Sixth Circuit: ADA Does Not Require Employer to Accommodate Employee's Commute

Alisha Regan worked for Faurecia Automotive Seating, an automotive manufacturing facility in Michigan. When hired, Regan's work hours were from 6 am to 3 pm.  When her husband later took a new job, they moved some 79 miles from Ms. Regan's job, resulting in her commute to work lasting between two and four hours. 

Regan has narcolepsy but continued to work without incident until Faurecia determined that her group's 6 to 3 shift was inefficient because materials the group needed did not get to them until later in the morning.   When Faurcia change the hours from 7 to 4, Ms. Regan asked to be allowed to leave work at 3 pm (by skipping lunch or starting work earlier) as an accommodation because driving home from work at the later time would put her in heavier traffic.  She explained that heavy traffic tired her out more quickly and cause her to become tired.  Her commute would take longer because she would have to pull over and rest more often.  Faurecia offered FMLA leave but refused to let her end work at 3.

As a threshold matter, the court of appeals addressed whether Ms. Regan's requested accommodation was reasonable because it sought to accommodate difficulties she encountered outside of the work environment.  Relying upon decisions from other courts, the court of appeals held that "the Americans with Disabilities Act does not require Faurecia to accommodate Regan’s request for a commute during more convenient hours. Under the facts present here, her proposal of a modified work schedule for purposes of commuting during hours with allegedly lighter traffic is not a reasonable accommodation."

Tennessee employers should not read more into this decision than it says.  The EEOC agrees that an employer is not required to "provide assistance in getting [an] employee to and from work."  But the EEOC's position is also that an employer must allow an employee to work a "modified work schedule" (e.g. different start or ending times) as an accommodation for a disability.  

Frankly, it is not easy to reconcile the Sixth Circuit's decision with the EEOC's position.  The Sixth Circuit apparently concluded that difficulties caused by the heavier commute were too attenuated from a symptom of her disability (which an employer must accommodate).  I suspect the EEOC might not agree, saying that Regan's disability was a major reason Regan felt she needed to leave early. 

EEOC Addresses Employer's Use of Criminal Background Checks

Today, the EEOC issued an "enforcement guidance" that addresses Title VII liability arising out of an employer's use of criminal background checks.  

Of course, as the EEOC acknowledges, Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin but "[h]aving a criminal record is not listed as a protected basis in Title VII."  Instead, employers can be found liable under Title VII when, for example, "the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record."   Most employers get this point.

The more difficult question is when will the EEOC find that an employer's reliance on criminal background checks causes a disparate impact.  The EEOC's guidance cites to FBI and other studies and finds that

African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans, even though African Americans only comprised approximately 14% of the general population. 

The EEOC also found that imprisonment rates among African Americans was between 5.6 to 10 times higher than imprisonment rates among whites.  Comparative statistics for Hispanic arrests and incarcerations are less reliable but equally troubling.

Based on these statistics, the EEOC concludes that "that criminal record exclusions have a disparate impact based on race and national origin."  There are two points to note here.  I don't dispute the statistics the EEOC relies upon, but the EEOC's adverse impact findings do not distinguish arrests from imprisonment.  Assuming neutrality, employers should be able to treat past convictions as more serious than past arrests. Also, as the EEOC acknowledges, these statistics are no substitute for actual statistics tailored to the employer's hiring pool.  The EEOC cites national statistics and if, as is usually the case, an employer does not hire from a national pool of applicants, then the employer has the right to insist on the use of accurate local data. 

But let's assume there is an adverse impact. The question at this point is whether the practice (however it is defined) is "job related for the position in question and consistent with business necessity." Discussing arrests separately from convictions, the EEOC takes the position that a blanket policy against employing (hiring or firing) individuals because of an arrest history violates Title VII: "an exclusion based on an arrest, in itself, is not job related and consistent with business necessity."  But, the EEOC also says, although "an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.." So, with arrests, employers are advised to take each question individually (and, of course, make consistent decisions to avoid disparate treatment liability).

With convictions, the EEOC is a little more flexible but even here it makes the inquiry too complicated.  The EEOC does not go so far as to prohibit any questions about prior convictions.  It cautions, however, that the "best practice" is to "not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity."  One has to wonder whether the EEOC has ever written a job application because I'm having a hard time seeing how a job application could be written in this manner.

The EEOC also needlessly complicates the task of determining whether a past criminal conviction renders an applicant unqualified.  An employer's past conviction policy, it says, must be "tailored to the rationale for their adoption" (considering all the factors) and will "need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question."  The EEOC never explains what it means by a "demonstrably tight nexus," much less whether this standard is the same as the business necessity standard in the statute (presumably it is).   So far as I (using Google and Lexis) can tell, the EEOC has never used this phrase for any concept.  And of all things, why adopt a confusing and potentially more demanding standard in a Guidance on the use of criminal histories.  There is just no support for this in the statute.

But while I question whether courts will adopt the EEOC's vague standard, I agree that the better practice for an employer is to never make knee jerk reactions.  Blanket exclusions, no matter what the job, are not a good idea.  But employer can adopt rational policies, especially for jobs that require the employee be put in a position of trust.  The EEOC even acknowledges that "Title VII thus does not necessarily require individualized assessment in all circumstances."

What disappoints me most of all, however, is that the EEOC did not address the kind of evidence or showing it will take for an employee to establish that there was a "less discriminatory 'alternative employment practice' that serves the employer’s legitimate goals as effectively as the challenged practice."  The EEOC should have done more than simply parrot the statute especially since, on this question, it is hard to understand how there could be a less discriminatory alternative.

Finally, the EEOC guidance acknowledges that employers will have a valid defense where federal law establishes job criteria.  As always, however, employers will need to be able to show that their decisions consistently applied these federal mandates.

Calling Your Lawyer is Not Evidence of Retaliation

The Sixth Circuit issued a very interesting decision (Sander v. Gray Television Group, Inc. today involving a television news reporter who got mad and stormed off the job, saying "I'm qoing to quit" or words to that effect.  The decision is interesting for the holding that the employee did in fact quit and therefore could not establish a prima facie case (because quitting, short of a constructive discharge, is not an adverse action).

But what interested me was that the court, in discussing whether the employer, assuming it had fired the reporter, considered whether one manager telling another manager to contact the station's lawyers because knowing the employee, the station "would end up at this point sitting at this [litigation] table.”  In arguing that his "termiantion" was retaliatory (the court assumed the reporter engaged in protected activity) the reporter cited to this comment as evidence of retaliation.  The Sixth Circuit didn't buy it:

Companies that terminate employment relationships for legitimate reasons often choose to speak with counsel; therefore, Gray Television’s choice to do so here does not necessarily support a conclusion that Sander was fired in retaliation for complaints about age discrimination.

As of late, I've revived my interest in "age conscious statements" and this decision addressed an argument that is currently being made by older employees.  In his ADEA claim, the reporter (Sander) cited to allegedly age biased statements made by his new supervisor (Thomas) (who made some significant changes to the station).  The court, however, rejected the argument:

Sander claims that Thomas “admitted that he harbored an age-related bias against Sander.” However, to support this claim Sander can only point to Thomas’s comments regarding Sander’s “weak” energy levels and his perceived reluctance to change. The “perceived reluctance to change” was in relation to Sander’s disgruntled attitude toward learning to post stories on the web, which is not necessarily age-related. As for the “weak” comment, as the district court explained, one’s energy level is not only not necessarily related to age, but also is essential to the success of a television station.

I typically suggest, perhaps a bit unrealistically, that employers avoid making any statements that might be taken to reflect an age animus.  (My point is it is better to be explicit, not conclusory, in  describing an employee's performance issues and anything that avoids the cost of litigation is a good thing for an employer.  But truth be told, this decision shows that many innocent comments can be twisted and used against an employer.

The ADEA and "New Eyes"

Earlier in my career I tried to compile a list of the alleged "age conscious statements" addressed by federal court decisions.  It was fun, but impossible to keep up to date.  I still use it from time to time. 

A CA6 decision issued today (Metz v. Titanium Metals) involved a new one for me.  In making a reduction in force decision, a decision maker (Heatherington) sent an email which compared the respective candidates.  The email said:

 [Dickinson] has been employed with us for seven-and-a-half years and has continually performed in various capacities at a high level. He is a solid performer and will bring new eyes and tools to the material movement area of the plant . . . . The two Supervisors currently in that area have been with Timet for many, many years, Hercules, 42-plus, Metz, 23-plus, and Mike Saletta is looking to bring new ideas to the area. Hercules will most likely retire within six-to-nine months. [Dickinson] is well-suited to ensuring improvement in this area. 

The court rejected the argument that these comments reflected an age bias, explaining: 

These comments do not require the conclusion that Timet discriminated against Metz. Heatherington was describing Metz’s and Hercules’s tenures at Timet, which is not the same as their age. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (an employer’s consideration of an employee’s years of service does not equal discrimination). Heatherington’s remarks about “new eyes and tools” and “new ideas” are ambiguous and do not necessarily refer to age. See Abnet v. Unifab Corp., No. 06-2010, 2009 WL 232998, at *4 (6th Cir. Feb. 3, 2009) (a supervisor’s statement about the need to bring in “new blood” or a “change agent” did not show discrimination). And her mention of Hercules’s plan for retirement does not show age-based animus. See Woythal v. Tex-Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997) (comments on an employee’s planned retirement, without more, do not show discrimination).

While the court ruled these comments were not discriminatory, employers should not take this as permission to use these words.  It is best to play it conservatively.  The better practice is to avoid the use of somewhat conclusory statements ("new eyes and tools") in favor of a more detailed explanation of the critical skills the surviving employee possesses.

Subjective Assessments

There's nothing automatically wrong with basing employment decisions on subjective assessments.   For many jobs, particularly exempt jobs, it can be the only way to evaluate an employee's performance.

It is important, however, to do it right.  That means being able to explain the reason for the subjective decision adequately.  In the disciplinary context, it also helps, strongly helps, to be able to point to past attempts to correct the employee's problematic conduct.

A decision (Segal v. Kimberly Clark) from the Sixth Circuit released today demonstrates the difference between an unsupported subjective decision made in a vacuum and laying the proper groundwork.   Consider Kimberly Clark's reason for firing Segal:

First, Kimberly-Clark’s reasons for Segel’s termination are richly supported by the record. Segel’s annual performance reviews persistently expressed concern regarding Segel’s inflexibility toward his colleagues and his clients as early as 2000. When Segel’s 2006 performance review indicated a heightened level of dissatisfaction with Segel’s inflexibility, Kimberly-Clark provided Segel with both a 90-day PIP and a 30-day Last Chance Agreement to improve his behavior. Both documents highlighted Segel’s inflexibility as the reason for Segel’s probationary status with Kimberly-Clark and made clear that Segel’s failure to improve would result in termination.

Segal argued that “flexibility” is an entirely subjective criterion, and that “[s]ubjective assessments are easily susceptible to manipulation in order to mask the interviewer’s true motivations.”  He tried to rely upon a a previous CA6 decision, White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008). The court, however, explained what White held and why that didn't apply to Segal:

In White, an African-American employee appealed the district court’s grant of summary judgment in favor of his prior employer. 533 F.3d at 384. The employee in this case had received stellar performance reviews and was interviewed for an internal promotion; ultimately, however, another candidate was selected for the job. Id. at 386-87. The employer explained that the other candidate was selected because the interviewers considered the employee “extremely aggressive” and “confrontational.” Id. at 387. This Court reversed the district court’s grant of summary judgment, holding that:

any evaluation of [plaintiff’s] interview performance is an inherently subjective determination, and thus easily susceptible to manipulation in order to mask the interviewer’s true reasons for making the promotion decision. Indeed, since the very issue in dispute is whether the reasons given by these interviewers for their decision should be believed, it would be highly inappropriate for us to assume . . . that their own subjective perceptions of [plaintiff] were accurate.

Id. at 394. Accordingly, this Court found that a jury could reasonably disbelieve the employer’s proffered explanation and that the employee’s case was entitled to go forward.

The facts in this case are distinguishable from White. The record in this case presents a longstanding concern with Segel’s flexibility; whereas the adverse employment decision in White occurred in a vacuum of otherwise glowing reviews, Kimberly-Clark’s decision to terminate Segel took place after years of documented concerns regarding his flexibility. Further, the plaintiff in White was interviewed by only four people on one occasion, whereas Segel was evaluated by a greater number of individuals on multiple occasions over the course of many years. So, even though a subjective term like “aggressive” was not a sufficiently clear motivating factor in White, we find that a similarly subjective term—“inflexible”—is adequate where it was repeatedly utilized by varying people on numerous occasions.

So, wise employers won't rely upon subjective decisions "in a vacuum of otherwise glowing reviews" but will lay the ground work by showing a history of addressing the problematic conduct with the employee.

Sixth Circuit Rules Employer Violated FMLA by Failing to Advise Employee How It would Calculate FMLA Leave Eligibility

The Sixth Circuit issued an ugly decision today in an FMLA interference claim.  It's ugly because it didn't need to happen.

The dispute concerned when the employee was required to return from FMLA leave.  The employee thought he had longer than did the employer, who fired the employee when the employee didn't return by the employer's deadline.  The employee maintained he would have been able to return to work by the deadline as he understood it.

The problem arose in how the employer calculated the employee's eligibility for 12 weeks of leave. The court explained:

The FMLA stipulates that, “an eligible employee shall be entitled to a total of 12 work weeks of leave during any 12-month period . . . because of a serious health condition that makes the employee unable  to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(D). Employers, for their part, are “permitted to choose any one of . . . [four] methods for determining the ‘12-month period’ in which the 12 weeks of leave entitlement . . . occurs.” 29 C.F.R. § 825.200(b). Two of these four methods, namely, the “rolling” method and the “calendar” method, are pertinent to this case. The “rolling” method calculates an employee’s leave year “backward from the date an employee uses any FMLA leave.” Id.

 Under the rolling method, the employee's 12 weeks of leave would have expired on June 13, while under the “calendar” method, the allowed leave would have extended theoretically through July 14. The problem, the court said, was that (the emphasis belongs to the court):

At no time throughout the FMLA process did the Company mention to Thom that his leave time would be governed by a “rolling” 12-month period. The only written document he received from the company stated that his leave would expire on June 27. He was only notified that American Standard had  accelerated his return-to-work date on June 14, after it had already elapsed the day before. The first time Thom was given actual notice that the Company was using a “rolling” method requiring him to return to work on an earlier date was after he filed his lawsuit in this case when the defense lawyers raised the rolling method as a defense.

 The employer tried to argue that it had given notice to the employee but the court didn't buy it:

employers should inform their employees in writing of which method they will use to calculate the FMLA leave year. This standard is consistent with the principles of fairness and general clarity, and applying it, [the employer']s notice to [the employee] fell decidedly short. Although [the employer] did internally amend its FMLA leave policy in March 2005 to indicate that it would now calculate employee leave according to the “rolling” method, it did not give [the employee] actual notice of this changed policy.

 Even worse, the employer had approved the employee's FMLA leave for though June 27, which was well after it later maintained, in the litigation, the employee's leave expired.

The lesson is pretty simple.  Make sure to designate the manner in which you will calculate FMLA leave eligibility.  The rolling calendar method is the one most employer's favor.  But more importantly, make sure to calculate FMLA leave eligibility for each employee before approving a return to work date.  But even if you mistakenly approve a return to work date after an employee's eligibility expires, you can fix the mistake by notifying the employee of the new return to work date.  Depending on the circumstances, specifically, the employee's reliance on the longer leave period, you may have to be flexible in when the employee returns.

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.