medical providers, the decision in this case may have been completely different.

The Family and Medical Leave Act (FMLA) makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise” an individual’s rights under the FMLA, or to retaliate against an employee for the exercise of rights under the FMLA. However, according to at least one federal appellate court, an employee’s use of FMLA to avoid an anticipated firing is not a valid exercise of those rights.

The 1st U.S. Circuit Court of Appeals recently held that a termination decision made after numerous attempts to accommodate an employee’s health issues, but prior to that employee’s formal request for FMLA leave was sufficient to support dismissal of the individual’s FMLA retaliation claim. Germinowski v. Patricia Harris, et al, 1st Circ., No. 16-1306 (April 12, 2017).

In that case, Heidi Germanowski – an employee of the Berkshire Middle District Registry of Deeds for over 10 years – claimed that her supervisor fired her because she requested leave protected by the FMLA. A federal district court dismissed Germanowski’s claims, and she appealed to the First Circuit, which upheld the dismissal. The facts are:

  • During the initial years of her employment, Germanowski initially worked with another employee, Patricia Harris;
  • In 2013, Harris became Germanowski’s supervisor;
  • The relationship between the two began to deteriorate, with Germanowski claiming to experience “stress and anxiety accompanied by fatigue, hair loss, aches, and gastrointestinal pain” that left her unable to work at times;
  • Harris allowed Germanowski to take time off when needed, with pay, when Germanowski requested it;
  • In October 2014, Germanowski suffered a nervous breakdown at work;
  • Subsequently, Germanowski made specific claims of mistreatment by Harris, including that Harris was “out to get her”;
  • Germanowski received a sport pistol from her husband as a gift;
  • She informed Harris of the gift, as Harris knew of Germanowski’s sport shooting hobby;
  • Harris expressed her discomfort with the gift, wondering whether Germanowski would carry the gun to work (there is no specific evidence that she did or would have);
  • On Friday, January 30, when Germanowski attempted to enter the workplace, she was denied access to the building;
  • On Monday, February 2, 2015, Harris left a message for Germanowski, directing her not to return to the workplace;
  • Fearful that her job was “in jeopardy,” Germanowski sent an e-mail to Harris on February 3, stating that she would be “out sick for the week” and was scheduled to visit her doctor;
  • On February 5, Germanowski’s doctor provided a letter to her, advising her to take a medical leave of absence to pursue treatment;
  • There is no evidence that the letter was provided to Harris or the employer;
  • On February 6, Germanowski received a voicemail message from the chief court officer in which she was told that her employment was being terminated effective immediately;
  • Germanowski sued Harris and the Commonwealth of Massachusetts, including a claim of FMLA retaliation;
  • The lower court dismissed all claims, including the FMLA claim, finding that Harris had no knowledge of Germanowski’s intent to take FMLA leave and therefore, could not have interfered in that right or retaliated because of it;
  • Germanowski appealed the dismissal to the First Circuit, which upheld the lower court’s decision to dismiss the claims.

To support its decision, the First Circuit listed the actions that the employer had taken in the year prior to the firing, including the facts that Harris consistently accommodated Germanowski when Germanowski felt unable to work; that absences allowed by Harris were fully paid; and those absences were not counted against any available leave time.

While Germanowski argued that the temporal proximity between her February 3 e-mail informing Harris she would be “out sick” for a week and her firing on February 5 was sufficient basis for her retaliation claim, the Court disagreed. Instead, it pointed out the “emotionally fraught and longstanding dispute” between Harris and Germanowski, the fear expressed by Harris about the possibility of Germanowski bringing a gun into the workplace, and the subsequent “lock out” of Germanowski based upon that fear. According to the Court:

To think that an employer in such a case fired Germanowski because she asked for some time off while she was already locked out is to suggest that common sense borne of real world experience has no role to play in the plausibility analysis.

Going further, the Court quoted the lower court’s statement that the “FMLA is not a tool an employee can use to delay or avoid a termination.” Therefore, while there was evidence that Harris and Germanowski had a troubled working relationship and that Germanowski believed that Harris was “out to get” her, such evidence does not support a causal connection between the exercise of rights under the FMLA and a subsequent termination – in fact, according to the First Circuit, those facts mitigate against FMLA liability.

This decision is interesting because it does not focus on the issue typically dealt with by courts: whether notice of serious illness provided by an employee automatically requires FMLA protections. Here, Germanowski’s e-mail that she needed to be out for a week – in light of her past medical issues – could arguably have been read as notice of a serious health condition, triggering FMLA protection. However, the First Circuit decided the case on an alternate ground: that the e-mail did not trigger the firing, which already had been in the works prior to the February 3 notice.

The salient issue for the Court was that the FMLA does not protect an employee for every reason while she is on that leave (or requesting it); it protects her only from firing because she requests or takes the leave. Here, while there was evidence of an “emotionally fraught and longstanding dispute” between Harris and Germanowski, there was, according to the Court, no evidence that Germanowski was terminated in retaliation for asserting rights under the FMLA.

 

Photo from Rachel Simmon’s Website (“Fiona’s Blog, How to Fight with your Best Friend.”)

 

The 3d U.S. Circuit Court of Appeals may have expanded the mechanisms available for individuals who plan to bring claims of sexual harassment or discrimination against an employer that conducts educational programs or activities, specifically including private teaching hospitals.

Recently, the Third Circuit found that a private teaching hospital could be held liable – under Title IX of the 1972 Education Amendments  (“Title IX”) – to a female medical resident who claimed sexual harassment by the director of her radiology program. Doe v. Mercy Catholic Medical Center, 2017 BL 69883, 3d Cir., No. 16-1247, March 7, 2017.

Employers know that Title VII of the Civil Rights Act (“Title VII”) prohibits discrimination against employees on the basis of sex. Under Title VII, an individual must first undertake and complete administrative prerequisites before filing a lawsuit. Fewer employers understand that under Title IX, an education “program or activity” that receives federal funds cannot discriminate on the basis of sex. Further, there are no administrative prerequisites to a lawsuit filed under Title IX.

Medical residency education programs, during which physicians prepare for independent practice after graduating from medical school, are expensive. The federal government funds direct and indirect graduate medical education payments through Medicare thereby, arguably, bringing those entities within the realm of Title IX protections for employees.

Jane Doe joined the diagnostic radiology residency program of Mercy Catholic Medical Center in 2011 as a second year resident. Doe took classes at the associated university (Drexel), attended lectures, and sat for exams to assess her competency. During her residency, Doe was approached by the director of the residency program, who told Doe he was attracted to her and wished to pursue a sexual relationship. When Does rebuffed the advances, the director allegedly gave unwarranted poor reviews of her performance and downplayed her abilities to other faculty members.

Doe ultimately was dismissed from the residency program and filed a federal court lawsuit under Title IX. The Title IX claims were dismissed by the lower court; the court held that Mercy was not an “education program or activity” and that Doe couldn’t use Title IX to circumvent Title VII’s requirement to file an administrative charge with the EEOC prior to a lawsuit. The Third Circuit reversed the dismissal, allowing Doe’s case to move forward, and holding that Title IX applied to Doe’s claims.

The Third Circuit specifically found that the residency program was an “education program or activity” because the program was affiliated with Drexel’s College of Medicine, and because Doe was required to learn and train under faculty members. The Court also held that the requirement regarding federal funding should be determined by looking at the entity as a whole, rather than at one specific program. Therefore, the fact that Mercy’s Medical Center received Medicare payments brought its radiology program under Title IX’s purview.

This case is important to employers who:

  • Deal with individuals in joint student-employees roles (similar to the resident in this case);
  • Have joint educational and business purposes (such as the teaching hospital here or, arguably, an on-the-job training center);
  • Participate in governmental programs, while simultaneously providing educational or training opportunities (for example, a pharmaceutical company that conducts research funded by federal grants, and at the same time provides training or education to its participants).

While Title VII of the Civil Rights Act allows an employee to claim discrimination and/or harassment under that statute, it does not preclude the filings of those claims under other laws. Importantly, the Third Circuit pointed out that the mere fact that an individual is an “employee” does not limit that person’s claims to Title VII – allowing individuals in positions similar to Jane Doe in this case two options for legal action.

Most education-related entities (primarily colleges and universities) understand that they are obligated to comply with Title IX. But this Third Circuit decision may lead to an expansion of the use of that statute in gender discrimination/harassment cases, should other federal circuits follow this Court’s lead. Employers who may fall within the parameters set forth in this case – even tangentially – should recognize that Title IX also includes requirements such as the appointment of a Title IX coordinator, and the structuring of an internal grievance procedure. It would be wise for such institutions to review the criteria used by the Third Circuit to determine that the program in this case was subject to Title IX.

 

Photo of The Count on Cloud 9 from Sesame Street (https://www.youtube.com/watch?v=4I3_QulC_ac)

Every January 31, employers who are scrambling to meet the deadline for mailing W-2 forms to their employees have discovered that scammers are trolling for that very information.

This year, a new iteration of an old W-2 phishing scam has surfaced. In the 2017 version, scammers posing as a company’s CEO or other high-level executive target human resources (HR) and payroll professionals with email messages requesting certain W-2s or all of a company’s W-2s.

The email messages appear authentic and the associated email address actually looks like the email address of an executive authorized to receive such information. Hitting reply and attaching W-2s, however, sends the requested W-2s directly to the scammer, who then can use the W-2s themselves and all of the information they contain in a myriad of nefarious ways.

This scam and others like it became so popular in 2016 that the Internal Revenue Service (IRS) alerted payroll and HR professionals to be aware of the threat. At that point, the IRS noted that, “Criminals using personal information stolen elsewhere seek to monetize data, including by filing fraudulent tax returns for refunds.” Unfortunately, the IRS’s notice and last year’s incidents of the scam have not prevented its recurrence, and similar spoofing email messages are rampant again this tax season.

To protect your company from the liabilities associated with these scams, the business disruption caused by testing the efficacy of your data breach response plan (your company has one, right?), and the hit to employee productivity that such events cause, employers should consider promptly taking some of the following steps:

  • Share this article – or at least the basic factual information – with all employees who have access to personally identifiable information (PII) so they know about the scam and can avoid becoming the next victim.
  • Ensure that all employees who have the ability to send PII by email refrain from replying to email messages seeking PII. Instead, require that they always draft new email messages in which they personally type the email addresses of the recipients or pull the recipients’ email addresses from their own contacts.
  • Limit transmission of PII to encrypted email messages, and communicate the encryption code by a method other than email.
  • Require that transmission of PII occur only after two employees have evaluated the request and confirmed the request’s authenticity and appropriateness.
  • Train employees so that they are familiar with the steps they can take to determine not only the published name of the sender but also the sender’s actual email address.
  • Ensure that your company constrains authorization to access PII with effective technical, physical, and logistical barriers.

Be prepared to take the following steps if you encounter this scam or any data breach:

  • Ensure that you respond as legally required within the applicable time frames.
  • Thoroughly investigate and document the incident.
  • Promptly remedy the circumstances that led to your breach. Implement protective, multi-disciplinary, physical, logistical, and policy/process controls to prevent further disclosures and mitigate future risk.
  • Provide law enforcement with required notices.
  • Provide legally required notices to any individuals whose PII was disclosed.
  • Provide identity-theft protection to affected individuals.

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Dani Vanderzanden, author of this article, is a Shareholder in the Boston office of Ogletree Deakins and is Co-Chair of the firm’s Data Privacy practice group. She devotes a large portion of her practice to helping employers to reduce their potential for liability to their employees and third parties regarding issues of the type mentioned in this article. She is CIPP/US certified by the International Association of Privacy Professionals and provides advice regarding cybersecurity and privacy matters, including applicable state, federal and multi-national privacy and information security requirements.  In 2015, the National Law Journal selected Dani for inclusion on its inaugural list of “Cybersecurity & Data Privacy Trailblazers.”  This article was originally posted on the Ogletree website.

In a recent unpublished opinion, the 11th U.S. Circuit Court of Appeals issued a carefully considered and well-structured instruction for those who want to further understand the concept of “essential functions” of a position in cases under the Americans with Disabilities Act (ADA). Bagwell v. Morgan County Commission, No. 15-15274 (11th Cir., January 18, 2017). There, the Court made it clear that an employer sets the essential functions of a position, based on business needs.

Under the ADA, a qualified individual with a disability is someone who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. To support an ADA claim, a person must show either that s/he can perform essential function without assistance, or can perform those functions with some reasonable accommodation. An individual who cannot make this initial showing is not qualified for protection under the ADA.

Therefore, in reviewing a lawsuit under the ADA, a court’s first step is to determine the “essential functions” of the job – the fundamental job duties of the position. If the plaintiff in an ADA lawsuit is unable to perform those functions on his or her own, or with a reasonable accommodation, the lawsuit cannot go forward.

In the case under review by the Eleventh Circuit, Katrina Bagwell had sued her employer, Morgan County, Alabama. She claimed that her ADA claim was wrongly dismissed by a trial court, and contended that the park groundskeeper position she had held involved far fewer essential functions than were listed in the job description. Her argument was based on the fact that because some functions were “infrequently performed” – a fact not disputed by the County – they could not have been “essential.”

The Eleventh Circuit disagreed, stating that the “nature of the groundskeeper position required the employee’s duties to shift based on [the park’s] specific needs,” and not every function had to be continuously performed. Because Bagwell suffers from a medical condition exacerbated by traversing uneven and wet surfaces, walking, and standing for periods of time, she could not undertake those functions during a flare-up of her condition. Because her job required picking up trash and tree limbs, traversing the park daily, and cleaning park bathrooms regularly, her periodic inability to undertake those functions kept her from being a “qualified individual” protected under the ADA.

While an analysis of the essential functions of a particular job must be done on a case-by-case basis, this opinion indicates that it is the employer’s view of a job’s responsibilities that carry the strongest significance. According to this Court, although an employer may be required to restructure a particular job by altering or eliminating marginal functions, “an employer is not required to transform a position into another one by eliminating essential functions.”

 

Photo of Delano Park, from Morgan County, AL Convention and Visitors Bureau website (http://decaturcvb.org/item/delano-park)

According to a federal judge in Pennsylvania, employees are not entitled to the job restoration protections of the FMLA after the statutory leave has expired, even where the employee has received permission from the employer to extend that leave. Wevodau v. Commonwealth of Pennsylvania, et al, 2017 BL 1246 (MDPA, January 4, 2017).

Kevin Wevodau, a former FBI employee, was hired in 2013 by the office of Pennsylvania’s Attorney General, Kathleen Kane, as a Special Agent in Charge of the Bureau of Criminal Investigations. In 2014, Wevodau’s relationship with the Attorney General was made complicated by the fact that Kane cancelled a “sting” operation that Wevodau believed was valid and necessary, and after which Kane refused to bring charges.

In December 2014 and January 2015, Wevodau testified before a grand jury investigating allegations of wrongdoing within Kane’s administration. Subsequently, the relationship between Kane and Wevodau became more strained when an undercover agent involved in the earlier sting operation filed a defamation suit against Kane and Wevodau, which then publically spotlighted the disagreements between those two regarding the operation.

In June, a meeting was held between Kane and Wevodau after which Wevodau claimed that Kane threatened him and told him to resign. Within days, Wevodau applied for a 12-week leave of absence under the FMLA for “personal health issues,” and the leave was granted. Five weeks after the expiration of that leave, Wevodau attempted to return to work, but was told that to return, he would have to undergo a fitness for duty examination. Wevodau failed to return to work at any subsequent point – but explained that his failure was because he was not told exactly what he needed to do to complete the evaluation, and not on any medical inability to return. Although he remained on a paid administrative leave, Wevodau was no longer on FMLA leave.

After over eight months on administrative leave, Wevodau filed a state court lawsuit which included an FMLA retaliation claim, arguing that the Commonwealth’s “refusal” to allow him to return to work was retaliation. The lawsuit was removed to federal court, and the Commonwealth moved to dismiss the FMLA claim, arguing that Wevodau lost his entitlement to job restoration once his FMLA leave expired. In response, Wevodau claimed that the fact that his employer had provided additional, non-FMLA leave extended his job restoration rights.

The district court held in favor of the employer here, and cited multiple decisions of the Third Circuit, each of which included the same holding: employees are not entitled to the job restoration protections of the FMLA after the statutory leave has expired, even where the employee was given express permission to extend the leave beyond the 12 weeks allotted by the FMLA.

In this case, there was no complicating factor – as there might be in some cases – where the employee’s delayed return could be viewed as an accommodation under the ADA during which some medical issue is resolved. Here, Wevodau was medically released to return to work at the conclusion of his FMLA leave, but did not do so. The court did not agree with his assertion that the permission to extend his leave also extended his right to job restoration and instead, relied on Third Circuit precedent to dismiss the FMLA retaliation claim.

The attorney-client privilege is sacrosanct to most attorneys, especially those attorneys who hold in-house positions. The privilege often – and appropriately – is asserted by in-house counsel to protect communications that were conducted with certain individuals while those individuals were employed by the company, regardless of their employment status at the moment.

However, what happens to that protection if the in-house counsel opens new discussions with an individual who no longer is employed by the company? In a holding that has gotten the attention of in-house attorneys nation-wide, one state’s supreme court decided that the attorney-client privilege “does not broadly shield counsel’s postemployment communications with former employees.” Newman v. Highland Sch. Dist., No. 90194-5 (Wash., Oct. 20, 2016). Here’s what happened in that case:

  • A high school football player suffered a permanent brain injury at a football game in 2009, one day after he sustained a head injury during football practice;
  • Subsequently, the player and his parents sued the school district for negligence;
  • Prior to trial, the school district’s attorney interviewed several former coaches, and then appeared and represented those coaches at their depositions;
  • Plaintiff’s motion to disqualify the attorney from representing the former coaches at the depositions was denied;
  • Plaintiff then sought discovery related to the communications between the school district’s attorney and the coaches during the period after the coaches left employment, but before they were represented by the attorney at their depositions;
  • The school district filed a motion for protective order, arguing that the attorney-client privilege protected counsel’s communications with the former coaches;
  • The trial court denied the motion, and the school district appealed to the Washington State Supreme Court, which upheld the denial.

The Washington State Supreme Court framed the issue as “whether postemployment communications between former employees and corporate counsel should be treated the same as communications with current employees for purposes of applying the corporate attorney-client privilege,” and then answered that issue by finding that “the privilege does not broadly shield counsel’s postemployment communications with former employees.”

The Supreme Court affirmed the lower court decision and ordered discovery to go forward, allowing the plaintiff’s attorneys to seek information about discussions between the former employees and the school district’s counsel that occurred prior to the deposition.

The Court in this case addressed three stages of communication between the school district’s attorney and the coaches, and applied the attorney-client privilege to two of them:

  1. There was no dispute about the fact that communications with counsel, if any, conducted during the coaches’ employment would be protected by the privilege;
  2. Plaintiff did not appeal the trial court’s order denying disqualification of counsel from representing the coaches at the depositions, so communications at and for purposes of the deposition were protected; but
  3. The Court declined “to expand the privilege to communications outside the employee-employer relationship” in this circumstance.

The decision here – to allow the plaintiff’s counsel in this case to delve into recent discussions between the school district’s attorney and the former coaches – has induced some level of anxiety among in-house counsel. Because the case implicated Washington State’s attorney-client privilege, as set forth in that state’s applicable statutes, one might argue that the holding is limited. However, the Court referenced, as a starting point in its analysis, Upjohn Co. v. United States, 449 U.S. 383 (1981), the leading U.S. Supreme Court case addressing attorney-client privilege, meaning that this holding may well be picked up by other courts.

For now, in-house counsel should be made aware of this decision and should seek to establish, at an early stage in litigation, formal legal representation of any former employee/witnesses who may be viewed as speaking on behalf of the company, unless that representation creates a conflict of interest.