By: Ogletree Deakins

Drawing a distinction between picketing and striking, the 2d U.S. Circuit Court of Appeals has 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. Civil Serv. Employees Assn. Local 1000 v. NLRB, 2d Circ., No. 07-5041, June 19, 2009.

The American Federation of State, County and Municipal Employees (AFSCME) represents correctional officers at a state facility in Albany where Correctional Medical Services (CMS) operated a health clinic. Local 1000 of that union attempted to organize the employees of the clinic, asking CMS to recognize the union as a bargaining agent for all of the clinic’s employees other than physicians, supervisors, and clerical workers. When CMS refused that request, the union established a picket line in which 20 individuals peacefully picketed in front of the clinic’s main entrance for less than an hour, without blocking access to the facility. Those 20 individual include five off-duty, non-union CMS employees.

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 received a letter on the following day informing them that the picketing had occurred without the required 10-day notice and, therefore, was illegal. Shortly after receiving those letters, the five employees were fired, based upon CMS’ reading of the NLRA.

CMS filed a charge against the union under Section 8(g); acting on that charge, the NLRB director issued a Section 8(g) complaint against the union. Local 1000 settled the complaint against it, but filed a charge against CMS, alleging that the employees’ firings were illegal. In May 2007, the NLRB ruled that the clinic’s discharge of employees did not violate the NLRA. Local 1000 petitioned for review of that decision. 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 is 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 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).

This case is one of which healthcare entities must be aware, especially in light of current efforts toward unionization of healthcare employees. However, we may not have seen the last of this issue. The Second Circuit points out in its 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.” While the Court states that its opinion in this case is based upon the clear wording of the statute, it suggests that “[i]f the balance is imperfect, the Board should petition Congress to fix it.”
 

The basis of an employer’s liability for a claim of hostile work environment under Title VII depends upon whether the harasser is the complainant’s supervisor or merely a co-worker. When a hostile work environment is created by a co-worker, the employer is liable only if the employer failed to provide an avenue for reporting the harassment, or if the employer knew or should have known of the harassment but failed to take prompt and appropriate remedial action. Under Title VII, an employer “knew or should have known” about workplace harassment if “management level employees had actual or constructive knowledge about the existence of a sexually hostile environment.” Therefore, once a management level employee has enough information to raise the probability of sexual harassment in the mind of a reasonable employer, the employer is deemed to be on constructive notice of that harassment.

Recently, the 3d U.S. Circuit Court of Appeals affirmed summary judgment in favor of an employer, holding that the individual team leaders who were aware of certain harassing behavior were not the “management level personnel” referred to in Title VII and, therefore, that the employer could not be held liable for the claims of harassment made by the plaintiff. Huston v. Proctor & Gamble Paper Products Corp., 3d Circ., No. 07-2799, June 30, 2009.

Priscilla Huston was employed by Proctor & Gamble’s Mehoopany, Pennsylvania plant for more than 10 years, working as a technician on teams that operated large paper manufacturing machines. In 2004, Huston allegedly heard about a number of instances in which certain of her male team members exposed themselves to other male employees. She reported those specific incidents only to her team’s “process coach” (Romanchick) and a “machine leader” (Traver), but not to senior management. Huston alleges that she subsequently witnessed two similar incidents herself. She reported those two incidents to a senior-level manager and a human resource manager. An investigation was begun on the day that the incidents were reported. Discipline ultimately was imposed to all team members, including Huston, after it was discovered that the entire team used vulgar language at work – a practice that the company had been working to eliminate. Although Huston’s disciplinary history was such that she could have been terminated for this infraction, she was simply asked to be “mindful of her language” at work.

In the fall of 2004, P&G identified a costly problem occurring at the plant, and was able to trace the problem to a lack of care on the part of the technicians, including Huston. At that point, all technicians were informed that they risked termination if caught fabricating data for machine data logs. In spite of this warning, Huston admittedly falsified certain data into the logs, and was terminated from employment. She then filed a complaint asserting a sexually hostile environment, claiming that Romanchick and Travers were “managers” who put the company on notice of the plant’s hostile environment, and that the company should have acted sooner with respect to the hostile environment.

The Third Circuit affirmed a lower court’s dismissal of the case, finding that Romanchick and Travers did not qualify as management-level employees for purposes of Title VII and, therefore, that the company was not on notice of the hostile environment until Huston reported it to senior management. Unlike salaried managers, Romanchick and Travers were paid on an hourly basis, and had no actual authority to hire, fire, or discipline others. Instead, they performed essentially the same functions as the remaining team members, with certain additional oversight functions. According to the Court, an employee’s knowledge of sexual harassment may be imputed to the employer only when (1) that employee is sufficiently senior in the employer’s governing hierarchy so that such knowledge is important to that person’s general managerial duties; or (2) the employee is specifically employed to report or respond to sexual harassment.

This case provides a bright line definition of “managerial employee” with respect to Title VII’s use of that term by requiring knowledge of a hostile environment to reach an employee in the “governing body” of the company, as opposed to a mere “supervisory employee in the labor force.” According to the Court, “[a]lthough an employer has a duty to be reasonably diligent in attempting to discover co-worker harassment, an employer is not expected to know every instance of harassment that may occur between co-workers.” While this should not be read as permission to ignore or minimize instances of harassment that come to light, it allows employers to fully understand their duty under Title VII, and to respond effectively when allegations of sexual harassment are properly raised.
 

Litigation often ends when one party files a motion for summary judgment, asking the court to determine that there is no issue of material fact for the jury, and asserting that a decision can be made in its favor based solely on the legal issues. In reviewing a motion for summary judgment, a court must view the record in the light most favorable to the non-moving party. Recently, the 2d U.S. Circuit Court of Appeals reversed summary judgment for an employer in an age discrimination case, holding that the lower court “failed to construe the evidence in the light most favorable to [the employee] and to draw all permissible inferences in [his] favor.” Weiss v. JPMorgan Chase & Company, 2d Circ., No. 08-0801, June 5, 2009.

David Weiss alleged that he was terminated from his position at JPMorgan Chase & Company in violation of the Age Discrimination in Employment Act (ADEA) after he was replaced, at age 56, by an individual 16 years his junior. The parties agreed that Weiss presented a prima facie case of discrimination, and that JPMorgan introduced evidence that it had a legitimate non-discriminatory reason for firing Weiss. At the final stage of the now-familiar McDonnell-Douglas analysis, Weiss was required to satisfy the ultimate burden of proving that JPMorgan’s proffered reasons actually were a pretext for age discrimination. The district court reviewed the evidence, and found in favor of JPMorgan. On appeal, the Second Circuit reversed that decision, and held that based upon the available facts – when viewed in a light most favorable to Weiss – a jury may have been able to infer pretext regarding JPMorgan’s reasons for Weiss’ termination. The Second Circuit addressed each of the arguments asserted by Weiss in response to the reasons proffered by JPMorgan, and found each to have created such an inference.

JPMorgan’s asserted reasons for Weiss’ termination centered around complaints by Weiss’ sales team regarding his leadership style, and included the subjective determination (made by a supervisor who only had known Weiss for four months) that “the team had lost confidence in Weiss.” Weiss argued that his team was dissatisfied with their bonuses, over which he had little or no control; that the defection of his top sales person was not due to any action on Weiss’ part, but on JPMorgan’s refusal to match an offer to that individual made by a competitor; and that Weiss never had been put on notice regarding his failure to “cover” certain accounts, which ultimately led to his firing.

Importantly, the Court went into detail about the company’s “shifting explanations” for Weiss’ termination, stating specifically that “[i]nconsistent or even post-hoc explanations for a termination decision may suggest discriminatory motive.” After characterizing JPMorgan’s explanations as “vaguely formulated and technically inaccurate,” the Court pointed out that a jury can infer pretext from the company’s failure to present those termination reasons to Weiss initially, especially in light of an HR employee’s testimony that the company advocated “giving true reasons” to employees who are fired. Further, the Court pointed out that JPMorgan acted outside of its normal termination procedures by failing to allow Weiss an opportunity to correct his filings prior to the termination decision. While the company asserted that urgent business circumstances justified the deviations from its customary procedure, the Court stated that “Whether Weiss’ superiors were persuaded by a sense of business urgency or [by] age discrimination to contravene normal procedures to terminate Weiss is a question for the jury.”

This case is a strong reminder to employers to: (1) act consistently with company policies and procedures; (2) train supervisors and managers to effectively conduct termination meetings; (3) base employee discharge decisions on business-related, fully-documented reasons. To do otherwise may be to create a circumstance in which the company is forced to rely on subjective assessments and incomplete rationales, which can, as in this case, lead a court to find sufficient issues of material fact to allow the matter to be decided by a jury.
 

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects members of the armed services against employment discrimination related to the benefits of their employment. The 7th U.S. Circuit Court of Appeals has held that such protection refers to employment benefits that are “extended generally to military and non-military employees alike,” and that discontinuing a benefit that had been extended only to employees with military obligations does not violate the USERRA. Crews v. Mt. Vernon, 7th Cir., No. 08-2435, June 2, 2009.

Ryan Crews, an officer of the Police Department in Mt. Vernon, Illinois, has been a member of the Army National Guard since 1988. As a Guard member, Crews is required to attend certain weekend training and preparedness exercises on a monthly basis. Under the collective bargaining agreement between the City and the police employees, the City has the discretion to establish work schedules to meet operational needs. Police officers’ weekly schedules typically consist of five 8-hour shifts and two days off. Crews’ military obligations frequently conflict with his work schedule. In these instances, the City has grants time-off to Crews (and other Guard member/employees) to attend drills. While the leave is unpaid, the City has allowed Guard member/employees to turn in their military pay in exchange for their regular City pay, so as not to incur any net loss in weekly wages. Guard member/employees also may allocate paid time off to days missed for military drill, thereby collecting both City pay and military pay for those days.

For several years, the City maintained a policy under which Crews was permitted to reschedule work shifts that fell on drill weekend, allowing him to use weekend-drill shifts as his weekly days off. This allowed Crews to collect military pay for the drill weekends, while also collecting his full weekly City pay. Three other Guard member/employees were granted this scheduling benefit between 2000 and 2003.

In 2006, the City hired two additional Guard member/employees. At that point, it was determined by the City that extending the policy to an increasing number of individuals would result in numerous and costly scheduling conflicts, because the policy allowed Guard member/employees to work weekday shifts that already were fully staffed. Following the policy’s rescission, Crews no longer can collect a full week’s pay during his drill weeks, unless he uses his limited paid time off. This problem is especially acute for Crews because, as a corporal, his regular work schedule is Wednesday through Sunday; he has no ability to bid for preferred days off like lower-ranking officers do.

In 2006, Crews filed a complaint against the City, alleging that the rescission of the work scheduling policy denied to him a “benefit of employment” based on his military status, in violation of the USERRA. The lower court denied Crews’ motion for summary judgment, and found in favor of the City. Crews appealed to the Seventh Circuit, which upheld that decision. According to the appellate court, the “benefit of employment” referenced in the USERRA is one that is provided to both military and non-military employees and, therefore, that law “reaches only discriminatory employment actions that provide military employees with fewer benefits.” Rescinding a preferential work schedule, thereby placing Crews on equal footing with other police department employees who required days off for non-military reasons, was not a violation of the USERRA.

The City’s ability, as set forth in the relevant collective bargaining agreement, to “establish work schedules to meet operational needs,” is likely to have been a factor in the Court’s analysis of this issue. Employers who plan to modify or eliminate preferential schedules previously granted to service member/employees should base such modification or elimination on a documented business reason. To do otherwise may support a claim of discriminatory treatment or retaliation under the USERRA.

USERRA does more than prevent discrimination and, according to the Department of Labor, “establishes a floor, not a ceiling, for the employment and reemployment rights and benefits of those it protects.” Therefore, nothing in the Seventh Circuit’s decision suggests that employers should not continue to provide greater benefits to military service members. Also, if such increased benefits are made part of a negotiated agreement, employers may be legally obligated to continue their implementation. In situations similar to this case, however, in which a more favorable work schedule was instituted solely for the convenience and benefit of military service members, it is likely that employers can modify or eliminate such benefit for business-related reasons without violating the USERRA.
 

Recently, the 10th U.S. Circuit Court of Appeals reviewed a company’s testing and interview procedure for new hires, and decided that certain subjective hiring criteria did not necessarily create a mechanism for excluding female applicants. That review occurred in the context of a lawsuit brought by a female applicant who alleged gender discrimination when the Public Service Company of Colorado (PSCo) refused to hire her for an entry level position at its power plant. Turner v. Public Service Co. of Colorado, 10th Cir., No. 07-1396, April 28, 2009.

Susan Turner applied for a “Plant Specialist C” position at PSCo’s Comanche Power Plant in 2000, 2004, and 2006. To evaluate applicants for this position, PSCo used a 3-step process. First, it gave a written test related to mechanical aptitude. Applicants who passed that test moved to a second stage, in which candidates’ resumes were reviewed for relevant experience and skills, for which points were awarded. The applicants with the highest number of points advanced to the third stage, which consisted of an interview with a panel of four PSCo employees. The interview consisted of a set of pre-selected questions — used for each interviewee — which addressed skills like initiative and risk taking, adaptability, dealing with ambiguity, and team building. Each interviewer assigned a numerical rating to each candidate. After the interviews, the panel decided on consensus scores for each applicant’s competencies.

During the hiring process in 2006, Turner reached the interview stage, but was not hired. She received the second lowest rating of any interviewee, and later testified that she felt that she had “struggled” throught the whole thing. The only other female applicant received the second highest rating, but refused the offer of employment from PSCo. After Turner was unsuccessful in her 2006 attempt for the Plane Specialist position, she brought a lawsuit, alleging that PSCo’s hiring process was discriminatory. The lower court granted summary judgment for PSCo, and Turner appealed.

On review, the Tenth Circuit affirmed that decision, largely on the basis that Turner was unable to show that the company’s hiring criteria were simply a pretext for discrimination. Under the now-familiar McDonnell Douglas mechanism, Turner was required to set forth a prima facie case, including the facts that she is a member of a protected class, she suffered an adverse employment action, she was qualified for the position, and that she was treated less favorably than others outside her protected class. Once that prima facie case is established, PSCo had to articulate some legitimate, non-discriminatory reason for its decision not to hire Turner. In order to successfully substantiate her claim of discrimination, Turner was then required to show that PSCo’s legitimate, non-discriminatory reason for not hiring her was merely a pretext, and that the actual reason was discrimination.

The lower court found that Turner did, in fact, establish a prima facie case, and the Tenth Circuit agreed. Further, PSCo was found to have proffered a legitimate non-discriminatory reason for not hiring Turner: she “performed poorly in her interview.” Although Turner argued that the interview process was a sham meant to hide the company’s discriminatory hiring practices, the court disagreed, stating that although “the presence of subjective decision-making can create a strong inference of discrimination,” the use of subjective criteria is “not unlawful per se.” The court pointed out that each applicant answered the same questions during PSCo’s interviews, and that the criteria used for ranking the candidates was predetermined in a written company document. Further, the company was able to link the substance of the questions to job-related competencies. According to the court, Turner provided no evidence that the interviewers injected their own additional subjective criteria into the process, and therefore, was unable to carry her burden of showing some discriminatory animus.

The key to this decision was the standardization of the company’s interview process. The questions were pre-set, written, job-related, and asked consistently of each applicant, and the interviewers were not given the discretion to determine the scope of the interview. Because the same questions were used for all applicants, and because the evaluations were based upon pre-discussed criteria and not “whims or unguided opinions,” the company prevailed.
 

An employee alleging a violation of the Sarbanes-Oxley Act (SOX) must file a complaint within 90 days from the date of that alleged violation. That 90-day period begins to run from the date on which the complainant knows or reasonably should know that the complained-of act has occurred. In whistleblower cases under SOX, the 90-day statute of limitations runs from the date on which the employee receives “final, definitive, and unequivocal notice” of an adverse employment decision. As defined in SOX, the term “unequivocal” means that the notice is not ambiguous, and is free from misleading possibilities.

On April 30, 2009, a Department of Labor Administrative Review Board (ARB) determined that an employer’s notice to its employee was ambiguous and did not trigger the 90-day statute of limitations, because the letter included language that indicated that the company was willing to review and consider any evidence from the employee that could refute the termination decision. Snyder v. Wyeth Pharmaceuticals, DOL ARB, No. 09-008 (4/30/09, released 5/7/09). Based on that fact, the employee’s complaint to OSHA was timely, even though the complaint was filed more than six months after the employee received the letter which ostensibly indicated that the company had decided to terminate his employment.

Gregg Snyder was employed by Wyeth Pharmaceuticals as an Engineer IV, responsible for all Building System functions at the company’s Cambridge, Massachusetts facility. In September 2007, Wyeth’s HR director informed Snyder that he was being suspended with pay pending an investigation of allegations that he had improperly accessed confidential information. On October 1, while suspended, Snyder sent an e-mail to Wyeth, alleging certain Code of Conduct violations by Wyeth officials, and alleging that his suspension was part of a continuing course of retaliation by Wyeth. On October 17, Snyder received a letter from Wyeth’s HR Director (Lingen) which stated that prior to Snyder’s October 1 e-mail, the company already had made a decision to terminate Snyder’s employment. However, the letter also stated that “if you would to provide me with specific information in writing as to why you think your termination is not justified or specific details of the ‘harassment’ you feel you have received, I would be happy to review it.” Snyder responded on October 19 by again alleging retaliation and harassment.

On February 11, 2008, Wyeth sent a letter to Snyder stating that the company “has concluded that the decision to terminate your employment is appropriate,” and informed Snyder that the termination was effective as of that date.

On May 8, 2008, Snyder filed a SOX complaint with the Occupational Safety and Health Administration (OSHA). OSHA found that the complaint was untimely because it had not been filed within 90 days of October 17, when Snyder received Lingen’s letter regarding the pre-October decision to terminate him. Upon review, that decision was upheld by an Administrative Law Judge. However, the ARB subsequently reversed the decision, finding that the wording of Lingen’s letter offered to allow Snyder to provide information that might change the termination decision, injecting an element of ambiguity into the communication. Therefore, the letter did not constitute a final, definitive, and unequivocal notice of termination sufficient to commence the running of the statute of limitations.

This decision tells employers that threats of termination that include either an opportunity for performance improvement or a mechanism for avoiding the threatened firing do not actually constitute the “final, definitive, and unequivocal notice” necessary to start to 90-day statute of limitation running under SOX for a whistleblower claim. While this should not preclude employers from allowing individuals to avoid employment termination by improving performance, it does provide a warning that once a termination decision is made and appropriately substantiated, it should be implemented without delay, unless there is a legitimate business-related reason for that delay.

 

In 2007, during a nationwide upsurge in pregnancy discrimination claims, the Equal Employment Opportunities Commission (EEOC) released a set of guidelines advising employers on issues related to caregiver bias. On April 22, 2009, the EEOC further supplemented those guidelines with specific recommendations designed, it said, to help employers to “reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity.” The document can be found at www.eeoc.gov/policy/docs/caregiver-best-practices.html.

The caregiving responsibilities addressed in the EEOC’s recent guidance include not only childcare, but care to parents and older family members, as well as to relatives with disabilities. The primary directives issued include: (1) development and dissemination of a “strong EEO policy” that addresses the types of conduct that may constitute discrimination; (2) training managers to recognize legal obligations created by anti-discrimination statutes and ensuring compliance with policies that support those obligations; (3) effective response to complaints of caregiver discrimination; and (4) providing clear assurance to caregiver/employees of protection from retaliation for such complaints.

The document also addresses issues related to recruitment, hiring, and promotion of employees with caregiving responsibilities, and includes specific suggestions in those areas. For example, the EEOC suggests developing specific job-related qualification standards for each position, to reflect the duties, functions, and competencies of the position. Such standards can help to minimize the potential for gender stereotyping which, in turn, will minimize the opportunity for caregiver discrimination.

Another area addressed in the EEOC’s guidance is avoiding discriminatory treatment of caregivers through the “terms, conditions, and privileges of employment.” Specifically, the EEOC suggests monitoring compensation practices for patterns of potential discrimination, and reviewing workplace policies that limit employee flexibility. The “best practices” include a number of flexible and reduced-time options, with examples of each. While not every example will be suitable for every employer, the guidance certainly informs employers of the expectations of the EEOC with respect to caregiver issues. Such information provides a sense of how these cases will be viewed by the Commission during its investigation and attempted resolution of discrimination charges in this area.

Many of the suggestions included in the guidance are similar to or parallel actions that employers currently are reviewing or enforcing to assure compliance with other recent employment law developments, including the Ledbetter Fair Pay Act, the recent FMLA regulations, and the upcoming Paycheck Fairness Act.

While the EEOC’s technical guidelines are designated as “best practices” – meaning that they are proactive measures recommended by the Commission, and are not statutory requirements – knowledgeable employers recognize that courts turn to the EEOC for direction in interpreting both federal and state anti-discrimination laws. Therefore, it is imperative that companies begin to train managers and supervisors on the content of this most recent guidance, to assure complete awareness of all legal obligations that may have an impact on decisions about treatment of employees with caregiver responsibilities.
 

Sharon Sybrandt was fired from her position as an Operations Assistant Manager at one of Home Depot’s Nashville stores after she allowed a co-worker to use her password-protected user ID to modify a special order transaction for Sybrandt. In addition, Sybrandt herself subsequently entered computerized “notes” on the transaction, indicating that she wanted to cancel part of the order and receive a refund. Both actions were in violation of the company’s “no-self-serve” policy. After Sybrandt was replaced by a male employee, she sued Home Depot, alleging gender discrimination under both federal and state laws. The lower court granted the company’s motion for summary judgment in April 2008, and the 6th U.S. Circuit Court of Appeal recently upheld that decision. Sybrandt v. Home Depot, USA, Inc., 6th Cir., No. 08-5598, March 26, 2009.

Sybrandt began working at Home Depot in 1991. In 2006, her employment was terminated for an alleged violation of a company policy that prohibits employees from working on their own purchases and transactions. Sybrandt testified that she was aware of the policy, and understood that its purposes were to deter theft and dishonesty, and to avoid even the appearance of impropriety. However, she argued that the decision to fire her was “unfair and extreme,” and asserted that the termination was simply a pretext for discrimination.

Under the now-familiar McDonnell Douglas shifting burden analysis, an individual has the initial burden to come forward with a prima facie case of discrimination; the employer is then obligated to show a legitimate business reason for its actions; the ultimate burden is on the employee to show that the proffered reason is a pretext for discriminatory motive. In this case, the parties agreed, for purposes of summary judgment, that Sybrandt was able to set forth a prima facie case, and that Home Depot had set forth a legitimate business reason for its action. The argument, then, was whether the proffered reason was based in fact, or whether it simply was a pretext to mask discriminatory treatment.

While Sybrandt argued that the company’s reason was overly technical and not based in fact, Home Depot was able to set forth evidence of an internal investigation, taken after it was made aware of Sybrandt’s actions. That evidence showed that the investigator – one of Home Depot’s Employment Practices Managers (EPMs) – believed that Sybrandt had breached the company’s policy, and that he had recommended discharging 18 Home Depot employees for the same reason over a previous three year period. In spite of Sybrandt’s disagreement with Home Depot regarding whether her actions technically violated the policy, it was the company’s thorough investigation that supported Home Depot’s assertion that it had an honest belief in its proffered nondiscriminatory reason for the termination.

An employee cannot establish that the reason for an adverse employment action is discriminatory simply by showing that the action may have been technically incorrect. The key inquiry in assessing whether an employer holds an honest belief that its action was appropriate is whether that employer made a “reasonably informed and considered decision” before taking the complained-of adverse action. In this case, Home Depot’s thorough, complete, and reasonable investigation (in which it interviewed Sybrandt and her co-workers, reviewed security camera footage of the incidents, and obtained written statements from various witnesses) supported its assertion that it took the action necessary to enforce its policy, and helped it to avoid legal liability in the matter. The decision to fire Sybrandt reflected a “considered” judgment, which Sybrandt was unable to contradict with any evidence other than her own testimony.

 

The 8th U.S. Circuit court of Appeals has upheld summary judgment in favor of an employer who terminated the employment of an individual undergoing cancer treatment. Peyton v. Fred’s Stores of Arkansas, Inc., 8th Cir., No. 08-2346, April 15, 2009. In that case, the Court held that because there was no reasonable accommodation that would have allowed the individual to perform the essential functions of her job during the period in which she was absent for treatment, there was no violation of the ADA.

An employer discriminates against an employee, in violation of the Americans with Disabilities Act, if the employer fails to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” However, ADA protection extends only to individuals who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires.

Floyce Peyton, an experienced retail store manager, was hired by Fred’s Stores of Arkansas as the manager of its Heber Springs store. After successfully completing three weeks of management training, Peyton began work on January 6, 2006. On January 9, Peyton was diagnosed with ovarian cancer and immediately was hospitalized. On that same day, Peyton’s fiancée delivered a note, signed by Peyton’s physician, to the store’s assistant manager, which stated that “Floyce Peyton needs to be off work at least 1/9/06. Return date unknown.”

Peyton underwent surgery on January 12. In the following days, the area manager for Fred’s Stores attempted to discuss with Peyton what type of accommodation Peyton might need. At that time, Peyton responded that she did not know how long she would be out. The area manager then contacted the regional vice-president to inform him of the situation and to advise him that the store was without a manager. On January 14, the area manager again called Peyton to let her know that the company had to “let [her] go.” The assistant manager was then made the store manager at Heber Springs.

In March, Peyton was given a limited release for work by her physician. After six months of chemotherapy, she was deemed physically able to perform the duties that would have been required of her as manager of the Heber Springs store. Peyton subsequently filed a law suit against Fred’s Stores, alleging that the company failed to accommodate her disability. The lower court granted summary judgment on behalf of the company; that decision was upheld by the Eighth Circuit on appeal.

The parties agreed that Peyton was disabled because of her illness and treatment, and that there was no information to indicate when, if ever, she would be able top return to work. They also agreed that, at the time of her hospitalization and initial treatment, Peyton was unable to perform the essential functions of her store manager job, with or without accommodation. Therefore, Payton was not a “qualified individual with a disability” for purposes of the ADA at the time of her firing. Further, the Court found that Peyton’s inability to assert a return to work date would require the company to allow her an indefinite leave of absence which, it held, was per se unreasonable as an accommodation, as it would “burden [the employer] with the duty to see into the future,” which was not the intent of the ADA.

However, employers should not use this case as the basis for overlooking the interactive process required by the ADA when determining whether a reasonable accommodation exists. Because cancer treatment is specifically referenced in the ADA Amendments Act, employers should carefully review situations in which employees ask for accommodation for such treatment, and should assure that a sincere attempt is made to reasonably accommodate such individuals. Employers should pause before considering employment termination to assure that, in fact, the individual is unable to perform the essential functions of the job, and that there is no alternative to an indefinite absence.
 

The Family and Medical Leave Act (FMLA) entitles eligible employees to 12 weeks of leave during a 12-month period under certain circumstances which include a “serious medical condition.” An employer is allowed, under the regulations associated with the FMLA, to require an employee to document his or her medical condition, and further may require the employee to submit certification of that condition from a health care provider.

Recently, the 7th U.S. Circuit Court of Appeals addressed a situation in which an employee altered her health care provider’s certification to add an impairment that had not been diagnosed by that provider. In that case, the Court upheld the lower court’s summary judgment in favor of the employer, finding that the employee’s alteration invalidated the entire application. Smith v. The Hope School, 7th Cir., No. 08-2176, March 30, 2009.

Tanum Smith worked for The Hope School from May 2005 until September 2006. In her position, Smith worked with developmentally challenged children as a one-on-one instructional aide. During 2006, Smith was injured on two separate occasions: first in April, when she was pushed to the ground by a student who then struck and kicked her, and then in June, when she was hit in the mouth, after which Smith suffered neck pain. During the following months, Hope School attempted to work with Smith to place her in a position without student contact, consistent with restrictions instituted by Smith’s doctor.

On August 22 or 23, however, Smith went the school‘s HR department to complain that her job assignment was “unsafe,” and that she was leaving until a safe assignment could be found for her. At that point, Smith was informed that if she failed to appear for work on August 25 as scheduled, her absence would be considered as “unexcused,” putting her job in jeopardy. However, on August 24, Smith left a phone message, asking for FMLA leave.

Smith then was provided with FMLA paperwork, and was told to complete it as soon as possible. Smith took the paperwork to her physician, who completed it that same day, although Smith did not pick up the forms until September 6. At that point, Smith added to her doctor’s description of her condition the words “plus previous depression,” in spite of the fact that no doctor had ever diagnosed or treated Smith for that condition. In addition, she submitted a second form that her doctor had not filled out or signed, adding more information about her “depression.” She then faxed the altered paperwork to the school. Because the school suspected that the certification had been altered, the school’s HR department called the physician’s office to ask about the form. Upon receiving confirmation that the form had been changed, the school contacted the Department of Labor, who advised them that they could deny Smith’s request for leave, which they did. Smith was then disciplined for her absences from work, and ultimately was fired.

Smith then filed a lawsuit against Hope School, alleging that the school had interfered with her FMLA rights and had retaliated against her for requesting the leave. The lower court granted summary judgment in favor of the school, finding that Smith’s alteration of the provider’s certification invalidated the FMLA application, and that the school’s decision to terminate Smith’s employment for unexcused absences was appropriate in that circumstance. That decision was upheld on appeal by the Seventh Circuit.

FMLA leave may be denied to an employee who attempts to receive such leave fraudulently. The Smith decision is of note, however, because Smith actually had a valid basis for FMLA leave without the “plus previous depression” language. Therefore, the question reviewed and decided by the Seventh Circuit was whether an employer can deny FMLA leave to which an employee might otherwise be entitled because that person submitted false paperwork. According to the court, it can.

While this decision is one of which employers should be aware, employers also should be advised that the court emphasized the limited nature of the ruling, pointing out the “especially strong inference” that Smith had intentionally submitted false paperwork. The court specifically stated that it did not reach the question of whether more insignificant alterations, such as “correcting a typographical error or correcting or adding to a portion of the form with the knowledge and approval of a treating physician,” would result in a similar ruling. This comment by the court adds a level of difficulty for employers, who now will have to review such circumstances on a case-by-case basis to determine whether each circumstance includes the “especially strong inference” of falsity evident in Smith’s case.