Today, the Sixth Circuit reversed the dismissal of an ADA claim because the supervisor didn't want to deal with the employee's accommodation request. Now, procedurally, to get a case dismissed prior to trial, the court must assume the employee's testimony is true so who knows what the truth is. The facts according to the employee were that she worked at a Dollar General Store as a cashier. She suffered from degenerative osteoarthritis of her cervical and lumbar spine and other conditions. For some time her supervisors allowed her to use a stool to sit on when she worked but other employees complained that she was getting preferential treatment. Without the stool, the employee couldn't work and so she took medical leave. On return, she was not permitted to use a stool and was told she would be limited to 3 five minute breaks per 6 hour shift. She refused and promptly obtained a doctor's note saying she could return to work and that it would be "beneficial" to let her use the stool. The supervisor, she said, refused to look at the note. She left work and the employer fired her for job abandonment.
The abandonment claim came down to whether or not the employer refused her request for a reasonable accommodation. In a case that comes down to whether or not an employee was reasonably accommodated (or offered an accommodation), the cases specify that "When a party obstructs the process or otherwise fails to participate in good faith, ‘courts should attempt to isolate the cause of the breakdown and then assign responsibility.'" This standard derives from the EEOC's "interactive process" for resolving what kind of an accommodation would be reasonable and effective.
The employer lost - at the early dismissal stage - because it was responsible for the breakdown in the process. It wasn't just that the employer refused to let the employee use a stool, though that was a significant part of the employer's failing. It was that when the employee brought in a note saying she could work if she used a stool, the employer did nothing other than to reject that as an accommodation. Had the employer continued to work with the employee, the result might have been different. For example, the employer in this case argued it proposed a reasonable accommodation of letting her take several breaks. The employee apparently wanted "unlimited" breaks (the decision isn't clear on this). That would probably have not been a reasonable request but if the employer had sat down with the employee and tried to work out a specific break schedule - or even a process for giving her a few more breaks as needed upon a reasonable request to her supervisor - the result here would have been different.
So, employers should make sure the supervisors know that in "negotiating" an accommodation, it is crucial that they listen. They don't have to agree with the employee's request - just listen to it and say, we will consider it and get back to you as soon as possible. The employee cannot assume the worst and the ADA puts the employer in control by saying that if the employer proposes a reasonable accommodation, the employee doesn't get to reject it (as long as, of course, the accommodation is genuinely reasonable).
Thursday, September 11, 2008
Monday, September 8, 2008
How Not to Return a Veteran to Work after Military Leave
A few weeks ago, the Sixth Circuit handed the Metropolitan Nashville-Davidson County ("Nashville") a major defeat in a rather unusual case involving a soldier who returned from military leave.
The facts are important to understanding Nashville's argument but they are not simple to follow. Sergeant Petty worked as a Nashville police officer and member of the Army Reserve for years before being called to active duty in 2003. He ultimately transferred to Kuwait where he work in the supply stores. During an inspection, a still (he was from Tennessee, after all) was discovered and that ultimately led to Sergeant Petty with violating orders (against making or possessing alcohol) and conduct unbecoming an officer. In early 2005, asked to resign “for the good of the service,” and all charged against him were dropped and his discharge was characterized officially as “under honorable conditions (general)."
Petty asked to return to work on February 28, 2005, and Nashville began implementing its return to work process which is supposed to "ensure that every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having being absent from the Department." During this process, Petty admitted some (but not all) of the details surrounding his arrest and when he was returned to work, Nashville launched an investigation into whether he was truthful in his return to work processing but ultimately concluded the allegation was unfounded and closed the investigation.
It didn't end there because Nashville continued to examine the reasons for Petty's discharge, ultimately learning that he had resigned in lieu of court-martial and had not disclosed this on his return to work application. Petty was then assigned to answering phone calls from the public, which is considered demeaning work, apparently.
In holding Nashville violated Petty's return to work rights under USERRA, the Sixth Circuit focused narrowly on whether Petty had provided the relevant form even if he didn't provide all of the relevant form. The information Petty omitted was not required, the court reasoned, as the only criteria that mattered under the statute was whether or not Petty had been discharged from military service under "honorable conditions." Once that question was answered, nothing else mattered, the court said, and Nashville "was not permitted to delay or otherwise limit Petty’s reemployment rights in any way" including by requiring Petty to "comply with its return-to-work process." Nashville had no right to ensure that returning officers were qualified to return to work because Congress decided returning veterans rights took precedence over Nashville's policies (it is this point on which Nashville has asked the court to reconsider its decision). The only qualification an employer may examine is a physical one; qualifications based upon whether the veterans conduct during military service are not permitted short of examining whether the discharge was under honorable conditions.
Piling it on, Nashville, the court said, had no reason to conduct a second "investigation" because it was "spawned" by the first invalid refusal to permit Petty to return to work. Nashville's choice, the court intimated, was to reinstate and then determine whether or not Petty was qualified, discharging him if necessary and consistent with the other USERRA provisions that prohibit discrimination against employees for taking military leave.
The final blow was the court saying Nashville had discriminated against Petty by refusing to permit him to work "side" jobs because he was under investigation. That was a benefit to which Petty was entitled and the fact that Nashville was conducting an invalid investigation meant that its denial on that basis was also invalid.
Employees returning from military leave must be promptly (within 2 weeks at most) reinstated. Doubts about the employee's non-physical ability to meet the current job qualification requirements must be resolved as part of the normal work rule processes and may not delay reinstatement.
If upheld, the decision presents a stark lesson for employers and illustrates some of the thorny issues posed by USERRA. But for his military leave, Nashville would have been entirly justified in refusing to hire or rehire Petty because of his legal difficulties in Kuwait (or Kentucky, for that matter). So the fact that the legal difficulties occurred on military leave required, the court unmistakably held, Nashville to ignore them, even if they raised genuine concerns about the returning employee's dishonesty.
The facts are important to understanding Nashville's argument but they are not simple to follow. Sergeant Petty worked as a Nashville police officer and member of the Army Reserve for years before being called to active duty in 2003. He ultimately transferred to Kuwait where he work in the supply stores. During an inspection, a still (he was from Tennessee, after all) was discovered and that ultimately led to Sergeant Petty with violating orders (against making or possessing alcohol) and conduct unbecoming an officer. In early 2005, asked to resign “for the good of the service,” and all charged against him were dropped and his discharge was characterized officially as “under honorable conditions (general)."
Petty asked to return to work on February 28, 2005, and Nashville began implementing its return to work process which is supposed to "ensure that every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having being absent from the Department." During this process, Petty admitted some (but not all) of the details surrounding his arrest and when he was returned to work, Nashville launched an investigation into whether he was truthful in his return to work processing but ultimately concluded the allegation was unfounded and closed the investigation.
It didn't end there because Nashville continued to examine the reasons for Petty's discharge, ultimately learning that he had resigned in lieu of court-martial and had not disclosed this on his return to work application. Petty was then assigned to answering phone calls from the public, which is considered demeaning work, apparently.
In holding Nashville violated Petty's return to work rights under USERRA, the Sixth Circuit focused narrowly on whether Petty had provided the relevant form even if he didn't provide all of the relevant form. The information Petty omitted was not required, the court reasoned, as the only criteria that mattered under the statute was whether or not Petty had been discharged from military service under "honorable conditions." Once that question was answered, nothing else mattered, the court said, and Nashville "was not permitted to delay or otherwise limit Petty’s reemployment rights in any way" including by requiring Petty to "comply with its return-to-work process." Nashville had no right to ensure that returning officers were qualified to return to work because Congress decided returning veterans rights took precedence over Nashville's policies (it is this point on which Nashville has asked the court to reconsider its decision). The only qualification an employer may examine is a physical one; qualifications based upon whether the veterans conduct during military service are not permitted short of examining whether the discharge was under honorable conditions.
Piling it on, Nashville, the court said, had no reason to conduct a second "investigation" because it was "spawned" by the first invalid refusal to permit Petty to return to work. Nashville's choice, the court intimated, was to reinstate and then determine whether or not Petty was qualified, discharging him if necessary and consistent with the other USERRA provisions that prohibit discrimination against employees for taking military leave.
The final blow was the court saying Nashville had discriminated against Petty by refusing to permit him to work "side" jobs because he was under investigation. That was a benefit to which Petty was entitled and the fact that Nashville was conducting an invalid investigation meant that its denial on that basis was also invalid.
Employees returning from military leave must be promptly (within 2 weeks at most) reinstated. Doubts about the employee's non-physical ability to meet the current job qualification requirements must be resolved as part of the normal work rule processes and may not delay reinstatement.
If upheld, the decision presents a stark lesson for employers and illustrates some of the thorny issues posed by USERRA. But for his military leave, Nashville would have been entirly justified in refusing to hire or rehire Petty because of his legal difficulties in Kuwait (or Kentucky, for that matter). So the fact that the legal difficulties occurred on military leave required, the court unmistakably held, Nashville to ignore them, even if they raised genuine concerns about the returning employee's dishonesty.
Friday, September 5, 2008
Discipline for False Accusations of Harassment
Most sexual harassment policies include some kind of a warning about what could happen to an employee who makes a false accusation of harassment. The clause is not meant to discourage harassment claims but to ensure that employees do not use the potentially career-ending allegation of harassment as a way of exacting retribution for personal disputes.
A recent federal court of appeals decision from Missouri (which governs employers in the Midwest and north-Midwest states) helped clarify when employer may take action for falsely reporting harassment.
The male employee was the subject of a complaint by a female co-worker who reported that the male had gotten angry with her when they were discussing a policy matter. At the same time, the male reported to the HR department that the female had asked whether he had a girlfriend, made inappropriate sexual comments to him and that she had engaged in affectionate contact such as hugging or placing her head in his lap, He also said she had shown up one Sunday morning and asked to take him to church.
During the investigation, the female employee denied the allegations saying the male employee was pursuing her. She also produced a hand-drawn map the male had given her showing how she could get to his house. When confronted with this evidence, the male said: “I guess I was wrong for doing this.” The city ultimately fired him not only for making a false report but for his history of losing his temper on the job. A disciplinary board upheld the termination. The male employee sued claiming his termination was in retaliation for reporting the female employee's sexual advances.
Citing one of its prior decisions, the court of appeals explained why this case was one of the unusual situations where the court of appeals could hold as a matter of law the employer honestly believed the employee had made a false harassment complaint. The court of appeals contrasted the facts in this case with the situation that occurred in a 2005 case. Gilooly v. Mo. Dep’t of Health and Senior Servs., 421 F.3d 734 (8th Cir. 2005).
In Gilooly, the court had said a jury had to resolve whether the employer had retaliated against an employee who was terminated when the employer decided she had made a false harassment complaint. That decision, the latest decision explained, was made because the employer’s disbelief in the employee was founded solely on the statements of other employees and witnesses rather than on independently verifiable evidence or independent corroboration . . . from neutral non-parties. So, under this rule, "when an employer is presented with a 'he said, she said' set of facts involving two employees, and the employer chooses to disbelieve and discipline the employee who had engaged in protected opposition to unlawful activity, then the employee’s claim of retaliation must go to a jury."
What tipped the balance against sending the case to the jury was that the employer had "hard evidence" (the hand drawn map and the male's admission) that the male's complaint was false. It was also relevant that the independent review board upheld the employee's termination.
The holding in this case and the 2005 decision shows that it is probably a bad idea to impose discipline in any "he said, she said" situation. Rather, before an employer disciplines an employee for falsely reporting harassment, the employer is well-advised to have have compelling and independently verifiable evidence that the report is false.
A recent federal court of appeals decision from Missouri (which governs employers in the Midwest and north-Midwest states) helped clarify when employer may take action for falsely reporting harassment.
The male employee was the subject of a complaint by a female co-worker who reported that the male had gotten angry with her when they were discussing a policy matter. At the same time, the male reported to the HR department that the female had asked whether he had a girlfriend, made inappropriate sexual comments to him and that she had engaged in affectionate contact such as hugging or placing her head in his lap, He also said she had shown up one Sunday morning and asked to take him to church.
During the investigation, the female employee denied the allegations saying the male employee was pursuing her. She also produced a hand-drawn map the male had given her showing how she could get to his house. When confronted with this evidence, the male said: “I guess I was wrong for doing this.” The city ultimately fired him not only for making a false report but for his history of losing his temper on the job. A disciplinary board upheld the termination. The male employee sued claiming his termination was in retaliation for reporting the female employee's sexual advances.
Citing one of its prior decisions, the court of appeals explained why this case was one of the unusual situations where the court of appeals could hold as a matter of law the employer honestly believed the employee had made a false harassment complaint. The court of appeals contrasted the facts in this case with the situation that occurred in a 2005 case. Gilooly v. Mo. Dep’t of Health and Senior Servs., 421 F.3d 734 (8th Cir. 2005).
In Gilooly, the court had said a jury had to resolve whether the employer had retaliated against an employee who was terminated when the employer decided she had made a false harassment complaint. That decision, the latest decision explained, was made because the employer’s disbelief in the employee was founded solely on the statements of other employees and witnesses rather than on independently verifiable evidence or independent corroboration . . . from neutral non-parties. So, under this rule, "when an employer is presented with a 'he said, she said' set of facts involving two employees, and the employer chooses to disbelieve and discipline the employee who had engaged in protected opposition to unlawful activity, then the employee’s claim of retaliation must go to a jury."
What tipped the balance against sending the case to the jury was that the employer had "hard evidence" (the hand drawn map and the male's admission) that the male's complaint was false. It was also relevant that the independent review board upheld the employee's termination.
The holding in this case and the 2005 decision shows that it is probably a bad idea to impose discipline in any "he said, she said" situation. Rather, before an employer disciplines an employee for falsely reporting harassment, the employer is well-advised to have have compelling and independently verifiable evidence that the report is false.
EEOC issues Guidance on Performance and Conduct Standards under the ADA
Yesterday (September 3, 2008), the EEOC issued guidance for employers on when an individual with a disability can be held to performance standards and conduct requirements. The EEOC seemed to express incredulity that employers needed the guidance, saying it receives "numerous questions" on the topic.
As has become traditional for federal agencies that regulate employment, the guidance is in a question and answer format (30 questions in all) and it gives several examples.
The one question I held my breath about was "If an employee’s disability causes violation of a conduct rule, may the employer discipline the individual?" I'm not sure why I expected the EEOC to complicate the answer to this question but the answer (Yes, as long as the "conduct rule is job-related and consistent with business necessity") relieved me.
Other topics included what an employer should do when an employee asserts that a disability caused the conduct for which the employee is about to be disciplined ("the employer may still discipline the employee for the misconduct" but should engage in the "interactive process" to determine whether a reasonable accommodation could "address the problem").
Other topics covered are when an employer may have to modify attendance requirements (time off or adjusting start or end times for work), dealing with alcohol or drug use, and imposition of a dress code.
One interesting topic, at least for Tennessee employers, is that the EEOC states that "Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration." The Sixth Circuit has not provided employers with very clear guidance on this point.
Dicta in Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 784 (6th Cir. 1998), complicates the issue. What the court actually held was that there is no "presumption" that uninterrupted attendance is an essential function of every job and that an employer may be required, as a reasonable accommodation, to grant a medial leave. Citing a district court decision, the court of appeal stated that there is no “per se rule that an unpaid leave of indefinite duration (or a very lengthy period, such as one year) could never constitute a ‘reasonable accommodation’ under the ADA.” Cehrs, 155 F.3d at 782.
On the other hand, the Sixth Circuit has also held that the duty to reasonably accommodate does not require the employer to wait indefinitely for an employee's medical condition to be corrected. Gantt v. Wilson Sporting Goods Co. , 143 F.3d 1042, 1047 (6th Cir. 1998). Nor are employers under a duty to keep employees on unpaid leave indefinitely until a position opens up. Rather, if an employer knows that a position for which the disabled applicant is qualified will become vacant in a short period of time, the employer may be required to offer the position to the employee. See 29 C.F.R. pt. 1630 app. at 407-08. Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1187 (6th Cir. 1996).
So, I'll say it again. When faced with a situation where a medical leave seems to be turning into an indefinite period of time, employers should exercise caution and are well advised to consult with qualfied counsel for specific guidance.
As has become traditional for federal agencies that regulate employment, the guidance is in a question and answer format (30 questions in all) and it gives several examples.
The one question I held my breath about was "If an employee’s disability causes violation of a conduct rule, may the employer discipline the individual?" I'm not sure why I expected the EEOC to complicate the answer to this question but the answer (Yes, as long as the "conduct rule is job-related and consistent with business necessity") relieved me.
Other topics included what an employer should do when an employee asserts that a disability caused the conduct for which the employee is about to be disciplined ("the employer may still discipline the employee for the misconduct" but should engage in the "interactive process" to determine whether a reasonable accommodation could "address the problem").
Other topics covered are when an employer may have to modify attendance requirements (time off or adjusting start or end times for work), dealing with alcohol or drug use, and imposition of a dress code.
One interesting topic, at least for Tennessee employers, is that the EEOC states that "Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration." The Sixth Circuit has not provided employers with very clear guidance on this point.
Dicta in Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 784 (6th Cir. 1998), complicates the issue. What the court actually held was that there is no "presumption" that uninterrupted attendance is an essential function of every job and that an employer may be required, as a reasonable accommodation, to grant a medial leave. Citing a district court decision, the court of appeal stated that there is no “per se rule that an unpaid leave of indefinite duration (or a very lengthy period, such as one year) could never constitute a ‘reasonable accommodation’ under the ADA.” Cehrs, 155 F.3d at 782.
On the other hand, the Sixth Circuit has also held that the duty to reasonably accommodate does not require the employer to wait indefinitely for an employee's medical condition to be corrected. Gantt v. Wilson Sporting Goods Co. , 143 F.3d 1042, 1047 (6th Cir. 1998). Nor are employers under a duty to keep employees on unpaid leave indefinitely until a position opens up. Rather, if an employer knows that a position for which the disabled applicant is qualified will become vacant in a short period of time, the employer may be required to offer the position to the employee. See 29 C.F.R. pt. 1630 app. at 407-08. Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1187 (6th Cir. 1996).
So, I'll say it again. When faced with a situation where a medical leave seems to be turning into an indefinite period of time, employers should exercise caution and are well advised to consult with qualfied counsel for specific guidance.
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