Sixth Circuit Upholds FedEx Reorganization Decision

Linda Epps worked for FedEx in Memphis as an IT Manager, managing one project called the Managed Resource Services Office or MRSO. In 2006, FedEx brought in another manager (named Black) who carried four projects and one initiative. Not much later, Werner (to whom Black and Epps reported) decided to eliminate Epp's IT Manager position and transfer the MRSO duties to Black.  Epps trained Black on those duties.  FedEx gave Epps the opportunity to locate a new management position but after she was unable to do so, she took a demotion which required her to report to Black and reduced (gradually over an 18 month period) her salary.  Epps later sued for race discrimination.

What seems most helpful about the unpublished decision is how the court analyzed FedEx's reasons for the reduction/demotion.  The question, of course, was why select Black instead of Epps to be the IT Manager.

Assigning the consolidated duties to Black required Black to learn one new project: MRSO. In contrast, had the consolidated job been assigned to Epps, she would have been required to learn four new projects and one initiative. Based on the number of direct reports managed by Epps and Black prior to the demotion, it is likely that MRSO was a larger project than any one of the projects on which Black was working. However, it appears that Black had the larger sum total of management responsibilities, and her work covered a greater number of discrete areas. Therefore, FedEx has provided a legitimate, nondiscriminatory explanation that it was more efficient to assign the MRSO project to Black than to move all of Black’s projects to Epps.

Further, Black had a longer tenure with FedEx, had more experience reporting to senior level management, and had won two of the company’s five-star awards for excellent work. Although Epps had a consistently positive work history with FedEx and had earned a promotion to management, her most recent year-end evaluation had identified several areas in which improvement was needed. Werner stated that he was focused on efficiency—not prior job performance—in choosing who should take on the consolidated duties. However, he mentioned his awareness of Black’s strong track record with the company, and that history further supports the business decision to select Black over Epps for the remaining management position.

In making difficult decisions to select employees for a reduction in force, employers are smart if they can explain the reasons for the decision in the manner recounted above.  The temptation, as I bemoaned before, is to try to objectify or quantify what is really a subjective analysis.  While not illegal, I feel it is better to be able to explain the decision in words, as FedEx did, rather than by assigning numbers to subjective factors. 

Epps tried to argue her selection was pretextual because she had gotten her first negative evaluation just after her demotion.  The court's response to this argument is a good lesson for all employers because even Epp's prior evaluations, while overall positive, "indicated several areas in which" Epps supervisor "expected improvement, clearly signaling the potential for a future negative review."  Again, wise employers will address performance problems as they arise, and then document them as areas for improvement on performance evaluations, even if the issues do not themselves merit a lower overall rating.

Documenting Poor Performance

It's a recurring theme, one I have addressed before, but it can't be stressed enough how helpful it is in defending employment litigation to have adequate documentation of poor performance.

In an unpublished decision issued today, the Sixth Circuit affirmed summary judgment for ServiceMaster in an age and disability lawsuit because the employee's new manager properly documented her dissatisfaction with the employee. 

The court rejected the employee's ("Webb") several attempts to establish that he was meeting the employer's legitimate qualifications for the job, explaining:

Webb does not offer probative evidence that he was qualified. First, Webb relies on positive performance reviews from prior years to establish his qualifications at the time of termination.  On facts closely resembling this case, this court in Strickland expressly rejected such use of prior year-end performance reviews because they suffered from “staleness” and did not establish that a plaintiff was “qualified at the time of her termination.”  Strickland, 45 F. App’x at 424. As in Strickland, this evidence is stale because Webb’s performance or ServiceMaster’s expectations may have legitimately changed since the prior review period. Second, Webb offered emails in which coworkers requested Webb’s assistance on a project, which Webb believes show that his work was adequate and, therefore, met ServiceMaster’s expectations.  The opinion of Webb’s coworkers is irrelevant: under both the ADEA and THRA the relevant test is the legitimate expectations of an employer, not a coworker. See Strickland, 45 F. App’x at 424. Even if the court were to consider these emails, they do not create a genuine issue of material fact: no reasonable jury could find that one routine request for assistance demonstrates that Webb was meeting the legitimate expectations of his employer. For these reasons, Webb has provided no evidence that he was meeting his employer’s legitimate expectations at the time of his termination and, therefore, has not established either his age or disability discrimination claims.

What did the employer do right?  The court explained that Webb's new manager, "had concerns about Webb’s productivity, began supervising him directly and found his work unacceptable or incomprehensible, gave Webb a negative midyear performance review, placed him on a [performance improvement plan] during which Webb failed to improve, and ultimately recommended Webb’s termination for unsatisfactory performance and a failure to perform “at the manager level.”

There was, of course, no evidence of disparate treatment.

Similarly Situated Evidence - Employers Must Consider Differences

The court of appeals in Chicago recently issued an instructive decision on comparing similarly situated employees.  The fired employee worked for the Indiana Department of Corrections and repeatedly refused a job assignment to the point that the DOC fired her.  She sued under the ADA alleging the firing was a pretext for getting rid of her because she had back problems (which was one reason she refused the job assignment).

The court of appeals initially addressed whether the employee was similarly situated to two other employees who had also refused (to some degree) a job assignment.   This aspect of the decision can be summed up by saying that employers shouldn't try to split too fine a hair in making employee comparisons.

The more important point, it seems to me, is that employers should consider all factors that distinguish an employee from co-workers when deciding on the level of discipline for an employee.  Here, when the lawsuit got to litigation, the employer argued that the fired employee was not similarly situated to other employees who were not fired because the fired employee had a worse disciplinary history.   Of course, an employee's disciplinary history is a perfectly valid consideration in imposing discipline. 

The problem for the employer was that (as the court said): "not only does the evidence fail to indicate that disciplinary history was considered, but the record makes clear that disciplinary history played no role in DOC’s decision to terminate . . . employment."  It explained:

A characteristic that distinguishes two employees, regardless of its significance when objectively considered, does not render the employees non-comparable if the employer never considered that characteristic. The purpose of the similarly situated requirement is to provide a basis for a judgment about the fairness of the employer’s decision.  Factors never considered by the employer cannot provide any insight as to whether the employer’s decision was motivated by discriminatory intent.

The problem here was that the employer's evidence established that disciplinary history was not a consideration at the time.

So, in considering discipline for misconduct, it will help to make sure your documentation demonstrates you took into account all the differences between employees.  While this should be documented (so as to avoid the argument that the evidence was manufactured after the fact), it is at least as important to consider all the reasons for distinguishing employees.  At a minimum, the decision-makers need to be able to convincingly testify that they considered the factors which distinguished the fired employee from employees who were not fired.

Sixth Circuit: Tennessee Employers May Require Prompt Reporting of Compensable Injuries

Julie Geronimo worked for Caterpillar in Dyersburg until she was terminated for failure to promptly report a work injury.  Geronimo worked as a machinist and then an assembler.  Not long after starting the assembler work, Geronimio began to experience pain.  Her job required her to press down clutch plates on an assembly line and from the start, Geronimo experienced "muscle strain" in her palms, upper arms, and fingers.  The pain continued and, after four weeks on the job, it increased, causing her hands to go numb and tingle when performing manual tasks even outside of work.

Geronimo said nothing to Caterpillar about the pain for some 35 days.  She then spoke to the company nurse, telling the nurse she may have to have surgery.  Geronimo had not consulted a physician.  Rather, as she told the nurse, she had read about her condition on the internet a week earlier.  By the time Geronimo spoke to the nurse,  she was characterizing her pain levels as almost unbearable.  The day after seeing the nurse, Caterpillar fired Geronimo because of her "failure to communicate an injury in a timely manner."

Caterpillar's safety rules require employees to report the occurrence of injuries immediately or, if the injury was gradually-occurring, to report it as soon as an employee realizes they are injured and suspects it is work related.   Geronimo admitted she knew the policy.  She decided not to report the pain, she said, because she thought she would lose her job.

Geronimo filed a lawsuit alleging Caterpillar's reporting requirements, specifically, her termination for failing to follow the reporting requirements, violated Tennessee's workers' compensation law.  Her argument was that the workers' compensation law permits employees to obtain compensation if the employee reports an injury within 30 days and Caterpillar's immediate reporting requirement contravened the statutory reporting provisions.  

The Sixth Circuit didn't buy it, holding that even though the statute gives her thirty days in which to report a gradually-occurring injury if she wants to obtain workers’ compensation benefits, the statute also provides that an injury "shall" be reported immediately.  Tenn. Code Ann. § 50-6-201(a).  Thus, the court held, an employer's policy requiring prompt reporting of injuries is not inconsistent with the workers' compensation law.

Caterpillar imposed the reporting rule, it explained, because the "late reporting of injuries can result in otherwise avoidable aggravation of those injuries, whereas timely reporting will allow the problems to be addressed before they become severe and may also help to prevent other employees from becoming similarly injured."  

The court agreed with this policy, characterizing Geronimo's argument as giving:

employees the opportunity to aggravate existing work injuries, potentially compromise the safety of other individuals, and prevent their employers from providing possible remedies for gradually-occurring injuries at the earliest possible date, by choosing not to report their injuries for days, or even weeks, after the employee realizes she has been injured. Moreover, although the  statute grants an employee a maximum of thirty days in which to report the injury and still obtain workers’ compensation, the language itself not only mandates immediate reporting by all employees, but provides incentive to do so by refusing to allow payment of physician’s fees or compensation for the period of time between when the injury occurred and when the employee provided notice of the injury. See Tenn. Code Ann. § 50-6-201(a).

Tennessee employers thinking about adopting Caterpillar's injury reporting policy should be aware that the facts of this case are rather unique and it will (or should) be rarely used to fire an employee.  Geronimo made a crucial mistake in admitting to the nurse that she knew she had injured herself before she reported it.  Most employees won't make that mistake, at least not after the employer fires an employee for violating the timely reporting requirement. In addition, employers must enforce a reporting policy evenhandedly.   There was no allegation of disparate treatment in this case.  Nor was there any evidence that Caterpillar used the reporting requirement to rid itself of employees who sustained compensable injuries, or that it fired employees before they could claim a compensable injury.  Evenhanded enforcement will also help to avoid any potential FMLA or ADA concerns.  

It can't be emphasized enough that employers who have a policy of this nature should do everything possible to avoid firing employees who timely report injuries.  Had Geronimo, for example, presented evidence that employees who timely reported injuries did, in fact, lose their jobs (as she believed) the outcome might have been different.

Of course, Caterpillar's goal was to head off gradual (or soft) injuries before they necessitate significant or costly corrective action.  That is laudable from several aspects and one or two firings for violating the policy should serve to emphasize that the employer is serious about employee safety.

Sixth Circuit Holds Volunteer Firefighters Can Be "Employees" for Title VII Coverage

A published decision from the Sixth Circuit today held that volunteer firefighters may be counted as "employees" for purposes of determining whether the "employer" has enough employees for Title VII coverage.

Title VII only applies to employers of 15 or more employees.  How to count 15 employees is somewhat complex and has required the Supreme Court to set in and resolve the issue on at least one occasion.   The statute requires counting the number of “employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . .” 42 U.S.C. § 2000e(b).

In this case, the employer only had 4 "employees" and without counting the volunteer firefighters, there would be not be enough employees to permit the employee to sue for sexual harassment under Title VII.

The EEOC position on whether to count volunteers is that "an individual may be considered an employee of a particular entity if . . . [she] receives benefits such as a pension, group life insurance, workers'  compensation, and access to professional certification . . . .”  EEOC Compliance Manual.  The benefits must, the EEOC states, constitute "significant remuneration" rather than merely the "inconsequential incidents of an otherwise gratuitous relationship."

Where the Sixth Circuit parted company with the district court and to some degree the EEOC (which had previously ruled in favor of coverage) was in how to consider the remuneration factor.  The Sixth Circuit concluded the district court, by holding there had to be "significant remuneration" put too much emphasis on the remuneration factor to the exclusion of other considerations.  To the court the question is whether there is "remuneration" not "significant remuneration" and to illustrate the point, noted that the volunteer firefighters:

received worker’s compensation coverage, insurance coverage, gift cards, personal use of the Department’s facilities and assets, training, and access to an emergency fund . . . and that, for particular portions of the relevant time period, certain firefighter-members received a one-time, lump-sum retirement payment4 and others received an hourly wage. The district court, however, limited its analysis to remuneration without considering any other aspects of the Department’s relationship with its firefighter-members. Although remuneration is a factor to be considered, it must be weighed with all other incidents of the relationship.

Tennessee Appeals Court Addresses Similarly Situated Standards

Sharon Hartman worked for Tennessee Tech for about 13 years as a Stock Clerk.  Her job was to purchase supplies and equipment, which required her to be intimately familiar with Tech's purchasing policies.  Tech fired Ms. Hartman after she made unauthorized purchases which exceeded the monetary limits of her authority.  The mistake was inadvertent but had Hartman followed the purchasing policies it would not have occurred.

In Ms. Hartman's sex discrimination claim under the Tennessee Human Rights Act, she argued she was similarly situated to a male named Parks who was plumbing shop supervisor.  Unlike Hartman, Parks was not charged with being familiar with Tech's purchasing policies.  On one ocassion, Parks ordered plumbing supplies which exceeded the same monetary limits.  Unlike Hartman, however, when Parks learned the supplies were over the limit, he rejected the order and went through the appropriate procedures for the purchase.

The court of appeals rejected Hartman's argument that she and Parks were similarly situated, explaining:

The duties and responsibilities listed on Ms. Hartman’s official job description include: “Maintains warehouse stock item inventory. Solicits, evaluates and awards bids; and orders warehouse stock items,” “Initiates bid process for warehouse stock items,” “Makes contract award recommendations to Purchasing [Office] regarding warehouse inventory stock items,” “Secures additional specification recommendations to Purchasing regarding warehouse inventory stock items.”

Troy Parks’s official job description, by contrast, does not contain a single reference to the purchasing guidelines or the bidding process. According to Ms. Hartman, Mr. Parks was required to work with a Buyer from the Purchasing Office, or someone with equivalent purchasing authority in order to make purchases. The affidavit of Dr. Michael Nivens, the director of Facilities and Business Services, states that “Troy Parks does not have the same kind of purchasing authority as [Ms. Hartman.] [Ms. Hartman] was a purchaser. Mr. Parks is not, and he is not expected to have the same level of knowledge regarding the purchasing policies.” The affidavit of Dr. Claire Stinson, the Vice-President for Finance and Planning, states, “[Troy Parks] is not expected to be familiar with the purchasing guidelines. It was a job requirement that [Ms. Hartman] be familiar with the purchasing guidelines.”

Ms. Hartman does not dispute these facts. Instead she contends the court should not consider the differing levels of responsibility and authority when evaluating whether she is similarly situated to Troy Parks. In essence, she asserts that the only relevant similarity in this case is the fact that both she and Mr. Parks were subject to the same purchasing rules and that they both violated those rules. We find no merit in this argument. It was a job requirement for Ms. Hartman to know and understand the purchasing policies because she had significant discretion in carrying out purchases using public funds. Mr. Parks on the other hand, required supervision when carrying out purchases, often times supervision by Ms. Hartman. He did not fail to fulfill an essential job requirement when he violated the purchasing policy.

          * * *

Moreover, Ms. Hartman’s conduct was different from Mr. Parks’s. Troy Parks voluntarily informed his supervisors about his order before the University was required to pay the supplier. By contrast, Ms. Hartman’s supervisors approached her after the first invoice arrived on the filters, which were custom made and non-refundable. Even at that time, she did not inform her supervisors that the order was not complete, and that a second invoice would be arriving. Ms. Hartman argues that the effects of her actions vis á vis those of Mr. Parks are irrelevant, because the fact remains that they both violated the same rule. Again, we disagree. It is significant that Mr. Parks voluntarily notified his supervisors at a time when the damage could be limited.

The decision is significant because it recognized that job responsibilities as well as differences in conduct may establish that two employees are not similarly situated. 

Sixth Circuit Holds Employee Did Not Agree to Arbitration When Handbook Simply Referred to Dispute Resolution Procedure

Bickford Senior Living Group fired Maureen Hergenreder, a nurse, in early January 2007 and she filed a lawsuit alleging her firing violated the Americans with Disabilities Act.  Bickford moved to compel arbitration.  None of the documents Hergenreder signed when she started employment (only a few months before she was fired) mentioned arbitration.  Bickford's employee handbook, as is typical, said it was not a contract of employment, but that it was a summary of policies and procedures that apply to employment.

The handbook made no mention of "arbitration" as such.  Instead, it stated: “Dispute Resolution Process Please refer to the Eby Companies Dispute Resolution Procedure (DRP) for details.”  The Dispute Resolution Procedure, of course, required employees to submit all disputes to arbitration.  While Hergenreder acknowledged receipt of the employee handbook, she submitted an affidavit in which she stated she had "never seen or signed" for the Dispute Resolution Procedure.  Bickford did not produce any acknowledgment form signed by Hergenreder for the Dispute Resolution Procedure.  Instead, it provided an affidavit from its Vice President of Employee Relations, Jerry Knight, who states that the DRP “is distributed to employees.”

Absent evidence that Hergenreder had actual knowledge of the arbitration clause or at least was advised of the significance of the Dispute Resolution Procedure, the Sixth Circuit held Hergenreder could not be compelled to submit her ADA claim to arbitration (emphasis added):

There was neither an offer nor an acceptance. The objective signs that Bickford made Hergenreder an offer to be part of the arbitration agreement are few in number. The best Bickford can say is that Hergenreder was informed that, for “Employee Actions,” she should “refer” to the DRP. In Bickford’s view, Hergenreder “was or should have been aware of the DRP and so is bound by it.” Bickford Br. at 13 (capitalization removed). Yet she was not required to refer to the DRP; the “handbook does not constitute any contractual obligation on [Hergenreder’s] part nor on the part of Bickford Cottage[.]” Hergenreder Br. at Ex. 6 (Receipt of Employee Handbook Form). Moreover, the simple reference in the Handbook to “the Eby Companies Dispute Resolution Procedure” for “details” is not “the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Kloian, 733 N.W.2d at 770 (internal quotation marks omitted). This statement says nothing about arbitration, and it says nothing that would indicate to Hergenreder that accepting or continuing her job with Bickford would constitute acceptance. Indeed, it is incorrect to conflate the fact that Hergenreder knew generally of the DRP with the notion that she knew of the arbitration language—and Bickford’s desire to create an arbitration agreement—contained within the DRP. Were Hergenreder required to read, or even notified of the importance of reading, the DRP, the analysis here might be different. But this court’s inquiry is focused on whether there is an objective manifestation of intent by Bickford to enter into an agreement with (and invite acceptance by) Hergenreder, and we are not convinced that there is any such manifestation made by Bickford in the record in this case.

It turns out the holding is relatively narrow.  If the employee handbook or any other document the employee signs does not expressly require arbitration of employment disputes, then the document must at least emphasize the "importance of reading" the document that contains the arbitration clause.  The decision serves as a good reminder that the best course for employers is to have the employee sign a document consenting to arbitrate all employment disputes.  While the Sixth Circuit may require less than this, there's no reason to beat about the bush on something like this.

In fact, I'm having a hard time understanding why the employer didn't mention the arbitration clause here.  Perhaps it was just a clerical oversight.  In any event, employers are generally free to draft policies and procedures how they want.  In drafting employment contracts, policies and even benefit plans, I often advise clients to "take the easy road" and include language that will avoid a dispute if at all possible.  It is relatively easy to add a sentence to a policy when drafting a document especially if it might avoid costly litigation.

Sixth Circuit Addresses "Associational Discrimination" Under the ADA

A little used provision in the ADA prohibits "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 12112(b)(4).  Under this provision, the EEOC has explained,

an employer may not treat a worker less favorably based on stereotypical assumptions about the worker’s ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability. For example, an employer may not refuse to hire a job applicant whose wife has a disability because the employer assumes that the applicant would have to use frequent leave and arrive late due to his responsibility to care for his wife.  

The Sixth Circuit appeal involved an employee, Stansberry, who managed the employer's, Air Wisconsin, operations at the Kalamazoo Michigan Airport from 1999 until he was fired on July 26, 2007.  In the mid-1990s Stansberry’s wife developed Polyarteritis Nodosa, a very rare and debilitating autoimmune disorder. The treatment for this condition "involves medications to suppress the immune system, including prednisone and cyclophosphamide."  It is expensive.  Costing Air Wisconsin's insurer some $4,000 every six weeks.

At some point in 2007, Air Wisconsin increased it operations in Kalamazoo, growing from eleven employees to twenty-five. Stansberry was responsible for ensuring all employees properly carried out their jobs and there were several significant problems with the new hires. Between February and May 2007, six different employees received a total of nine security violation letters from the Kalamazoo airport director. Stansberry failed to notify Air Wisconsin’s corporate headquarters about the violations, they learned about the violation only when the Transportation Security Administration sent a letter of investigation to Air Wisconsin’s headquarters.

Stansberry, already had issues with his boss, Mulder.  When Mulder reviewed the security violations, he let the TSA know he would be taking "severe disciplinary action" against Stansberry.  Air Wisconsin asserts that it terminated Stansberry for poor performance based on his failure to stay within budget, failure to report security violations, and improper supervision of employees, which led to the security violations in the first place. The prepared termination letter Mulder brought with him to the meeting, however, simply mentioned the security violations.

Relying on a Seventh Circuit decision, Larimer v. Int’l Bus. Machs. Corp., 370 F.3d 698, 700 (7th Cir. 2004), the Sixth Circuit decision summarized the types of theories under which an associational discrimination claim could be brought:

Several circuits, including this Court in an unpublished opinion, have relied on Larimer’s outline of three theories into which “association discrimination” plaintiffs generally fall: (1) “expense”; (2) “disability by association”; and (3) “distraction.” The “expense” theory covers situations where an employee suffers an adverse employment action because of his or her association with a disabled individual covered under the employer’s health plan, which is costly to the employer. The “disability by association” theory encompasses two related situations. Either the employer fears that the employee may contract the disability of the person he or she is associated with (for example the employee’s partner is infected with HIV and the employer fears the employee may become infected), or the employee is genetically predisposed to develop a disability that his or her relatives have. The “distraction” theory is based on the employee’s being somewhat inattentive at work because of the disability of someone with whom he or she is associated. Id. at 700.

Stansberry relied only on a “distraction” theory.  Stansberry, who lacked direct evidence, argued that the court should infer discrimination because he was discharged shortly after his wife's condition worsened.  The court rejected the argument:

although her condition grew worse immediately before Stansberry was terminated, Air Wisconsin had been aware of her illness for many years. Because Air Wisconsin knew of her disability for a long period of time, this undercuts the inference that Stansberry’s termination was based on unfounded fears that his wife’s disability might cause him to be inattentive at work.

While the court held Stansberry couldn't establish a prima facie case, it also held he could not show his discharge was because of his association with his wife:

Importantly, while Stansberry’s poor performance at work was likely due to his wife’s illness, that is irrelevant under this provision of the Act. Stansberry was not entitled to a reasonable accommodation on account of his wife’s disability. Cf., e.g., Larimer, 370 F.3d at 700. Therefore, because his discharge was based on actually performing his job unsatisfactorily, and not fears that his wife’s disability might prevent him from performing adequately, Air Wisconsin’s conduct is not prohibited by this section of the Act.

There is an important caveat to the decision.  While the ADA does not require an accommodation in these circumstances, the FMLA (which may not have applied to Stansberry) might require time off from work.  

The EEOC also points out that "an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability."   It gives two examples:

Example J:  Kyung, an employee at an accounting firm, requests a week of unpaid leave and is told by her supervisor that there will be no difficulty in granting the leave.  Kyung then mentions that she will be using the leave to care for her mother with a disability, who is coming into town for medical treatments.  The supervisor denies the leave request, telling Kyung that the firm's leave policy is not intended to cover this type of situation and that she should hire someone to look after her mother.  A few days later, the supervisor approves Diego's request for a week of unpaid leave to attend a father-son camp with his son.  If the firm grants requests for unpaid leave for certain personal or family reasons, it is a violation of the ADA's association provision to deny Kyung's request because she wishes to use the time to assist her mother with a disability.  

Example K:  A law firm permits its attorneys to use 100 hours of administrative leave a year to provide pro bono legal services.  One attorney, Sylvia, wants to use these hours to work with a non-profit organization that provides legal and other services to individuals with psychiatric disabilities.  The law firm denies her request because it does not believe that this type of work will reflect well on its image.  If the firm allows attorneys to use administrative leave to provide pro bono legal services, it is a violation of the association provision of the ADA to deny Sylvia's request because she wishes to use the time to assist individuals with disabilities.

DOL Wage and Hour Division Looking to Hire 6 New Investigators for Tennessee

I like to follow local (Knoxville for me) openings for federal employees.  It is not tempting personally but I do a lot of business with the federal government and it is a good barometer of hiring activity. 

I was intrigued by the fact that the U.S. Department of Labor today announced openings for six new Wage and Hour investigators working out of Nashville, Memphis and Knoxville (here is a link to all six openings).  The position vacancy posting encouraged applicants (who pretty much must be federal employees already) to "Begin a challenging career with the U.S. Department of Labor (DOL), and you will help shape the workforce of tomorrow." I thought Tennessee employers might benefit from seeing the minimum objective qualifications required for the position.

The job duties are described:

The incumbent conducts complete investigations and negotiations involving routine issues and situations to obtain the compliance of business enterprises and State and local governments with the provisions of Federal labor laws, regulations, and orders pertaining to minimum wage rates, overtime pay requirements, child labor provisions, wage garnishments, employment eligibility, domestic service in households, and similar matters pertaining to conditions of employment, wages, and hours worked.  Develops information required to resolve issues in cases requiring a full investigation through: interviews with employers and workers; analysis of pertinent business records; and review of laws enforced by the Wage and Hour Division, related interpretive bulletins, and precedents to identify specific provisions that are applicable to the case peculiarities. Conducts negotiations with the firm owner or manager, attorney, or other firm representative at the appropriate authority level to: (1) advise the employer that there is a violation of the law; (2) fully explain requirements needed to achieve and maintenance compliance; (3) persuade the employer to accept computed back wages found due to employees; and (4) obtain agreement to pay the back wages due employees involved within prescribed monetary limitations.  Prepares case reports, including recommendations for closing the case or any further administrative actions that should be taken.  The above duties are developmental assignments, and as the incumbent progresses, the assignments will become more difficult and complex, leading to progression ultimately to the full performance level of GS-12.

 The qualifications (forgetting the ones unique to being a federal employee) are:

1. General knowledge of Federal wage and hour labor laws, industrial occupations, wage scales, employment practices, or salary and wage administration practices.
2. Skill in analyzing written/verbal information and numerical data and making decisions on issues based on interview, records review, reconstruction of missing or fraudulent records and applying legal or regulatory provisions, precedents, and principles to specific investigative matters.
3. Skill in personal contacts requiring the ability to explain requirements or rights and obtain information and cooperation from people with diverse backgrounds and levels of understanding, reconcile conflicting interests, and persuade others to comply voluntarily with requirements.
In addition to the criteria specified above, applicants must have knowledge of and ability to apply the provisions of Federal wage and hour labor laws pertaining to wages, hours of work, or related conditions of employment.  Examples of qualifying specialized experience include:   
Developing, interpreting, or applying policies, procedures, and operating standards in determining compliance for an organization or government based program.  Conducting interviews and providing information about laws and/or regulations.  Industrial personnel or salary and wage administration or responsible work in a certified public accounting firm.  Analyzing or apply labor legislation.  Reviewing and evaluating operations and procedures through analysis, audits, or surveillance inspections.  Federal, State, or self-regulatory agency work involving obtaining compliance with appropriate program requirements.

I have almost always gotten along with the DOL investigators with whom I have dealt.  I don't necessarily agree with them all but that is the nature of the business anyway.  Here is hoping the new hires are well-qualified for the job.

Governor Signs Bills Restoring Summary Judgment to Employment Discrimination Claims in Tennessee

The Governor has now signed both bills passed by the General Assembly designed to restore summary judgment standards in Tennessee.

The General Assembly's website indicates that on June 10, 2011, the Governor signed HB 1641, which, as I explained in a prior post, codifies the McDonnell Douglas / Burdine analysis at all stages of the proceedings, including, on a motion for summary judgment.  While the Act takes effect as of June 10, 2011, it also provides that it applies “to all causes of action accruing on or after such effective date.” Thus, employment decisions made after this date, will have summary judgment decisions adjudicated using the McDonnell Douglas / Burdine analysis.

My prior post mentioned another bill. This one is not directed at employment discrimination claims but applies to all civil claims. It legislatively overrules Tennessee Supreme Court decisions that made it much more difficult (if not impossible) to obtain summary judgment.  The governor signed this bill on June 16, 2011.  The summary judgment bill, by the way, would not take effect until July 1, 2011, and states that it only applies to “actions filed on or after that date."

These bills will certainly be good news to employers who have been sued for discrimination or retaliation in state court where the evidence of discrimination or retaliation is weak or non-existent.   Prudent employers shouldn't take the passage of these bills as a "get out of jail free" card.  Courts will still have the responsibility to deny summary judgment when the material facts are disputed.  As I have said several times on this blog, the dumbest thing employers can do is run their mouths.  Loose lips are a sure fire way to be forced to defend an employment decision before a jury.

U.S. Supreme Court Reverses Wal-Mart Class Certification

The largest class action ever certified in a discrimination claim is history.  The decision is interesting if you like issues that arise under the federal rules of civil procedure class action but that makes it pretty wonkish from the employer's point of view.  At first read, the Court's decision (it was unanimous in part) will spell doom for large employment based class actions where the evidence does not present a policy or practice of intentional discrimination or a practice that unintentionally causes a disparate impact.

What really hurt the employees trying to get their claims certified was that they took inconsistent positions in trying to establish that their claims of discrimination had an important point in common.  They claimed Wal-Mart had a policy of providing store management with unchecked discretion.  The Court didn't buy it, saying the employees failed to identify "a common mode of exercising discretion that pervades the entire company:"

we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decision making [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” Id., at 990–991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact—such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U. S. 424, 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sex-based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.

The decision reduces the risk that an employer will have a class action filed against it alleging all of its decisions are discriminatory.  This decision will require a pretty good showing that the discrimination claims have facts or decision making in common.  As I said earlier, employers that have discriminatory policies or who permit neutral practices to have a discriminatory effect are still at risk. 

Eighth Circuit Remands Dismissal of Retaliation Claim Where Employer Refused to Consult Lawyer

Today, the Eighth Circuit upheld the dismissal of a racial hostile work environment claim but reversed the dismissal of a retaliation claim. Even recognizing that there are disputes over the facts, the case is a good lesson in how not to respond to a complaint about racial comments even if you believe the employee to be lying.

In July 2007, NuAir hired Lionel Pye as a temporary employee doing metal finishing work.  It was entry level work.  He was made a regular employee in October 2007, at which point he asked the company payroll administrator to fill out a form so he could get housing assistance from the county government.  The payroll administrator was apparently rude to Pye, and uttered a racial slur in his hearing (she disputed this).  Pye complained about it to the HR manager (Johnson) who met with Pye and his supervisor.  What was said at the meeting was disputed.  After the meeting, Johnson reported to the Vice-President (Peters) that Pye was trying to shake down the company by making an implied threat to sue.  The court explained what happened next:

Johnson suggested to Peters that a lawyer be consulted to see if NuAire could fire Pye for making threats. Peters responded that he did not need to consult a lawyer, and directed McKnight [the supervisor] to fire Pye when Pye next returned to work on Monday, November 19, 2007. The only information Peters had at the time he made the decision to terminate Pye pertained to Pye’s allegations of discrimination, and to the investigation; he had no information regarding Pye’s performance on the job.

The court's decision shows the employer made a critical error.  "There is no evidence that NuAire had any concerns regarding Pye’s performance before he engaged in protected conduct.  Indeed, Peters acknowledged that he had no information regarding Pye’s work performance when he made the decision to terminate him."  This led the court to hold that, if Pye's version was true, a jury could "believe that NuAire’s assertions of intimidation, coercion, and threatening behavior were pretext for -- if not further evidence of -- NuAire’s true prohibited reason for Pye’s termination."

Making false accusation of racial misconduct is not protected any more than are using those false accusations in an attempt to shake down an employer.  Even so, the standard, as I said in a prior post about a decision from this same court, is very high.  Most of the time, the employer's decision will have to be defended to a jury.  The employer could hopefully have saved itself some grief and expense by consulting with an attorney before firing Pye.  

Given this post's title, I suppose I should say what I would have recommended had I been called after the meeting.  In a situation like this, I would have recommended the employer document the statements made at the meeting in a memo to the employee.  I would ask the employee to confirm that the memo is accurate or get the employee's version of events (in writing, if possible).  Only then would I make a decision about whether to fire or otherwise discipline the employee for making threats.  A little patience goes a long way.  (And yes, I realize the title is self-serving and hope it is taken with the humor in which it is intended.)