US Supreme Court Says Oral FLSA Complaints are Protected

Resolving a split in the federal courts of appeals, the Supreme Court today held that an oral complaint of a violation of the Fair Labor Standards Act is protected conduct under the FLSA's anti-retaliation provision.  Here is the interesting part:

[T]he statute requires fair notice. Although the dictionary definitions, statutes,regulations, and judicial opinions we considered . . . do not distinguish between writings and oral statements, they do suggest that a “filing” is a serious occasion, rather than a triviality. As such, the phrase “filed any complaint” contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.

Moreover, the statute prohibits employers from discriminating against an employee “because such employee has filed any complaint.” [29 U.S.C.] §215(a)(3) (emphasis added).And it is difficult to see how an employer who does not (or should not) know an employee has made a complaint could discriminate because of that complaint. But we also believe that a fair notice requirement does not necessarily mean that notice must be in writing.

* * *

To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones.

The full decision in Kasten v. Saint-Gobain Performance Plastics Corp. can be read at http://www.supremecourt.gov/opinions/10pdf/09-834.pdf

A New Approach and An Old Subject

I've been silent for a long while - too long - largely because of the press of work, the holidays, and the feeling that blog posts were repeating topics already addressed.   It has become obvious that I simply do not have the time to post lengthy blog posts along the lines I have previously done.   What I hope to do is put up shorter posts on more basic subjects but also post, as the issue arise, links to decisions that impact Tennessee employers. I welcome your comments on the new approach.

There was, as  a matter of fact, a rather interesting racial harassment appeal arising out of Maine.  It touches on the issue of when discipline for harassing conduct was adequate even if not fully effective in preventing future harassing conduct.  Employer encounter this a good bit. 

Two of the black plaintiff's co-workers made overtly racial remarks (not the kind I will repeat here though they are set forth in the decision).  He complained and the company owner "became irate and berated the men, making clear that such misconduct unacceptable" and that a repeat performance would result in their termination. The warning wasn't entirely successful but the plaintiff never again complained to the company owner, choosing to file a lawsuit after leaving employment due to a work related injury.

Siding with the employer, the court's decision has several good statements about the duty an employer has when an employee complains about harassing conduct:

• there is no legal rule that requires treating hateful speech as the workplace equivalent of a capital
  offense
• the imposition of employee discipline is not a rote exercise, and an employer must be accorded some flexibility in selecting condign sanctions for particular instances of employee misconduct.
• The plaintiff's argument that the sanction must have been inadequate because it was ineffective to stop the harassment is nothing more than a post hoc rationalization.  An employer's disciplinary decision must be evaluated in real time; it cannot be evaluated in hindsight.

You can read the full decision at http://www.ca1.uscourts.gov/pdf.opinions/10-1387P-01A.pdf

Get Your Story Straight Before Taking Action

A decision released today from the Sixth Circuit illustrates that Tennessee employers need to get their story straight before firing an employee. 

Brookdale Senior Living, Inc. is, its website says, the nation’s largest owner and operator of senior living communities throughout the United States and a leading national provider of senior-related services. The plaintiff, David Eades was a Regional Director of Start-up Operations.  Eads thought his new supervisor harassed and degraded him because of his age (he was in his early 40s).  Eads complained about it to HR and later to the company president.  Eads and the company discussed a severance package and Eads was sent home with the assurance that he was not fired.  Eads later learned his supervisor was telling folks he had been fired and he could no longer access his email from outside of work.  

The court of appeals held Eads was entitled to a jury trial.  The problem for Brookdale was that, as the court said it was "advancing different reasons in its brief on appeal than it represented to the district court."  Even worse, Brookdale's assertions in the litigation were not the same as those it made in response to Eads EEOC charge.  Brookdale's in house counsel said in the response that Eads had been terminated for "lack of any performance in any position."  This answer was so far wrong that Brookdale's brief on appeal "explicitly denies having terminated Eades for performance issues" saying its counsel had made a mistake. As the court said, however, "Brookdale offers no evidence that either one suggested that the response was erroneous, nor does it explain how its Senior Vice President for Legal Services made such a 'mistake.'"

The inconsistency with the EEOC response was not the only problem. Brookdale's lawyers appear to have put to much "spin" on the severance discussions. They asserted that Eads said "he could not work with [his supervisor] and that he wanted a severance package, but this position is inconsistent with the record testimony of the attendees of that meeting."

The problem with Brookdale's case wasn't simply that it gave unsupported reasons for firing Eads.  Any one of the reasons Brookdale advance might have valid ones (had the facts been in support).  But when employer  and employer asserts different and inconsistent reasons for a decision, that is itself evidence of pretext, as the court said: “An employer’s changing rationale for making an adverse employment decision can be evidence of pretext.”  

In practice, there will be some debate as to what amounts to a "changing rationale."  Courts rightly look to whether the changing reasons are inconsistent, not merely changing.  For example, courts recognize that expanding on a reason already advanced does not ordinarily amount to taking an inconsistent position.  Here, however, Brookdale's assertion to the EEOC that performance was the sole reason for firing Eads could not be reconciled with its position in the litigation.  

By now, the lesson is obvious.  Before taking any employment action, employers need to investigate the  facts and make sure the explanation given at the start is something the employer can live with if litigation ensues.

Tennessee Employers, Get thee to Federal Court - 5/25/2011 Update

The General Assembly has passed a bill that has the effect of overruling the Gossett decision. The legislation is discussed in this post.

Yesterday, the Tennessee Supreme Court issued two decisions in employment retaliation claims that sent a chilling message to Tennessee employers.  The decisions impose new and troubling procedural requirements on employers who try to get retaliation (and perhaps discrimination) claims dismissed prior to trial.  If there ever was a reason not to remove a case to federal court when a Tennessee employer is sued, the Tennessee Supreme Court just removed it.

The primary decision is Gossett v. Tractor Supply where a 3 to 2 majority of the court held that the McDonnell Douglas analysis does not apply when an employer seeks summary judgment in a retaliation claim.

McDonnell Douglas v. Green  is a U.S. Supreme Court decision, early on in the history of Title VII, which set forth the procedure for analyzing discrimination claims. It is not a procedure (unlike the rules governing summary judgment), but a method of analyzing claims where there is not an admission of discrimination.  Later U.S. Supreme Court decisions (a case called Burdine is the most significant among them) refined the  analysis by saying the employee must prove the employer's illegal motive.  The pretext analysis I'm so fond of discussing here is one aspect of the McDonnell Douglas/Burdine analysis, as it has come to be known.

Summary judgment is a way for employers (among others) to get a discrimination/retaliation claim dismissed without a trial.  Trials are expensive.  To obtain summary judgment, the employers needs to show that there is no disputed fact that is material to the outcome.  In practice, this usually boils down to showing that the employee cannot prove that the employer's reason for the action is a pretext for discrimination/retaliation.  Pretext, of course, means a lie, a phony reason given to hide a real reason.

I will cut to the fundamental point, the Tennessee Supreme Court's reason for abandoning McDonnell Douglas/Burdine in when ruling on a motion for summary judgment is based upon the legally flawed premise that courts misinterpret precedent.  The court said, "[i]n addressing the issue of pretext, a court may fail to consider the facts alleged by the employee to show a prima facie case."  But for the justice system to work, courts have to presume other courts will follow precedent.

The belief that courts do not consider evidence that supports a prima facie case is contrary to a 10-year old decision of the U.S. Supreme Court.  In Reeves v. Sanderson Plumbing, the Court held that the pretext analysis includes the evidence from the prima facie case: "the trier of fact may still consider the evidence establishing the plaintiff’s prima facie case 'and inferences properly drawn therefrom … on the issue of whether the defendant’s explanation is pretextual.'"

Justifying a major departure from federal precedent on a flawed premise is bad enough.  But the reason for it is equally inconsequential.  The prima facie case raises a presumption that the employer can rebut.  The evidence it takes to establish a prima facie case is exceptionally minimal.  Basing this kind of a decision on a  concern that a court might ignore evidence used to support the prima facie case is like a football coach complaining about a referee's blown call after losing the game 41 to 3.

The Tennessee Supreme Court also said applying McDonnell Douglas at the summary judgment stage is confusing and "can result in the grant of a summary judgment despite the presence of genuine issues of material fact."  It is wrong about the first point.  Federal courts have for decades applied McDonnell Douglas to summary judgment motions without confusion.  The decisions the court cited as evidence of confusion generally involved "mixed motive" claims.  Mixed motive claims are confusing because they do not apply the McDonnell Douglas analysis.

The court's explanation for its second conclusion is sparse and deeply flawed.  To start with, as one federal court of appeals recently said, McDonnell Douglas is "designed to make it easier for plaintiffs to withstand summary judgment in discrimination cases, in the belief that a discrimination suit (unlike, for instance, an action for negligence or breach of contract), puts the plaintiff in the difficult position of having to prove the state of mind of the person making the employment decision."  Gacek v. American Airlines, ___ F.3d ___ (7th Cir. 2010) (emphasis added). 

The court cited only one decision where McDonnell Douglas supposedly resulting in summary judgment being granted inappropriately.  That was, remarkably, a 2007 decision from the Tennessee Supreme Court which held that timing alone could not establish a pretext for retaliation. The court now seems to be saying timing alone can defeat summary judgment in a retaliation claim. If so, that is a significant departure from its own recent precedent and inconsistent with federal court precedent.  (My views on how courts ignore logic in saying timing can be evidence of motive are pretty clear.)

Perhaps worst of all, the court provides no guidance for lower courts on the rule that now apply to retaliation claims on a summary judgment motion.  (Saying the summary judgment rules apply is not guidance.)  Is the employee still required to establish the employer's reason for the adverse action is a pretext (in a case where there is no admission of bias by the employer)?  The decision leaves it open for employees' lawyers to argue that summary judgment can never be granted in a retaliation claim were the employee can establish a prima facie case.

Another point needs to be made (or else I'll be misquoted).  As best I can tell, both decisions were common law retaliatory discharge claims.  The court never says its decision applies to discrimination claims under the Tennessee Human Rights Act (THRA).  It is implied but since neither appeal concerned a THRA claim, the issue is still open.  Suppose, for a moment, this ruling applies to a THRA claim.  It is common for an employee to bring a THRA claim and a federal discrimination claim in the same lawsuit.  Gacek held that McDonnell Douglas is substantive law, not a procedural rule.  That means state courts hearing federal discrimination claims must follow McDonnell Douglas even in ruling on motions for summary judgment.  Nothing in Tennessee's summary judgment procedures permits a state court to refuse to apply U.S. Supreme Court precedent on federal claims.  So, on the same facts, summary judgment could be granted on the federal claim but not on the state claim not because of any difference in federal or state discrimination laws, but solely because of the way the Tennessee Supreme Court has said to apply summary judgment.

I've carried on with this quasi-rant too long.  The best advice for any Tennessee employer is to insist that your attorney remove to federal court all claims that can be removed (the rules on this are complex but a discussion of them is beyond the point I want to make here).  The Tennessee Supreme Court's decision only affects summary judgment motions in state court.  (State courts will continue to apply the McDonnell Douglas analysis as a matter of substantive law (such as at trial or on post-trial motions)).  Federal courts apply federal rules applicable to summary judgment even when ruling on state law claims.

It may be that in any one case, summary judgment isn't appropriate.  Federal courts, however, have developed and apply rules that give the employer a fair shot at obtaining summary judgment (and do so in a way that does not trod on employees, either). Unfortunately, that is no longer true in state court.

When What Happens in Vegas Won't Stay in Vegas

Prospect Airport Services has some 4000 employees nationwide, some of these provide gate services (such as wheelchair assistance) at the Las Vegas airport. Prospect found itself on the wrong end of a sexual harassment lawsuit by the EEOC when a female co-worker began propositioning a male employee. Today, the Ninth Circuit Court of Appeals held the female's harassment was severe enough to warrant a trial even though the female touched the male only once.

The female attempted to begin the relationship with a note which said she was “turned on” and wanted to “go out" with the male but the male told her he was not interested. She continued with several more notes, including a photograph of herself, "a head and shoulders-type shot with a pressing together of the breasts. . . . no clothing on that portion . . . . the cleavage of the breasts sort of together." She persisted, telling him she "gave a “very good bath wash and body massage" adding, “I do want you sexually and romantically.”

The male made several complaints to his supervisor who promised to address it but did not. He later complained to her supervisor who supposedly told the male he "did not want to get involved in personal matters" but did tell the female co-worker to stop. Instead of stopping she increased the frequency of her suggestive comments and enlisted co-workers to pressure the male. Some asked him if he was gay (he wasn't). The male was finally fired for poor performance which he attributed to the constant harassment.

Female to male harassment claims are rare, of course, though we can speculate that if they are going to happen, they are as likely to happen in Las Vegas as anywhere. The court rejected any suggestion that a different standard applied because the victim was male:

It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome. [The male] suggested this might be true of other men (the district court decision noted that [the male] "admits that most men in his circumstances would have 'welcomed'" her advances). But that is a stereotype and welcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed [the female's] sexual propositions.

But perhaps more interesting, and equally applicable regardless of whether the male is the harasser or victim, is the holding that the conduct was severe or pervasive enough to amount to actionable harassment even though the only contact by the female was a kiss on the cheek.  This was not "severe" harassment but it was pervasive because the female's: 

pursuit of [[the male] was relentless. She would not leave him alone, despite his repeated clear rejections of her overtures. She recruited other co-workers to deliver messages to him; the campaign broadened to include the whole workplace. Other workers began mocking [the male] for his failure to respond to [the female's] sexual advances. [The male] described over six months of constant (and often daily) sexual pressure and humiliation from [the female] and other co-workers.

This being co-worker harassment, the male also had to show the employer's response to his complaints was inadequate.  Here, the court said, there was no contest:

His immediate supervisor . . . failed even to tell [the female]  to stop. He repeatedly brought his concerns to others in management, and a manager told [the female]  to stop, but management did nothing about it when [the female]  did not stop, and management knew she had not. Instead the assistant general manager told [the male] Lamas to sing to himself “I’m too sexy for my shirt.”

While the moral of the story is probably obvious, employers who rely on a stereotyped view of any harassment complaint are asking for costly litigation.  Any employee who complains about harassment should be taken seriously and the complaint investigated.  The complaint may ultimately be proven to be meritless  for any number of reasons but that should not be assumed at the start based upon stereotyped beliefs.  And, of course, supervisors and managers should be trained how to deal with (or report) harassment complaints.

Learning from Others' Mistakes - Things Tennessee Employers can Learn from the Obama Administration's Handling of the Shirley Sherrod Matter

One of the primary reasons I started this blog was to help employers learn from others' mistakes.  It struck me in listening to the media coverage about Shirley Sherrod that the administration has given employers a great example of how not to go about firing someone.  No matter what your political affiliation, every employer can learn from the mistakes the Obama Administration made.

Of course, I'm only going on what I read or heard from the news media.  Some facts are debated (but I won't let a few debated facts stand in the way of good lesson).  Sherrod, of course, was the Agriculture Department official who was summarily fired when the Administration learned, presumably through the news media, that she had given a speech in which she admitted to discriminating against a white farmer.  As the story goes, the video of Sherrod's speech had been selectively edited to make her remarks appear more damning than they actually were.  Sherrod's entire speech showed she was not, in fact, biased but was relaying a story about overcoming bias.

First, as I understand it, Sherrod was fired without being given any opportunity to tell her side of the story.  She claims she was driving when she got a call from a deputy secretary in her department who told her he need her immediate resignation.  She then had to pull over the car and type her resignation letter into her Blackberry.  While there are times when an employer need not hear the employee's side of the story, those times are exceptionally rare.  The far better course, as I explained a while back, is to listen to the employee's version of events before making a decision.

Second, it seems reasonably clear that senior officials in the Agriculture Department decided to fire Sherrod without conducting any investigation, much less a meaningful one.  Sherrod maintains (as any employee would) that she told her supervisors to listen to the entire speech she gave but they ignored her.  The lesson here is, of course, that before an employer fires an employee (especially for  misconduct), the employer should conduct a pretty extensive investigation.  Knee jerk reactions, as I have explained, are likely to cause legal problems for employers.

Third, the Agriculture Department is in the midst of a lawsuit brought by African American farmers who alleged that they suffered racial discrimination in USDA farm loan programs.  According to the Congressional Research Service, the suit alleges that the USDA had discriminated against black farmers from 1983 to 1997 when they applied for federal financial help and again by failing to investigate allegations of discrimination.  One of Sherrod's contentions has been that the participants in this pattern of discriminatory conduct were never discipline for it but that she was fired for only one "offense." Let's suppose, for the moment, that this is true and that Sherrod had confessed to inappropriate conduct toward white farmers.  In meeting out discipline for misconduct, employers should always consider whether the current discipline is consistent with past discipline.

The interesting question this poses, however, is what does an employer do when it wants to change course and no longer follow a past practice?  The Agriculture Department, so the Congressional Research Service says, has been trying to address the discrimination issues for years.  It is not too much of a stretch to think that the Agriculture Department has tried in more recent years to prevent discrimination in loan applications.

To use a less serious example, suppose an employer realizes one day that its relaxed internet use policy is causing problems so it decides to prohibit all personal use of the Internet on work computers.  Absent a union, an employer is not ineluctably bound by its past practices (especially when they are unlawful ones).   But an employer that wants to make a "clean break" with its past practices should do so by unmistakably communicating that policy change to all affected employees.

Before the Sherrod matter, I would never have dreamed I would ever need to write a blog post about such an obvious subject.  But apparently there are employers, even big ones, who make some pretty stupid mistakes.

COBRA - In Case You Were Wondering

Unless you have been under a rock, you'll have noticed that last week, the President signed the Unemployment Compensation Extension Act of 2010.  In the past, similar bills also included an extension of the COBRA premium assistance program.  That did not happen this time.

The Department of Labor has updated its COBRA webpage to clarify that the COBRA premium reduction under ARRA is not available for individuals who experience involuntary terminations after May 31, 2010.

DOL issues Fact Sheet on Break Time for Nursing Mothers under the FLSA

From time to time, the Wage and Hour Division issues "fact sheets" on certain topics.  The latest topic addresses the provision in the Health Care Reform bill requiring employer to provide a "reasonable break time for an employee to express breast milk" for up to 1 year after the child's birth. The Wage and Hour Fact sheet does not go into too much detail.

The Fact Sheet states: "Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk."  So exempt employees need not, as a matter of federal law, be provided with breaks.  That is not clear from the statutory language.

Tennessee law makes no such distinction but the federal provision has some teeth for non-exempt employees because it is an amendment to the minimum wage provision in the Fair Labor Standards Act. This means there is a private right of action but it is not clear what damages could be collected or whether any penalty could be imposed if the employer fails to provide the breaks.

Refusing to Return Employee to Work that Poses "High Risk of Re-Injury" Is Not Retaliatory

The Tennessee court of appeals has upheld the dismissal of a workers compensation retaliation lawsuit brought by an employee who was discharged when two board certified physicians determined that if she was returned to work she had a high risk of re-injuring herself. 

The idea that an employer need not return an employee to a job that would be likely to cause future injury is not new.  See Cannon v. Levi Strauss & Co., 29 Fed. Appx. 331 (6th Cir. 2002) (an ADA "regarded as" claim where employer terminated employee because her physician said continued work sewing pants put her at high risk for future carpel tunnel injuries).  What is relatively new is its application to workers compensation retaliation claims (though even here, a decision from years ago had held that an employer did not retaliate against an employee by firing the employee when the employee could not return to work because of a workers' compensation injury).

Yesterday's court of appeals decision today makes this point directly:

There is no evidence in the record that Plaintiff’s filing of workers’ compensation claims played any role whatsoever in the decision not to return her to work. The prohibition against retaliating against employees who file workers’ compensation claims does not guarantee an employee the right to return to work when such return poses a high risk of re-injury. Stated another way, the prohibition against retaliation does not guarantee employees the right to return to work and to continue reinjuring themselves until they are so disabled that they are permanently and totally disabled and can never work again.

Of course, getting to the point of proving that the employee's return to work is likely to cause the employee harm might take some work.  What impressed the court here was that the employer relied upon the advice of "two physicians who are board certified in occupational medicine" (one of whom was the employer's on-site physician).  While relying on a physician who is board certified in occupational medicine clearly helps, the decision does not say that board certification itself is necessary.

What should matter is that the physician has the expertise to make the decision (board certification certainly helps here) and the medical decision evaluates the employee's abilities (as opposed to making assumptions based upon labels).  

Ten years ago, Chattanooga found itself on the wrong end of a disability discrimination decision when it unreasonably relied upon a physician's advice that an HIV positive individual was not qualified to be a police officer.  There, the Sixth Circuit explained why the City's reliance was not reasonable:

Dr. Dowlen's "report" consists of two scribbled lines at the bottom of a boilerplate evaluation form. While the psychiatrist in Pesterfield clearly made an individualized determination as to the plaintiff's medical condition and its effect on his ability to fulfill his job requirements, there is no indication that Dr. Dowlen did anything of the sort. Moreover, the record is replete with factual evidence available to the City at the time --particularly Holiday's successful performance of police jobs that Dr. Dowlen claimed he was unqualified to do -- that flatly contradicted Dr. Dowlen's unsubstantiated conclusion. Under these facts, the City was not entitled to simply rely on the physician's recommendation as the basis for withdrawing its employment offer to Holiday.

Holiday v. Chattanooga, 206 F.3d 637 (6th Cir. 2000).

Employers are often presented with conflicting medical opinions (sometimes from the same physician).  Courts have held that an employer who fairly evaluates competing medical opinions do not discriminate against an employee because of the employee's disability.  Knapp v. Northwestern University, 101 F.3d 473 (7th Cir. 1996) ("in the midst of conflicting expert testimony regarding the degree of serious risk of harm or death, the court's place is to ensure that the exclusion or disqualification of an individual was individualized, reasonably made, and based upon competent medical evidence.").

Presented with conflicting medical information, the EEOC suggests employers consider: 

(1) the area of expertise of each medical professional who has provided information; (2) the kind of information each person providing documentation has about the job's essential functions and the work environment in which they are performed; (3) whether a particular opinion is based on speculation or on current, objectively verifiable information about the risks associated with a particular condition; and, (4) whether the medical opinion is contradicted by information known to or observed by the employer (e.g., information about the employee's actual experience in the job in question or in previous similar jobs).

Court of Appeals Recognizes Public Interest Exception to Retaliation Claims

The Court of Appeals in Atlanta issued an interesting decision today.  To simplify the facts to their essence (the decision is 34 pages long), no one was good enough for the employer's CFO.  The plaintiff was the third in a line of employees fired when their performance did not measure up to the CFO's impossible standards.  As the court said, the CFO "was indiscriminately persnickety."

Seeing the writing on the wall, the employee fired off an email complaining about discrimination.  She lost the discrimination claim because, the court said, there was no evidence this employee was treated better than her two predecessors.  (For this the court cited what it called the Vince Lombardi rule: "someone who treats everyone badly is not guilty of discriminating against anyone.")

But a meritless discrimination claim can spawn a meritorious retaliation claim.  Here, however, the evidence established that the CFO had decided to fire the employee before she sent the complaining email; the CFO had even started looking for another person to mistreat.

What turned this case into a problem was that the CFO fired the employee immediately upon learning about the employee's complaint instead of sticking with the plan to fire the employee once a successor was hired.

Rather than permit the employee to sue for the firing, the court held she could only sue for the premature firing.  She would been fired anyway, the court said, so the only thing she could recover for was the financial loss during the period she would have remained at work.

What made the case interesting is that the company argued the employee was fired when she complained because it was afraid that the employee might vindictively use her position (remember she worked for the CFO) and the access it granted her to sabotage the company’s operations.  That, the court said, could justify  firing the employee earlier than planned.  The court explained:

Discrimination laws do not require that their goals be pursued at the cost of jeopardizing innocent life or that employers tolerate a serious risk that employees in sensitive positions will sabotage the company’s  operations. We are confident that if an employer removes an employee because of a reasonable, fact-based fear of sabotage or violence, the anti-retaliation provisions of our laws will not punish that employer for doing so. 

What was a good theory failed in its implementation.  The company failed to show its concerns were justified enough to warrant dismissal of the retaliation claim.  The court observed that the employee's email made no threats.  The company also failed to show that it had any other basis for thinking she would try to disrupt operations, nor was there evidence that there were "no means short of firing [the employee] that it could have used to protect itself from the sabotage it feared, such as reassigning her to other duties until it found a replacement."

So while the court recognized an exception to a retaliation claim, it also made it clear that the exception will need to be supported by something more than speculation and unfounded fears by the employer.

What the decision also shows, however, is that rushing to judgment is never a good idea.  Without some well-founded basis for thinking there was an eminent danger or risk, the company should have had the strength of its own convictions and not altered its course.

You can read the decision on the Eleventh Circuit's website: Alvarez v. Royal Atlantic Developers.

Avoiding Pretext - Job Descriptions and EEOC Responses

A federal court of appeals recently upheld a jury verdict for an employee in an age discrimination claim.  The decision shows what happens when an employer explains a hiring or promotion decision by relying on a criteria not mentioned in the vacancy announcement.

National American University was hiring a director of admissions for its Rapid City, South Dakota campus.  The employee worked for the university and sought the promotion.  She was one of three finalists but was not offered the job when the two preferred candidates declined it.  Instead, the university broadened its search ultimately offering the job to a substantially younger candidate.

At trial, the University explained its refusal to promote the plaintiff on the ground that she lacked management experience.  While a director of admissions would seemingly need "management experience" the position vacancy announcements failed to mention it.

Worse, in its EEOC response, the University asserted the employee had "struggled" with her performance and had received "mediocre" ratings.  Yet, at trial, the University abandoned this explanation and its witnesses praised the employee's performance.

The lessons from the decision are pretty basic.  Make sure hiring or promotion decisions can be and are explained by reference to criteria stated in the job description.  While employers are not rigidly bound by what is in the position vacancy, it is a mistake to explain a promotion decision by citing criteria that are not in the job description.

The decision also illustrates the importance of making sure the response to an EEOC charge will be the reason asserted at trial.  It is often tempting, in responding to an EEOC charge, to "embellish" by asserting problems the employer had with the employee, even if the problems were not considered in reaching the decision at issue. If that is what the University did here, it backfired

Silently Revisiting Gross v FBL - Does the "Causation Standard" Make a Difference

I'm back.  The press of work and other good causes prevented me from updating the blog.  For that I apologize.

I was prompted to write a post because of a Sixth Circuit decision that came out today.  A teacher at a high school in Michigan sued the school claiming he had been retaliated against under the first amendment for having filed a prior lawsuit alleging harassment of his daughter by another teacher.  (While constitutional retaliation clams are sometimes different than statutory retaliation claims, those differences are unimportant here.)

What caught my eye was the court's description of the causation standard.  In 1977, in a case called Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285–86 (1977), the Supreme Court said that constitutional retaliation claims required the plaintiff to establish that the improper motive played a "substantial" or "motivating" factor in the decision.  The Court didn't explain but cited to a companion case decided the same day, Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), which explained, among other things, that the constitution did not require a "sole cause" showing but that the evidence in that case failed to show a racial bias motivated the decision.

Skipping forward to today, the Sixth Circuit set out the "substantial or motivating factor" standard from Mt. Healthy saying "we have interpreted this inquiry to mean that a motivating factor is essentially but-for cause—without which the action being challenged simply would not have been taken." (Quotations omitted.)

That caught my eye because  the 1991 amendments to Title VII - which said a plaintiff can prevail if he or she shows discrimination was a "motivating factor" - have led many to argue that "motivating factor" is a lower or lesser standard than "but for" causation.  Most court decisions simply assume that there is a difference.  (But see Harper, The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991, 58 Buffalo L. Rev. 69 (2010) (discussing difference but ultimately drawing unsupported conclusion that Congress must have  intended there to be a difference between a "motivating" and "substantial" factor).  The Supreme Court decision in Gross didn't help this by contrasting the Title VII language from the language in the ADEA: "Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish a discrimination by showing that age was simply a motivating factor."  Gross v. FBL Financial Services, Inc., 557 U.S. ____ (2009).  Loose language read out of context is the bane of any jurist or lawyer.  Read in context, the Court seems to have been attempting to explain its holding - that the dual motive theory does not apply to the ADEA.


So what does this mean, practically? Anyone who thinks they can coherently explain the difference (or that there is a difference) between a "contributing", "motivating", "substantial", "causal" or "because of" / "but for" factor is trying to sell you the Brooklyn Bridge.  I've been practicing employment law for 20 plus years and would not begin to try and explain it.  Employers certainly shouldn't get way-laid by concerns over causation or motivation.

Claryfing FMLA Service and Benefit Rules

The Seventh Circuit in Chicago issued an interesting FMLA decision today.  The decision addressed how to calculate the 1,250 hours of service requirement and whether removal of absenteeism "points" is a benefit of employment.

To be eligible for FMLA leave, an employee must have worked 1,250 hours in the preceding 12 months. The employee argued that the employer should have given her credit toward the 1,250 hours for the time she was on a prior FMLA leave.  Without these hours, she didn't have enough for her second leave to qualify for FMLA protection.  The court disagreed:

There is no basis for such a contortion of the statute—no hint in the statute or elsewhere that Congress envisaged and approved such a circumvention of the requirement that an applicant for FMLA leave have worked 1,250 hours in the preceding 12 months.

The second issue addressed in the decision was more interesting.  It takes a little explaining but it is worth it.  Employers commonly have absenteeism policies that accrue points for employees per absence.  Points are then  removed when the employee has worked a defined period of time.  The Seventh Circuit decision, the absenteeism policy provided for termination when the employee reached 8 absenteeism points in the preceding 12 months.  A point is then removed 12 months after it is imposed.  The 12 months period, however, excluded time spent on leave so that if an employee took a two month leave during the 12 months, the employee would have to avoid accruing 8 points over a 14 month period.  This practice has considerable  logical appeal.  If an employer cannot count the period an employee is on FMLA leave toward the absenteeism point system then it makes sense to exclude that period from the period counted.  It is crucial, of course, that the policy apply to all leaves not just FMLA leaves.

The employee argued that expanding the 12 month period for while she was on FMLA leave denied her a benefit and the FMLA provides that taking FMLA leave “shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.” 29 U.S.C. § 2614(a)(2).  

The court agreed that removing points after 12 months was an employment benefit protected by the FMLA but ultimately ruled the employer had not retaliated against the employee by extending the 12 month period.  

The FMLA prohibits loss of benefits only when those benefits have "accrued prior to the date on which the leave commenced." 29 U.S.C. § 2614(a)(2) and the FMLA further provides that it does not entitle an employee to "the accrual of any  . . . employment benefits during any period of leave."  So, the court explained:

If removal of absenteeism points. . . is an employment benefit, it is one that accrues 12 months after an absence. Until then the employee has no right to have an absenteeism point removed. An employee who worked for 11 months and was on leave the other month (say he began work on January 1 and was still employed on December 31, but was on leave during the month of July) cannot add the month that he was on leave in order to obtain a benefit available to an employee who  worked for 12 months rather than 11, because the employee is not entitled to “the accrual of any . . . employment benefits during any period of leave."

While the decision upholds the employer's practice it also demonstrates that employers must be careful when  designing a "no fault" absenteeism program so that it does not run afoul of the FMLA.