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Monthly Archives: July 2014

Supervisor seeking “a more youthful approach” will explain his position to jury

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Comments from a supervisor with respect to a promotional position that he was going for “a more youthful approach” supported a teaching hospital employee’s nonpromotion claim for age discrimination under the ADEA and the New York State Human Rights Law (NYSHRL), a federal district court in New York ruled. As to the employee’s termination, however, she presented no evidence of age discrimination, and it looked like relations between the employee and her department head had soured in the months leading up to her dismissal (Mullinix v Mount Sinai School of Medicine, July 24, 2014, Castel, K).

New position created. The hospital hired the employee as an associate director when the employee was 65 years old. The director to whom she reported left the hospital soon after, and the employee stepped in as interim director under a two-year contract. At that time, a dean at the hospital decided to create a new position, Vice President, who would head the department and to whom to the director would report. The employee expressed an interest in the VP role. While the employee was getting installed as the director, the employer hired a headhunter to find someone for the VP position.

During his search, the headhunter wrote, in reference to the employee, “mid 60’s to Retire.” Of her eventual meeting with the headhunter, the employee said that he seemed uninterested in discussing her credentials. The employee’s name was never listed on any monthly report reflecting the status of candidates for the job, nor were any of her references contacted. Just before the employer eventually hired a 51-year-old candidate for the VP job, the operations manager allegedly said with respect to the position that he was “looking for a more youthful approach.”

Rocky inter-office relations. The new VP received complaints from other faculty members about the employee’s performance and observed that the employee was antagonistic and abrasive. Part of the employee’s job as a director was to negotiate agreements with other organizations, and the new VP expressed concern to the employee that the employee treated negotiations more like a “battle” and not a “partnering exercise.” As the employee’s contract renewal drew near, the new VP told the employee that she would recommend that her contract be extended, but she later told her superiors that the employee was difficult to work with.

In addition, the new VP accused the employee of “hijacking” a department meeting by giving a too-lengthy presentation that cut in to the time left over for others. Then the new VP informed the employee that the employer would not be renewing her contract because the employee was “not sufficiently congenial with the faculty.” Although she initially planned to find a new position for the employee within the hospital, after speaking with the operations manager, the new VP decided to dismiss the employee before her contract ran out.

Failure to promote. First, the court looked at whether a reasonable jury could find that the employer did not promote the employee to the position of VP on the basis of age discrimination. The employee established a prima facie case for race discrimination; the mere fact that the successful candidate for the VP position (51 when hired) was significantly younger than the employee (67 when the new VP was hired) was a reliable indicator of age discrimination, noted the court. The employer stated a legitimate, nondiscriminatory reason for hiring the new VP by pointing out that she was a qualified candidate who came highly recommended with particular praise for how she interacted with faculty and administration.

“A more youthful approach.” The employee pointed to several incidents showing that the employer acted with discriminatory intent when choosing not to promote her: Her references were not checked, her interview with the headhunter was perfunctory, and she never appeared on the headhunter’s list of candidates being considered. This was not enough to show discriminatory intent, since the employee was an internal candidate and the person responsible for hiring a new VP, the operations manager, had plentiful opportunities to observe her work up close that made lengthy interviews and a thorough reference check unnecessary. However, a comment made by the operations director that he was “looking for a more youthful approach” and that “the office is going to be different,” could convince a reasonable jury that the employee’s age was a “but for” cause of the decision not to hire her as VP, especially since the remark bore directly on the position for which the employee was the oldest candidate and was made by a key decision-maker.

Same actor. The court next rejected the employer’s argument that, because the operations manager was the person who hired the employee (then 61) and promoted her to the position of director, he could not have made his decision not to promote her to VP on the basis of her age. While the operations director did promote the employee to director, that was only an interim position, and she was told that the VP position was being created as she was promoted to director, facts which minimized the application of the same actor defense. The note written by the headhunter marking the employee as “mid 60’s to Retire” was also slightly probative of discrimination. Based on the collected facts, a reasonable jury could find that the employer failed to promote the employee because of her age.

Termination. The court next turned to whether a reasonable jury could find that the employee was terminated on the basis of her age. The employer’s non-discriminatory reason for the employee’s termination was that the new VP had continuing complaints about the employee’s attitude and performance, and that the new VP thought that the employee had hijacked a departmental presentation for her own self-promotion. Unlike her arguments concerning the employer’s failure to promote her, the employee did not show that the employer’s offered reasoned was a pretext for age discrimination.

Souring relations. Considering the factual circumstances the hospital offered to support its decision, the court noted that the new VP decided not to renew the employee’s contract. While she previously indicated that she planned to renew it, she wrote in later communications with coworkers that “working with [the employee] is misery.” The employee’s behavior during a an hour-long meeting when she spoke for 45 minutes, well over her allotted time, further soured relations. Finally, the new VP decided to end the employee’s association with thehospital earlier than she originally intended after speaking with the operations director. While this might cast doubt as to who exactly made the decision to let the employee go, there was no indication that it had anything to do with her age.

The court denied the employer’s motion for summary judgment with respect to the employee’s promotion and granted the motion with respect to the employee’s termination.
By Dan Selcke, J.D.

Comment that office “could lighten up a bit” garners race bias claims a second chance

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Finding a lower court had “overlooked evidence” in holding that an African-American plaintiff lacked sufficient evidence of pretext to support his Title VII race discrimination and retaliation claims, the Second Circuit vacated two district court orders granting summary judgment to the employer and revived the pro se plaintiff’s claims. The record contained several examples of pretext evidence that could be credited by a jury, including statements by the employee’s former supervisor, in regards to his ability to discipline his African-American regional managers, that “they don’t know how to police each other” and a statement that the regional office “could lighten up a bit,” the appeals court found (Kirkland v Cablevision Systems, July 25, 2014, per curiam).

The employee was the only African-American area operations manager working for the defendant employer. Less than a month after his latest complaint of race discrimination to a human resources executive, he was fired. Prior to that time, he had made multiple complaints of discrimination to HR, particularly with regards to being singled out from the other area operations managers. When he was fired, he filed charges with the EEOC, contending that his termination appeared to be retaliatory, and then filed suit, alleging Title VII and state law claims. The employer’s initial motion for summary judgment was denied with regards to the retaliation claim, but granted as to the race discrimination claims. After a motion for reconsideration, the court also granted summary judgment on the retaliation claims.

Genuine factual dispute. The Second Circuit determined that the lower court had overlooked evidence that raised a genuine factual dispute regarding whether the employer’s reasons for firing the employee (poor performance reviews and affidavits from three regional managers he supervised) were pretext for retaliation and race discrimination. In so doing, the appeals court pointed to several instances of evidence that could lead a jury to find that the employer had violated Title VII. The court also noted that the plaintiff was pro se and, therefore, the court had to “construe his submissions liberally and interpret them ‘to raise the strongest arguments that they suggest.’”

“KKK without the hood.” Of particular note was testimony by the employee’s replacement in the position. She testified that the supervisor had explained the employee’s termination as resulting from his inability to discipline a subordinate. All of the regional managers working under him were African-American, and his supervisor told the replacement that he “ha[d] come to learn that they don’t know how to police each other.” The supervisor also told her, regarding the managers, that the regional office “could lighten up a bit.” She also testified that she believed the supervisor was “racist” and that she had also complained to HR about him. She testified that the HR manager told her that the supervisor was “known as the KKK without the hood.”

Additional evidence. The employee also swore that the supervisor singled him out for criticism, including complaining at one time about a presentation he gave using a colored background, telling him that there was “no room for color in a business presentation” and that “white was better than color.” He also swore that the HR manager had falsified and back-dated documents relating to his performance, which the court explained was “made plausible” by the replacement’s testimony that the supervisor had asked her to drum up negative information on the employee after he sued. The employee also testified that “[he] wouldn’t be surprised” if the supervisor had falsified the regional managers’ affidavits. As the court noted, the HR executive had written that those particular managers were “not receptive to coaching.”

Furthermore, there was evidence that the employee had complained about retaliation and race discrimination months earlier, and had repeatedly asked for a response from HR. In a meeting with an HR employee, he complained about the lack of follow-up and blamed the earlier complaint for his performance review. Again, the court pointed to notes made by the HR associate that could support the employee’s testimony regarding his complaints about being treated differently and not hearing back regarding his earlier complaint. It was up to the jury, the court explained, to credit some, all, or none of this evidence. And if believed, a jury could decide that discrimination was wholly or at least partly the basis for the termination, and that “retaliation would not have occurred ‘but-for’ the alleged wrongful actions.” Therefore, the court vacated the grants of summary judgment in the employer’s favor and remanded the case.
By Brandi O. Brown, J.D.

Investigation, threat of discipline for filing false EEOC report not retaliation

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Affirming summary judgment in favor of a county sheriff’s department on the retaliation claims of several white officers who complained to the EEOC of racial harassment, the Second Circuit found that, on the facts of this case, which “may be a tad unusual,” the decision was proper. Though the officers filed an internal complaint that an African-American deputy asked them why they shaved their heads and started rumors that they were “skinheads,” they later claimed in their EEOC charge that he confronted them and accused them of being “skinheads.” While they established a prima facie case of retaliation, when taken in the context of a work environment tinged with racial tensions and in light of the employer’s duty to investigate and remedy racial harassment and their general duty not to file false reports, the court found that their claims failed as a matter of law (Cox v Onondaga County Sheriff’s Department, July 23, 2014, Winter, R). The five officers shaved their heads to show solidarity with a coworker who was undergoing chemotherapy. They filed an internal departmental complaint alleging racial harassment based on questions about their hair and rumors that they were “skinheads.” They singled out one officer, the African-American deputy, whom they alleged started the rumors. Their internal complaint did not indicate that the interactions had been accusatory or confrontational in nature. Nevertheless, they indicated that the rumors had created a “racially hostile and unsafe” workplace and put their families in danger. A captain investigated the allegations and found no evidence of harassment. (One of the officers withdrew as a complainant prior to its resolution.) First EEOC complaints. Subsequently, the remaining officers filed EEOC complaints, under oath, claiming that an African-American deputy had, in a face-to-face confrontation, accused them of being skinheads. They appeared to “all but expressly” reference the same deputy they had accused in the internal complaint. The employer filed a response with the EEOC, indicating that it found no merit in the harassment claim and noting that the entire investigation package had been submitted to its professional standards unit (PSU) for review. PSU investigation. The EEOC dismissed the complaints and the employer’s PSU continued its investigation. In addition to investigating the incidents, it also investigated the assistant chief’s allegation that the complaining officers engaged in misconduct by filing false reports and an allegation that the original investigator also made a false report regarding the investigation. Complicating the investigation was the fact that the African-American deputy had previously prevailed in a lawsuit against the department alleging a hostile work environment and retaliation. During the PSU investigation, the employees did not claim to have heard any officer say that they were skinheads, although they did assert that several officers made inquiries. Some officers testified that there were rumors that the deputy had started the rumors, but he denied having done so. He also stated during an interview that the matter was putting undue stress on him. Although the officers were told that disciplinary action was being considered against them because of the EEOC filings, they were not disciplined. Still, the PSU found a violation by two of the officers, and the captain who had initially investigated the matter was demoted. Second EEOC complaints and suit. The officers filed additional EEOC charges related to the PSU investigation and threats of false reports. The EEOC found evidence of retaliation and issued a right to sue notice. The officers filed suit, alleging a hostile work environment and retaliation. The lower court dismissed claims asserted under Sec. 1981, as well as their Title VII HWE claims. The remaining claims were later dismissed by grant of summary judgment — the court found that they failed to establish that they suffered an adverse action. The officers appealed. Threats of false report charges. It was “fairly obvious” to the appeals court that the officers made out a prima facie case of retaliation based on the threats of false report charges. However, the employer met its burden of providing a non-retaliatory reason for the threat based on the “unusual” facts of this case. Discipline-related statements about the charges were “completely reasonable in light of the record,” the court explained, because the officers had given materially inconsistent statements regarding the deputy’s behavior. Those statements ranged from describing him as asking about their shaved heads to accusing them of being skinheads. The latter accusation, based on the record, was “false, and seemingly intentionally so” and formed the basis of a misconduct complaint. Therefore, it was “in fact fair” to the officers to inform them of the possible results of the investigation. Complaints about deputy could be seen as harassment. The court was also influenced by the fact that the officers’ claims of racial harassment were made in the context of a department that had racial tensions and the fact that the claims, themselves, could reasonably be seen as racial harassment of the deputy. In fact, his testimony indicated that he felt harassed and the PSU investigation report noted that he felt “undue stress” because of it. Noting that the employer was under a duty to investigate potential racial harassment by lower-level employees, the court explained that it would be “anomalous to conclude that an employer is not allowed to investigate, with a view to discipline, false complaints of harassment that themselves might be viewed as intended as racial harassment.” Also supporting its decision was the fact that the employer had a policy regarding false reporting and that false charges could create credibility issues in other, unrelated cases. Where the officers had not presented any other evidence that the warning was intended to be retaliatory, they did not meet their ultimate burden of proof. Adverse actions? They also contended that multiple aspects of the PSU investigation amounted to adverse actions, including that: (1) the investigation was handled by the PSU, rather than internally; (2) the interview of the deputy was less confrontational; (3) the PSU was more concerned about the captain’s failings than the substance of their allegations; and (4) their request for a copy of the PSU report had been denied. These latter two alleged adverse actions the appeals court found to be frivolous. As for the questioning of the deputy, even assuming it was different, the court noted that there were “sound reasons” for the difference. His interview occurred after interviews with the officers had shown that no one had seen or heard him make the alleged remarks. As for the fact that the PSU conducted the investigation, the court noted that the written policy of the sheriff’s department authorized such an investigation at the chief’s discretion. Investigation was not retaliation. Regarding the fact that the employer conducted the PSU investigation in the first place, the court explained that under these circumstances, the investigation did not amount to an adverse employment action. It noted that such an investigation could amount to a “cognizable retaliatory action” in certain circumstances, i.e., when “carried out so as to result in a hostile work environment, constructive discharge, or other employment consequences of a negative nature, or if conducted in such an egregious manner as to ‘dissuade a reasonable worker from making or supporting a charge of discrimination;’” however, those circumstances did not apply here. “[W]ithout more,” the employer’s investigation of an employee’s EEOC complaint regarding racial harassment could not sustain a valid retaliation complaint. Indeed, although the employer was not required to do so by the relevant statutory provisions, such an investigation was clearly contemplated by the regulations. Employers must be allowed to inform themselves “of all facts relevant to an EEOC complaint” and are “sometimes asked to present their view of the facts.” Failure to do so might also be viewed as “evidence of an indifference to racial discrimination, if not acquiescence in it.” In fact, the court explained, “we can say with confidence that the law must give breathing room for such investigations to be carried out.”
By Brandi O. Brown, J.D.

Sexual comments, but not sex on desk, revive discrimination claim

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Though the regular use of a substance abuse counselor’s desk for sex by night-shift employees at a maximum security prison in Indiana was egregious, subjectively offensive, and severe, it did not support her hostile work environment claim where there was no evidence that the harassment was caused by her gender, a Seventh Circuit panel stated. However, based on the constant barrage of sexually charged comments directed toward her, the court reversed a district court’s grant of summary judgment in favor of her employer as to this claim. While it affirmed summary judgment on her retaliation claim, her sex discrimination claim, in which she alleged that she was treated differently than a male coworker with whom she was having an affair when she was terminated and he was allowed to resign and continue working for an outside contractor, was also revived (Orton-Bell v State of Indiana, July 21, 2014, Manion, D). No jeans, no riot. When the employee was first hired to work at the prison, she claimed that the superintendent invited her to come to department-head meetings so that he could “look down the table at her.” Nor apparently was she the sole object of his interest where “a good share of attractive women were there,” though there was no apparent reason for them to be. The superintendent also allegedly told her that she could not wear jeans on Fridays “because her ass looked so good that she would cause a riot.” Pat-downs. Though the superintendent was subsequently fired, the employee contended that pervasive sexual comments permeated the prison workplace. She alleged that male employees would congregate to watch female employees receive pat-downs on their way into the facility and would make sexual comments during the pat-downs. Specifically, she contended that they frequently said that they needed a cigarette after watching her get patted down because it was almost like having sex. Sex on desk investigation. After she and another female counselor complained that their desks were in disarray in the mornings, an investigation revealed that night-shift employees were using them for sexual liaisons. When she asked what she should do, the investigator told to wash her desk off every day and the superintendent told her that he didn’t care as long as offenders were not involved. Sex with coworker investigation. Around this same time, the superintendent began to suspect that the employee was having an affair with a major, who was a 25-year veteran in charge of custody at the facility. A second investigation revealed that the employee and major had sex at her home on their lunch breaks as well as in his office and that they used their work email accounts to schedule rendezvous and participate in sexually explicit conversations. Both employees were suspended and then terminated. While both appealed to a state commission, the major was allowed to resign in good standing, keep all benefits, and continue working at the prison as a contractor. The employee’s termination, however, was upheld. She then sued alleging sex discrimination, retaliation, and HWE in violation of Title VII and the district court granted summary judgment in favor of the employer on all counts. Sex on the desk. On appeal, the employee relied heavily on the sex-on-the-desk incident as sufficient evidence of a HWE. To the court, however, the notion that night-shift staff had sex on her desk because she was a woman was pure speculation. Indeed, the only evidence of any motive for having sex on her desk was that her office had curtains and was in a lockable suite that was accessible with the master key. Nor was there any evidence that the investigator’s and superintendent’s comments were based on her being a woman. And while she argued that it was hard to imagine how the incident did not relate to sex, the court pointed out that while the conduct was certainly sexual intercourse on her desk, that did not mean that night-shift staff had sexual intercourse on her desk because she was of the female sex. Accordingly, the incident, while egregious, did not support a HWE claim. Sexually charged comments. However, evidence of the sexually charged comments directed toward the employee was sufficient to support her claim. Here, the court pointed out that the first superintendent harassed her, ogled her, and ostensibly forbade her from wearing jeans because “her ass looked so good that it would cause a riot.” Moreover, the employee stated that while walking through the pat-down area, she was searched more thoroughly than men were, and that men watched and made sexual comments, which were part of a never-ending barrage. And while there was evidence that she engaged in vulgar banter through email with a coworker, that one private conversation was not enough for the court to conclude, as a matter of law, that she was not subjectively offended by the many other public, unwelcome, sexually charged comments in the prison. Employer liability. As to whether there was a basis for employer liability, the court observed that the employee complained about the comments on multiple occasions to the right individuals; however, nothing changed. Finding that the employee offered enough evidence of every element of her HWE claim for a jury to find in her favor, the appeals court concluded that it was error to grant summary judgment on this claim. Sex discrimination. Turning to her sex discrimination claim, the court noted that the issue was whether she was similarly situated to the major. Finding that they were similarly situated, the court observed that while they were in different branches of the chain of command, they were both fired by the same superintendent for the same conduct in violation of the same standards. As to whether there were “differentiating or mitigating circumstances as would distinguish” the employer’s treatment of the employee, the court noted that she was a counselor of two years and he was a 25-year veteran of the prison’s custody branch. And while the employer may have been more generous with him because of his long career, that also put him in a position to know better; thus, his offense was also worse. Observing that he violated the employer’s conduct standards while in a sensitive leadership position, the court found that the affair compromised his ability to perform his job far more than it compromised her ability to perform hers. Further, unlike the employee, this was not his first workplace affair. Different treatment. Moreover, the court noted, they “were certainly treated differently” as the employee was terminated and banned from working in any capacity for the employer while the major was able to enter into a settlement agreement that permitted him to resign, keep all his benefits including his pension, and work at the prison with an outside contractor. While the employer seemed to acquiesce to those outcomes as a result of the administrative appeal process, the court pointed out that the disparity of the consequences was the effect of its willingness to settle with the major and not with the employee. Even if it were to infer that the employer was merciful to the major because of his long career, the court found that the employee offered sufficient evidence of pretext. Specifically, while the firing of the major for an affair that compromised his ability to lead (especially given his repeated past violations of the conduct code) made sense, letting him resign and retain the ability to keep working (with all attendant benefits) while firing the female counselor with whom he had an affair was suspect, the court explained. Observing that there was very little development of the record below regarding the administrative appeal process and the employer’s decision to settle with the major, the court concluded that based on the evidence currently available, the discrimination claim must go forward, but more discovery was needed on these issues.
By Kathleen Kapusta, J.D.

Entry-level accountants were overtime-exempt learned professionals

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Entry-level accountants at a major accounting firm were learned professionals exempt from the FLSA’s overtime provisions, ruled the Second Circuit. Noting that the employees received substantial, specialized education as accountants, were designated as accountants by their employer, performed entry‐level accounting tasks, and were automatically promoted to a more senior accounting position after two years of satisfactory employment, the appeals court concluded that they qualified for the exemption. Further, they acted in a manner that reflected the knowledge and required judgment characteristic of work in that profession (Pippins v KPMG LLP, July 22, 2014, Lynch, G). The employees worked as “audit associates” at KPMG. They brought an FLSA collective action alleging that they regularly worked more than 40 hours per week but did not receive overtime compensation. KPMG countered that the employees worked as accountants, one of the learned professions specifically identified in the regulations, 29 C.F.R. Secs. 541.301(c), (e)(5), as “a field of science or learning,” so they were exempt from the FLSA’s overtime provisions. A district court concluded that because they were employed as accountants, the employees were exempt from the FLSA overtime provisions, and granted KPMG’s motion for summary judgment. The employees timely appealed. Professional exemption. To qualify for the FLSA’s “learned professional” exemption, “an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.” The defining regulations impose a three‐pronged test to determine whether a primary duty qualifies for the exemption: the work must be (1) “predominantly intellectual in character, and . . . require the consistent exercise of discretion and judgment;” (2) in a “field of science or learning,” which includes accounting; and (3) of a type where “specialized academic training is a standard prerequisite for entrance into the profession.” All three prongs must be satisfied for the learned professional exemption to apply. Here, the employees did not dispute that they worked in the field of accounting, and that the second requirement for application of the exemption was satisfied. However, they contended that the other two requirements were not satisfied, arguing that their work does not require specialized academic training or involve the consistent exercise of advanced knowledge or professional judgment. Specifically, the employees contended that they received all the training necessary to perform their function after their arrival at KMPG, rather than through a prior course of intellectual instruction, and that they did not exercise specialized knowledge or professional discretion in performing their duties because they primarily performed low‐level, routine work. Learned professional. The parties agree that audit associates’ work is primarily concerned with tasks that contribute to the production of work product characteristic of the profession of accountancy. What the parties disputed was whether their work was so “pre-determined,” and whether supervision and review of work product by more senior employees was so pervasive that they never exercised the professional judgment characteristic of accountancy. Further, the parties disputed the extent to which the training, or the work actually performed by audit associates, was based on or required the educational background possessed by those hired for the job. The court noted the regulation explicitly identified “certified public accountants” and those who perform similar jobs duties as learned professionals. Thus, if the employees actually performed work in such capacity, there was little doubt that their work was “predominantly intellectual” for purposes of the exemption. Discretion and judgment. Comparing discretion and judgment in the context of the administrative exemption as opposed to the professional exemption, the Second Circuit concluded that a worker’s application of broad discretion in the course of general corporate decision‐making is of a different character than the professional discretion based on expertise in a particular field that is characteristic of the learned professions. Learned professionals need not exercise management authority to operate as professionals; what matters is whether they exercise intellectual judgment within the domain of their particular expertise. The court further noted that while administrative employees must show “independent judgment” to qualify for the exemption, the definition of the learned profession exemption omits that requirement. More importantly, the Secretary of Labor has recognized that the discretion and judgment standard for the professional exemption is “less stringent” than the discretion and independent judgment standard of the administrative exemption. Advanced knowledge. Turning next to the substance of the professional exemption’s “advanced knowledge” requirement, the Second Circuit observed as an initial matter that it had not yet had an occasion to elaborate on the meaning of this prong of the learned professional exemption. Central to the inquiry are “the importance of the duties, the frequency with which they require the employee to exercise discretion, and the relative freedom of the employee from supervision, as well as the percentage of time the employee spends performing them.” Analogous cases suggest that employees apply discretion in the application of advanced knowledge when they interpret and analyze information central to the practice of the profession. Application of advanced knowledge takes one of two forms: substantive interpretation of data; or meaningful decision‐making capacity characteristic of a member of the profession. Workers may be found to exercise professional judgment even when their discretion in performing their core duties is constrained by formal guidelines, or when ultimate judgment is deferred to higher authorities. Thus, the appeals court concluded, the learned professional exemption applies if employees rely on advanced knowledge of their specialty to exercise discretion and judgment that is characteristic of their field of intellectual endeavor. Qualities of work. Because the accounting profession was explicitly identified in the FLSA regulations, the appeals court concluded that it was not necessary to inquire whether accountancy had a sufficiently intellectual character to qualify as a learned profession. Rather, it had only to identify what qualities are characteristic of the work of an accountant. In order to qualify as professional accountants, employees’ “primary duty” must be the deployment of “professional” skepticism” to ensure the integrity of the financial accounting process, and their individual tasks must typically involve the exercise of such skepticism. However, the occasional exercise of such judgment, which does not constitute a primary duty, will not suffice. Nor will an employee who deals with the tabulation of data demonstrate professional skepticism merely by noting and reporting irregularities or errors in the process of tabulation. The employees acknowledged that audit associates were expected to practice professional skepticism in the discharge of their duties. Here, the facts demonstrated that they practiced professional skepticism in the sense of the judgment characteristic of accountants. Contrary to the employees’ contention that they never employed advanced knowledge in their work, the agreed-upon facts indicated that judgment of the type characteristic of trained accountants was at least sometimes a part of their work. Audit associates occasionally occupied leadership roles, and a review of their typical tasks revealed that they regularly relied on advanced knowledge of accountancy and practiced the judgment and discretion characteristic of their profession.
By Ronald Miller, J.D.

Separation from — or firing — harasser not reasonable accommodation for anxiety

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The harassment-triggered anxiety of an employee was a “disability” under a post-ADAAA analysis (but not as to pre-ADAAA events), ruled a federal district court in New York. However, summary judgment was granted on his non-accommodation claim because the employer’s attempts to separate the employee from his foreman did not work, and getting rid of the foreman would not be a “reasonable” accommodation. The employee’s hostile work environment claim also failed because he did not show he was singled out for harassment based on a disability (Whalen v City of Syracuse, July 15, 2014, Kahn, L). “Horseplay.” The long-time public works employee had known the foreman of his work crew since he was 17 years old. Since the late 1990’s, the two had a series of workplace conflicts. In one, the foreman allegedly ordered the employee to do work without adequate compensation and then verbally abused him when he refused. In July 2007, the foreman allegedly assaulted the employee in front of coworkers, though the employee struck back. The employee obtained workers’ comp based on the incident and filed a grievance with his union. After investigating, the employer concluded the employee was the victim of horseplay that violated its work rules. In a January 9, 2008, letter, the employee’s doctor stated that the employee suffered from anxiety and depression that developed after “a workplace alteration” and would “continue to persist in association with continued workplace strife.” It noted that the employee required medication and psychotherapy. After another physical altercation in July 2008 that resulted in the employee being suspended for five days (reduced to three days after a union grievance was filed), the employee requested work assignments that would not bring him into contact with that foreman. The employer tried to accommodate him but it could not keep the two completely separate due to the nature their work. According to the employee, the harassment continued. He filed suit under the ADA alleging failure to accommodate and hostile work environment. No disability pre-ADAAA. Noting that the ADAAA, which substantially revised the definition of “disability,” took effect January 1, 2009, the court bifurcated its analysis and concluded that before that date, the employee was not “disabled” within the meaning of the ADA. He did not offer any proof that his anxiety and depression significantly restricted his ability to perform a broad class of jobs but only asserted that he was limited in his ability to work as a laborer for the city. That was not enough to show an actual disability under the pre-2009 definition. Nor did the employee show that he had a record of a disability that limited his ability to work in a broad class of jobs, because his six months of medical leave following his workers’ comp award was too short a duration to constitute a substantially limiting impairment, the court found. Similarly, he offered no evidence that the employer regarded him as incapable of performing a broad class of jobs. The fact that it occasionally changed his assignments when he could not operate heavy equipment due to medication was not, on its own, enough to support a “regarded as” claim. Because the employee failed to show he was disabled under the pre-2009 ADA, his reasonable accommodation claim failed to the extent it was based on pre-2009 actions. Disability and accommodations under ADAAA. After explaining how the ADAAA expanded the definition of disability, the court found that the employee’s anxiety and depression “clearly” satisfied the actual disability prong. It therefore continued its analysis and found that no rational factfinder could determine that the employer failed to make reasonable accommodations that would allow the employee to do his job. Notably, the employee did not allege that the employer totally failed to accommodate him. Indeed, the record established that it let him take medical leave when he could not operate heavy machinery due to medication. The essence of the employee’s claim, explained the court, was that being with the harassing foreman triggered his anxiety and depression, and the employer failed to accommodate this aspect of his disability. However, he did not identify a reasonable accommodation that would allow him to do the essential functions of his job. He requested that the foreman be kept away from him but, even assuming that was reasonable, that would not allow the employee to do his job. Indeed, it was undisputed that the employer tried to separate the two but failed because the harassment allegedly continued and the employee sometimes requested the crew on which the foreman worked (on one occasion, he filed a grievance when the employer refused). It appeared to the court that the only action the employer could have taken to enable to the employee to do his job would be to remove the foreman from its employ but “such drastic personnel action is presumptively unreasonable.” For these reasons, summary judgment was granted on the ADA failure to accommodate claim. Hostile work environment. Again proceeding with only the post-2009 conduct since the employee was not “disabled” under the pre-ADAAA definition, the court noted a “confusing overlap” between the failure to accommodate and the HWE claims. With the former, the exposure to the alleged harasser as a trigger for anxiety and depression was the disability to be accommodated, but with the HWE claim, the disability was the anxiety and depression and the exposure to the alleged harasser was the alleged adverse action. Thus, the harassment was irrelevant to whether the employee was a “qualified individual.” With that in mind, the court concluded that the employee appeared to be a qualified individual under the ADA for purposes of his HWE claim, given the employer’s statement that it accommodated him by allowing him to take medical leave when he couldn’t operate heavy machinery and his impairments did not otherwise prevent him from doing his job. Nonetheless, his HWE claim still failed because he provided nothing but conclusory allegations that he was singled out and subjected to a hostile work environment because of his anxiety and depression. Indeed, his allegations suggested that many other employees were also subjected to harassment by the same foreman. Summary judgment was thus granted on the HWE claim.

By Lorene D. Park, J.D.

Military women sexually assaulted by colleagues find no recourse in civilian court

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Affirming the dismissal of Constitutional claims by members of the U.S. Navy and Marine Corps against government officials based on the alleged rape and sexual assault they suffered at the hands of fellow service members, a D.C. Circuit panel concluded that they could not assert a Bivens action because the alleged misconduct was “incident to service,” and because Congress had legislated extensively on the issue but had not authorized this type of lawsuit (Klay v Panetta, July 18, 2014, Griffith). Twelve current and former members of the U.S. Navy and Marine Corps alleged that, during their service, eleven were either raped or sexually assaulted by fellow members of the armed services and another was the target of severe sexual harassment. As a result, the plaintiffs suffered from a range of serious physical and psychological injuries that were allegedly compounded by retaliation suffered when they reported what had happened to their superiors. For example, one plaintiff who served as a hospital corpsman was raped in the operating room. Although the attacker was convicted and sent to prison, the employee was no longer allowed to work in enclosed spaces with male colleagues. This was supposedly for her protection but it left her feeling ostracized by shipmates. She also began receiving negative performance reviews and was eventually told by her commander that it would be best for “morale” if she left the ship. She transferred to another duty station but the retaliation continued when her new chain of command learned about the rape and ongoing investigation. Lawsuit. The plaintiffs filed suit against nine defendants: the three most recent Secretaries of Defense, Secretaries of the Navy, and Commandants of the Marine Corps. They alleged that their injuries resulted from the acts and omissions of these defendants, who were aware of the prevalence of sexual misconduct and retaliation in the Navy and Marine Corps, had the power to eliminate it, and yet failed to do so. They also identified practices by the defendants that contributed to the hostile environment, including granting “moral waivers” that let recruits with criminal convictions serve, allowing commanders to interfere in investigations, and allowing perpetrators to receive nonjudicial punishment and be honorably discharged. In addition, the plaintiffs alleged that the Secretaries of Defense flatly ignored statutory mandates from Congress requiring the establishment of a commission to investigate the military’s treatment of sexual misconduct allegations and the creation of a centralized database of sexual assault incidents. However, the plaintiffs did not allege the misconduct ran afoul of a federal statute authorizing them to recover damages. Instead, they alleged violations of their Fifth Amendment rights to bodily integrity, due process, and equal protection; a First Amendment right to speak about their assaults without retaliation; and a Seventh Amendment right to have juries try their assailants. Dismissing their suit, the district court concluded that it lacked the power to provide the remedy sought because their suit for damages under Bivens was foreclosed by Supreme Court precedent disallowing such a remedy “for injuries that arise out of or are in the course of activity incident to [military] service.” Bivens actions. Affirming, the D.C. Circuit panel explained the history of Bivens, which recognized an implied private cause of action for damages against federal officials who violate the Fourth Amendment. The appeals court noted that there has been an unwillingness to extend Bivens liability to new categories of defendants and noted that this unwillingness derives from the High Court’s shift toward disfavoring judicially implied causes of action generally. That said, the court described the two-step analysis for determining if a Bivens remedy is available. First, courts ask if any alternative remedy exists to protect the interest and, if not, courts make a remedial determination and evaluate whether any special factors counsel hesitation before authorizing a new kind of federal litigation. Here, the appeals court assumed that there is not alternative remedy for the plaintiffs here and concluded that their would-be Bivens action nonetheless failed at the second step of the analysis. Specifically, both the military context of the claims and Congress’s extensive legislation on this specific issue counseled decisively against authorizing the Bivens remedy. “Incident to service.” Pointing to the Supreme Court’s decision in United States v Stanley, the appellate panel explained that no Bivens remedy is available for injuries that “arise out of or are in the course of activity incident to service.” Here, while the plaintiffs correctly argued that it was inconceivable that they were assaulted “to advance a military mission,” that was not the key inquiry. Instead, courts ask whether the suit requires a civilian court to second-guess military decisions and whether the suit might impair essential military discipline. The court does not focus narrowly on the conduct that proximately caused the harm but rather takes a broader view. “If adjudicating the case would require military leaders to defend their professional management choices — ‘to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions,’ — then the claim is barred by the “incident to service’ test.” Here, the plaintiffs’ suit “invites a civilian court to adjudicate, for example, whether it was proper for the defendants to permit felons to serve in the military, commanders to use nonjudicial punishment on offenders, offenders to be honorably discharged, and military (rather than civilian) authorities to investigate and prosecute sexual assaults. This is precisely the kind of ‘judicial inquiry into, and hence intrusion upon, military matters’ that the Supreme Court disavowed in Stanley,” stated the appeals court. Congress’ activity in the field. Also of significance was the fact that Congress has legislated pervasively in the field; it “has been ‘no idle bystander to th[e] debate’ about sexual assault in the military,” wrote the court. The appeals court pointed to the four most recent National Defense Authorization Acts, which included numerous provisions aimed at combating the issue. “Given that Congress is extensively engaged with the problem of sexual assault in the military but has chosen not to create such a cause of action, we decline to imply a Bivens remedy here, even in the face of plaintiffs’ allegations of statutory violations.” – See more at: http://www.employmentlawdaily.com/index.php/news/military-women-sexually-assaulted-by-colleagues-find-no-recourse-in-civilian-court/#sthash.1cUxTS8i.dpuf
By Lorene D. Park, J.D.

Resignation to avoid involuntary psychiatric commitment may be constructive discharge

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A nurse who resigned after being informed that she would be suspended for 30 days with pay and immediately escorted to drug screening and three-day inpatient psychiatric hospitalization stated a claim for constructive discharge, ruled the Fifth Circuit in a unpublished decision. Where the employee was faced with involuntary psychiatric commitment and denied an opportunity to consider her options or speak to someone, such facts could lead to the plausible inference that an HR director was motivated by a desire to force the employee’s resignation in order to avoid pre-termination procedures.  Thus, the appeals court reversed the district court’s grant of the HR director’s motion to dismiss the employee’s procedural due process claim (LeBeouf v Manning, July 15, 2014, per curiam).

The nurse worked for a public hospital for 25 years. Without explanation, she was informed by the hospital’s HR director that she would be suspended for 30 days with pay and immediately escorted to drug screening and three-day, involuntary, inpatient psychiatric hospitalization. After the employee agreed to the drug screening but resisted the psychiatric commitment, the director gave her three options: (1) accept the suspension, submit to the drug screening, and participate in the psychiatric hospitalization; (2) resign; or (3) be terminated. The employer denied her time to consider her options. The employee resigned, then sued the hospital and HR director under Sec. 1983 for constructive discharge without due process of law. According to the employee, the HR director presented no evidence that she had consumed any alcoholic beverages, had taken illegal drugs, was otherwise chemically impaired, or was a threat to herself or others. The district court concluded that the employee failed to state a claim for relief and entered judgment in favor of the HR director.

On appeal, the parties agreed that the employee was a classified civil service employee with permanent status who had a property interest in her position at the hospital and therefore was entitled to due process protection. However, they disagreed as to whether her complaint demonstrated that she resigned or was constructively discharged.

Constructive discharge. Establishing constructive discharge generally requires a plaintiff to show that her employer made her “working conditions so intolerable that a reasonable employee would feel compelled to resign.” The Fifth Circuit has observed that a constructive discharge occurs where it can be shown that an employee is subject to badgering, harassment, or humiliation calculated to encourage the employee to resign. Further, “[c]onstructive discharge in a procedural due process case constitutes a Sec. 1983 claim only if it amounts to forced discharge to avoid affording pretermination hearing procedures.”

Here, an objectively reasonable person in the employee’s position could feel that the HR director created an intolerable working environment when he informed her that she would be immediately committed to a three-day psychiatric hospital. Psychiatric commitment under Louisiana law generally requires “clear and convincing evidence that [an individual] is dangerous to self or others or is gravely disabled, as a result of substance abuse or mental illness.” The HR director provided no explanation to the employee why she would be committed or why such commitment was necessary in light of the fact that she was not protesting the drug test or suspension. Therefore, the situation allegedly created by the HR director constituted the type of harassment that results in an intolerable working environment such that a reasonable employee would be forced to choose between voluntary resignation or forced termination.

Moreover, it was plausible to infer that the HR director’s actions were motivated by his desire to secure the employee’s resignation and avoid affording her pre-termination proceedings. As HR director, he was aware of Louisiana’s civil service requirement that the employee receive a pre-termination hearing if she did not voluntarily resign. Further, he refused her request for time to consider her options or speak to someone else concerning her decision to be terminated, resign, or submit to the psychiatric commitment. Thus, the appeals court concluded that the employee’s complaint plausibly established that she was constructively discharged. Based on this alleged constructive discharge, the employee set forth a plausible procedural due process claim, as she did not receive either notice or an opportunity to respond to any alleged misconduct prior to her discharge.

- See more at: http://www.employmentlawdaily.com/index.php/news/resignation-to-avoid-involuntary-psychiatric-commitment-may-be-constructive-discharge/#sthash.mw0cP294.dpuf

By Ronald Miller, J.D.