Monthly Archives: August 2014

Finding flexible schedule to be unreasonable accommodation as a matter of law was wrong

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Finding that nothing in the Rehabilitation Act takes a flexible schedule off the table as a reasonable accommodation as a matter of law, the D.C. Circuit reversed a district court’s grant of summary judgment in favor of the Department of Agriculture. An employee who suffered depression sought substantial flexibility in her working hours — what is known as a “maxiflex” schedule — as an accommodation for her disability. The district court held, as a matter of law, that the maxiflex work schedule was an unreasonable accommodation request. Here, the appeals court determined that the essential predicate of the district court’s decision — that the employee was legally foreclosed from a maxiflex schedule — was wrong (Solomon v Vilsack, August 15, 2014, Millett, P). The employee worked as a budget analyst in the Department of Agriculture. She had a long history of depression dating back to the 1980s. Beginning in late 2003 and early 2004, her illness intensified due to numerous personal hardships, and she began receiving treatment from a psychiatrist. Her deteriorating condition made it difficult for her to maintain her normal work schedule. As a result, the employee was out of the office a significant amount of time. To complete all of her work, she worked additional unscheduled hours and took work home. There were no complaints about her work performance. Her supervisor knew that the employee was working a modified schedule and reported missed hours as charged leave. The employee was permitted to hang a privacy curtain at the entrance to her cubicle, but the employer did not act on her request to be relocated to a quieter area. Request for flexible schedule. At the same time, the employee was pursuing an informal grievance process regarding a charge on her leave bank. In response to an email from the employee regarding her depression, the supervisor replied that if her condition required “special accommodations” and could impact her “normal duty schedule,” she should provide medical documentation. Thereafter, she provided a doctor’s note explaining her condition and requesting a flexible work schedule to assist in her medical treatment. Unable to come to a resolution with her supervisor, the employee filed an informal EEO grievance. One final attempt to resolve the dispute failed, and the employee filed a formal grievance. Ultimately, the employer rejected the employee’s request for a flexible schedule as an accommodation for her disability. Although the employee was asked for additional medical documentation, she was unable to comply within the ten-day deadline. She was also ordered to remove the privacy curtain from her cubicle. Thereafter, the employee filed a formal complaint of discrimination with the Department of Agriculture. Eleven days later, when the employee attempted to work late to finish a project, she was refused permission to work late without approval. For the next month, the employee’s doctor corresponded with the employee’s supervisors, and again requested appropriate accommodations. In the meantime, the employee communicated with her supervisors and asked permission to telecommute on a part-time schedule. This accommodation was also denied. Eventually, the employee applied for disability retirement. She also filed suit alleging violations of the Rehabilitation Act, ADEA, and Title VII. Specifically, she alleged that the Secretary’s refusal to provide reasonable accommodations for her disability violated the Rehabilitation Act, and that her supervisors had unlawfully retaliated against her for engaging in activities protected by the Rehabilitation Act, Title VII, and the ADEA. The case bounced between the district court and D.C. Circuit before the lower court ultimately found that the employee’s requested accommodation was unreasonable. The employee appealed that judgment. Reasonable accommodation. Here, the employer acknowledged that it was on notice of the employee’s medical condition and her request for a flexible work schedule. It was also undisputed that a reasonable jury could find that the employee’s chronic depression constituted a disability within the meaning of the Rehab Act. Importantly, the employer did not deny that if a maxiflex schedule were a reasonable accommodation for the employee, a reasonable jury could conclude that she could have performed all the essential functions of her job when she sought that accommodation. Accordingly, the question before the D.C. Circuit was whether a jury could reasonably find that the maxiflex schedule that the employee requested could be a reasonable accommodation within the meaning of the Rehabilitation Act. The appeals court determined that the district court wrongfully concluded that the maxiflex schedule was unreasonable as a matter of law. Flexible hours can be reasonable accommodation. Determining whether a particular type of accommodation is reasonable is commonly a contextual and fact-specific inquiry. Technological advances and the evolving nature of the workplace, moreover, have contributed to the facilitative options available to employers. As a result, it is rare that any particular type of accommodation will be categorically unreasonable as a matter of law. In this instance, the employee requested a maxiflex schedule that would afford her the ability to come to work late on some days or leave early on other days, as her condition required, as long as her work was completed properly and in a timely manner. The employer countered that the “ability to work a regular and predictable schedule” is, “as a matter of law, an essential element of any job.” However, the appeals court concluded that nothing in the Rehab Act takes a flexible schedule off the table as a matter of law. The D.C. Circuit noted that the First and Second Circuits agree that “[p]hysical presence at or by a specific time is not, as a matter of law, an essential function of all employment.” Moreover, it observed that other agencies in the federal government use viable maxiflex work schedules as a potential workplace option. Accordingly, the district court’s holding that an “open-ended” or maxiflex schedule is “unreasonable as a matter of law” was incorrect. Regular schedule not an essential function. Further, the appeals court determined that the employee discharged her summary-judgment duty by coming forward with evidence from which a reasonable jury could find that a strict work-hours regimen was not an essential function of her job. The district court acknowledged that the employee never missed “any actual deadline” during the period at issue. Therefore, the employee presented sufficient evidence for a reasonable jury to find in her favor on all four elements of her accommodation claim. Retaliation claims. The D.C. Circuit also reversed the district court’s grant of summary judgment on the employee’s claim that the employer’s revoking her permission to work late was in retaliation for requesting accommodations. The court determined that the employee came forward with sufficient evidence from which a jury could reasonably infer that her supervisors banned her from working after 6:00 p.m. in retaliation for requesting accommodations. The district court’s entry of summary judgment rested on the erroneous premise that the employee, as a matter of law, “could not have been reasonably accommodated.” Because that ruling was based on a flawed predicate holding that the employee’s request for maxiflex schedule was legally foreclosed, that rationale failed here as well.
By Ronald Miller, J.D.

Jury will hear DOL whistleblower suit for employee who helped coworker with OSHA complaint

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The DOL may proceed with a whistleblower suit against the U.S. Postal Service alleging that it retaliated against an employee who assisted a coworker with her OSHA complaint by providing information about her rights and contact information, a federal district court in Washington ruled. On the same day that USPS learned of the OSHA complaint, the employee was transferred and moved to a “cold, damp corner” of another facility, reassigned to lower-level duties, and had restrictions placed on his communications. He also was denied consideration for a promotion. Determining that the DOL presented sufficient evidence of adverse employment actions taken against the employee, the court denied the employer’s motion for summary judgment (Perez v U.S. Postal Service, August 12, 2014, Martinez, R).

OSHA complaint. The employee, an occupational safety and health technical advisor with USPS, was responsible for safety inspections, investigations, and health and safety rule compliance. Thirteen years and many promotions into his employment, the employee in February 2008 was approached by a temporary worker who said that she was experiencing health complications because of her work on a machine. She was accompanied by two union reps, although she was not a union member. She said that her supervisor had threatened to fire her if she was unable to continue working. The employee informed the temp of her rights and provided her with contact information for OSHA. He also emailed two of his supervisors to tell him about the conversation and let them know that OSHA would determine if there was a health issue.

“Precipitous” transfer. Shortly thereafter, the employee was subjected to retaliation because of the assistance he rendered. A few days after talking to the temp worker — and on the same day that USPS was informed by OSHA of the complaint, he was transferred to another office in a precipitous manner, without being allowed to collect his personal belongings. He was first placed at a desk in the middle of the floor, before being moved to an isolated office in a cold, damp storage area. His duties were reduced to menial responsibilities such as filing reports that had already been prepared by other safety specialists and cleaning his office.

Also on the same day, the employee was informed by email that his manager was “displeased” with his work and that he showed a “continuing and obvious interest in representing the bargaining unit.” He was instructed not to engage in any dialogue with the bargaining unit, with certain exceptions. (A month later, additional restrictions were placed on his communications.) The next day, the distribution operations manager also sent an email to another manager informing her that the plant manager did not want the employee to have anything to do with the OSHA complaint. The employee was then interviewed multiple times by a manager regarding the plant manager’s complaints about his performance in what the employee felt was an “antagonistic and disrespectful” way.

By mid-April, the employee went on FMLA leave due to stress and other ailments and began receiving treatment for depression. Meanwhile, in April and again in July, the employee filed OSHA complaints, which triggered ongoing investigations. When he returned to work in mid-September (after some dispute with the employer over whether he had been cleared to return) he was again placed at a secretary’s desk. His responsibilities prior to the transfer were officially reassigned. In October, he received a formal warning letter, which accused him of not following policies, including his “duty of loyalty” to his employer.

Subsequently, the employee applied for a position as manager of safety. One of the review committee members testified that he was told by the selection officer that she did not want to put the employee’s name forward because of his whistleblower complaint and his prior EEO activity. The employee was not selected for the promotion. In January 2010 he was promoted to an FMLA coordinator position and in 2011 he transferred to a facility in another state.

Adverse actions. Although USPS did not dispute that the employee had engaged in protected activity, it argued that he was not subjected to an adverse employment action. The court disagreed, having “little difficulty” finding that he presented sufficient evidence to raise a genuine issue of material fact regarding whether the discrete adverse actions he alleged could “dissuade a reasonable employee” in the same position. The transfer “substantially altered the nature of his employment,” the court explained, by “curtailing his job responsibilities to the point where he could do little more than clean his desk and file already prepared reports and placing him in a cold, damp corner of the new facility.” Moreover, the restrictions imposed on his job functions and communications were “regarded as unusual and even unprecedented.” Additionally, a trier of fact could find that the performance review and refusal to consider him for a promotion were also adverse employment actions, if proven.

The court also rejected the employer’s argument that the actions were not adverse because they did not result in tangible economic loss or alteration of the terms and conditions of employment. “[A] work reassignment without formal demotion can constitute a cognizable harm sufficient to deter reporting where, as here, it is attended by loss of prestige and newly subjects the employee to undesirable job duties,” the court explained.

Causal connection. USPS conceded that the DOL met its burden of providing evidence of causation as to his transfer; the temporal proximity between his protected activity and his transfer five days later — the same day that the employer received notification from OSHA of a complaint — provided circumstantial evidence of retaliatory animus. As for the promotion decision, it occurred nine months after the employee had assisted the temp worker and, in the intervening months, he had filed two separate OSHA complaints himself. The investigations into those complaints were ongoing at the time he applied for the manager position. Therefore, the temporal proximity, as well as other evidence it discussed in terms of pretext, was sufficient to establish a causal link.

As for pretext, the court found that the DOL met its burden with regards to the denial of promotion. A trier of fact could find that the comment by the selection officer to the committee member showed that she possessed animus, which also “motivated her to ensure” that the employee “would not receive fair and equal consideration” for the position. That evidence alone was enough to preclude summary judgment.

Hostile work environment. The DOL also asserted that the retaliation took the form of a hostile work environment, when the discrete acts were considered in combination. USPS contended that such a claim was not cognizable under OSHA’s retaliation provision and that even if it were, the evidence was not sufficient to raise a triable issue of material fact. Neither the Ninth Circuit nor any other circuit has expressly found such a claim to be cognizable under the anti-retaliation provision of Section 11(c). However, the court noted that imposing a hostile work environment could amount to retaliation under Title VII. The court also agreed with the DOL’s contention that Section 11(c) was to be broadly construed. Ultimately, though, the court said that it was “not prepared, on the basis of the parties’ relatively scant briefing on this issue, to squarely determine this issue of first impression at this stage of the proceedings.”

However, to the extent that such a claim was cognizable, the court had “little trouble locating material issues of fact that require the existence of a hostile work environment to be ascertained at trial.” The DOL presented sufficient evidence from which a trier of fact could find the employer’s conduct subjectively and objectively hostile, and it “produced evidence of a string of incidents of harassment, closely connected in time and by the identity of their perpetrators.” Therefore, the court denied summary judgment on that claim as well, and directed the parties to further brief the issue of whether such a claim is cognizable under Section 11(c).
By Brandi O. Brown, J.D.

Food Rite Community Supermarket Settles EEOC Sex Discrimination Lawsuit

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Richmond Store Denied Qualified Female Applicant Van Driver Job, Lawsuit Charged

RICHMOND, Va. – Lee’s Food Corp., doing business as Food Rite Community Super­market, will pay $10,500 and provide other relief to settle a sex discrim­ination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) the agency announced today.

According to the EEOC’s lawsuit, Food Rite refused to hire Deborah Newell for a vacant part-time courtesy van driver position because of her gender. The EEOC charged that in October 2012, Newell saw an online job advertisement for a part-time courtesy driver position at Food Rite Community Supermarket in Richmond. Newell, who met all the job’s qualifications, went to the Food Rite, where she spoke to the store manager about her interest in the vacant driver position. The EEOC said the manager told Newell that he would not hire a woman for the courtesy van driver position out of concern that a female driver would be at greater risk of being assaulted on the job than a male driver. Approximately five days after Newell inquired about the courtesy van driver position, the store hired a male candidate for the position, the EEOC said.

Sex discrimination violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in the Eastern District of Virginia, Richmond Division (Equal Employment Opportunity Commission v. Lee’s Food Corp. d/b/a Food Rite Community Supermarket, Civil Action No.3:13cv838) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to monetary damages, the three-year consent decree resolving the lawsuit includes injunctive relief prohibiting the company from discriminating on the basis of sex in the future, and from retaliating against employees who resist unlawful discrimination or complain about it. The settlement also provides that Lee’s Food Corp. will implement an employment policy prohibiting sex discrimination; conduct training for all employees; post an employee notice about the settlement; provide a copy of its anti-discrimination policy to all employees; and report discrimination complaints to the EEOC.

“Denying a qualified applicant a job because of her sex is unjust and unlawful, no matter if the discrimination results from a ‘concern’ for women’s safety,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office. “That decision is a woman’s alone to make for herself. All people should be allowed an equal opportunity to compete for jobs for which they are qualified.”

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at

Can I Get Punitive Damages in a Kentucky Employment Lawsuit?

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In an employment lawsuit filed in Kentucky, a person generally cannot get punitive damages, according to the Kentucky Civil Rights Act (also called KRS 344). The case McCullough v State Department of Corrections stated that a person cannot receive punitive damages under the Kentucky state statute even if the case is won.

Jefferson County Courthouse (Louisville)Under the Federal Civil Rights Act, a person is able to get punitive damages in a case filed here in the state. This is the main difference between the Federal Civil Rights Act and the Kentucky Civil Rights Act. (However, Kentucky requires the losing side pays the attorneys fee for the winning side. This is somewhat of a tradeoff for this key difference.

However, there is an exception. A person can get punitive damages if the lawsuit is brought under a public policy wrongful discharge instead of under KRS 344. A public policy wrongful discharge covers situations where a case does not fit under typical cases of discrimination such as age, race, disability, religion and pregnancy.

A person can file a public policy wrongful discharge if a company fires an employee because the employee refused to engage in illegal activity. Another example is if a company fires an employee because they were exercising their legal rights such as joining a union.

In situations like that, a person can get punitive damages if they win, but only if the lawsuit is filed as a public policy wrongful discharge. This is more of a collateral, secondary claim. In addition, the claim can only proceed if there is not also a KRS 344 claim that covers the same lawsuit.

In other words, if your employment lawsuit is filed under KRS 344, you may not also file a public policy wrongful discharge. A person cannot double dip a lawsuit.


Photo credit: Jimmy Emerson, DVM (Flickr, Creative Commons)

International privacy law no shield against complying with discovery obligations

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Denying an employer’s petition for a writ of prohibition or mandamus in relation to a long-running discovery dispute with a discharged CEO, the Nevada Supreme Court held that the existence of a foreign international privacy statute does not itself preclude state district courts from ordering foreign parties to comply with discovery rules, but should be considered as part of the sanctions analysis. Thus, the court stated,” civil litigants may not utilize foreign international privacy statutes as a shield to excuse their compliance with discovery obligations in Nevada courts.” Consequently, a Nevada district court did not err in determining that the employer’s conduct in providing documents redacted on the basis of the foreign statute violated its earlier order that the employer could not rely on that statute in raising an objection to the production of documents (Las Vegas Sands Corp v The Eighth Judicial District Court of the State of Nevada, August 7, 2014, Gibbons, M). Sanctions order. Throughout discovery relating to a determination as to whether the employer was subject to personal jurisdiction in Nevada, the employer maintained that it could not disclose certain documents because they were located in Macau, which had a law protecting personal data (the Macau Personal Data Protection Act or MPDPA). Nevertheless, almost a year into jurisdictional discovery, the employer disclosed that many of those documents had, in fact, been sent to the United States. The court ordered a sanctions hearing and, after determining that the documents had been knowingly transferred and placed on a server located in the United States and that the transfer had been concealed, issued an order precluding the employer from using the foreign law as an objection to production of documents. The employer did not challenge that sanctions order. Nevertheless, the employer later filed a report detailing its document production and, in that report, indicated that with regard to the documents that had been transferred from Macau, it had redacted personal data based on the MPDPA. The employee moved for sanctions, arguing that the employer had violated the court’s order. After a hearing, the court found that he made out a claim that the employer had violated its order. In its findings, the court indicated that “there may be some balancing” to do and some consideration as to “why” it had been done. The court set an evidentiary hearing but, before that hearing was held, the employer filed its writ with the state high court. Intervention by high court. Although the high court found that the employer had not persuasively argued that its intervention was warranted, it elected to hear the petition. “[T]he question of whether a Nevada district court may effectively force a litigant to choose between violating a discovery order or a foreign privacy statute raises public policy concerns and presents an important issue of law that has relevance beyond the parties to the underlying litigation and cannot be adequately addressed on appeal,” the court explained. First, the court noted that the U.S. Supreme Court found that a foreign privacy statute did not, alone, excuse a party from complying with a discovery order. Second, the court noted that courts typically consider a series of factors including the importance of the documents, the specificity of the request, where the information originated, the availability of other means of getting the information, and the extent to which compliance or noncompliance would undermine the interests of the United States or the foreign jurisdiction. Compliance with rules required. Next, however, the court noted that there was some disagreement among the courts of appeal as to when those factors should be considered. Some jurisdictions evaluate them both when a decision is being made regarding issuing an order to compel and when sanctions are issued. Other jurisdictions, including the Tenth Circuit, apply the factors only when imposing sanctions and not when determining whether to issue an order. The latter view, according to the Nevada Supreme Court, was “more in line with Supreme Court precedent.” Thus persuaded that approach was best, the high court concluded that the “mere presence of a foreign international privacy statute itself does not preclude Nevada courts from ordering foreign parties to comply with Nevada discovery rules.” Instead, the existence of such a statute was “relevant to the district court’s sanctions analysis in the event that its order is disobeyed.” Because the district court had not yet had an opportunity to apply “the relevant factors,” the state supreme court concluded that the employer had not satisfied its burden of showing that the lower court had exercised its discretion in an arbitrary or capricious manner or exceeded its jurisdiction. Therefore, it denied the employer’s request for a writ. Justice Cherry’s concurrence. Justice Cherry wrote a short separate concurrence agreeing that intervention was not warranted, but faulting the court for its lengthy opinion and for prematurely attempting to “anticipate, project, or predict the totality of findings that the district court may make after the conclusion of any evidentiary hearing.”
By Brandi O. Brown, J.D.

MPW Industrial Services Will Pay $37,500 to Settle EEOC Disability Discrimination Lawsuit

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Company Fired Laborer Because of Back Impairment, Federal Agency Charged

PITTSBURGH — MPW Industrial Services Inc., a provider of industrial cleaning, facility management and labor support services, will pay $37,500 and furnish significant equitable relief to resolve a disability discrimination lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) announced today.

According to the EEOC’s suit, MPW Industrial Services terminated Todd Semko from his position as a laborer before his first day of work after it learned during a fitness-for-duty evaluation that he has an implanted Transcutaneous Electrical Nerve Stimulation (TENS) unit in his lower back for a back impairment. The EEOC said MPW Industrial Services fired Semko because a company occupational nurse feared that he would not be able to charge the TENS unit at the Dravosburg, Pa., worksite to which he might be assigned even though Semko explained that he did not need to charge the unit at work or during working hours. Semko was not under any medical restrictions and the company never requested any additional medical documentation from Semko’s doctor or explored providing a reasonable accommodation instead of terminating him.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from refusing to hire or firing a qualified individual because the individual is disabled or the employer incorrectly perceives the individual to have a disability. The ADA also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. The EEOC filed suit (EEOC v. MPW Industrial Services, Inc., Civil Action No.2-13:cv-01011) in U.S. District Court for the Western District of Pennsylvania after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the monetary relief to Semko, the two-year consent decree resolving the lawsuit enjoins MPW Industrial Services from engaging in discrimination based on disability and from retaliation. The company will create and distribute to all employees policies prohibiting any future discrimination, harassment and retaliation. These policies shall include a complaint procedure to encourage employees to come forward with complaints of violations of the policies against discrimination, harassment and retaliation, as well as a supervisor accountability requirement. Moreover, MPW Industrial Services will provide training on the ADA to human resources staff, the occupational nurse, and all personnel whose job responsibilities include collecting or reviewing medical information, conducting fitness for duty examinations, acting on requests for a reasonable accommodation or conducting discrimination investigations. The company will also post a remedial notice.

“While employers may ask for medical information from newly hired employees under certain, limited circumstances, this case demonstrates the risks and costs involved when a company makes uninformed or speculative judgments about an employee or applicant’s medical condition or medical treatment,” said EEOC District Director Spencer H. Lewis, Jr.

EEOC Philadelphia Regional Attorney Debra M. Lawrence added, “We are pleased that this settlement compensates Mr. Semko for his lost wages and other damages and that the extensive remedial measures will ensure that all applicants and employees are evaluated based on their ability to do the job and not based on unfounded biases or fears about someone’s disability. This comprehensive settlement is also designed to ensure that MPW Industrial Services provides applicants and employees with a reasonable accommodation if needed to do the essential functions of the job, as required by federal law.”

The Philadelphia District Office of the EEOC oversees Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the agency is available at its website,

Three-year time lapse alone not sufficient to bar Title VII retaliation claim

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Summary judgment in favor of an employer on an employee’s Title VII and FMLA retaliation claims for her demotion in a restructuring that occurred three years after her sexual harassment complaint was reversed and remanded for trial. A reasonable jury could find from the employee’s evidence that the demotion was part of a manager’s long-term effort at retaliation for a sexual harassment complaint she made over his objections or in retaliation for her use of FMLA leave during the reorganization. In reversing the district court, the appeals court rejected the idea that the passage of a particular amount of time between protected activity and retaliation can bar the claim as a matter of law. Although three years is a significant period of time, in this instance the employee offered evidence of other retaliatory behavior between a 2003 sexual harassment complaint and a 2006 reorganization and demotion that bridged the gap between the two events, leaving the issue of causation for a jury trial (Malin v Hospira, Inc, August 7, 2014, Hamilton, D).

Sexual harassment complaint. In July 2003, the employee advised her supervisor that she was going to complain to Human Resources about sexual harassment by her indirect supervisor. When the direct supervisor notified a divisional manager about the employee’s complaint, he was told to do everything in his power to stop her from going to HR. Nevertheless, the employee made a formal sexual harassment complaint, and from that point on, the divisional manager evidenced hostility towards the employee. HR investigated the employee’s allegations and issued a counseling memorandum to the harasser.

Failure to promote. In May 2004, the employer spun off the employee’s division from the main company. The divisional manager became chief information officer of the new company and had final decisionmaking authority on all promotions. Between the 2003 complaint and the 2006 reorganization, the employee applied for several promotions but received none. By January 2006, the employee told her supervisor she believed she was experiencing ongoing retaliation from the IT head because she had reported an incident to HR. The supervisor reported her retaliation comment to HR but no further action was taken.

Reorganization. In 2006, the department went through an extensive reorganization, overseen by the IT chief. At the same time, the employee notified the employer that she needed to take FMLA leave effective immediately. As a result of the reorganization, the employee was again denied a promotion; instead, a new position was created to which she was to report. While the new position remained vacant, the employee was effectively demoted as her position was downgraded. In the meantime, the employee successfully performed the duties of the vacant position. She repeatedly asked why she had not been officially promoted even though she was performing the duties of the position and it remained vacant. In response, her supervisor referred her to the IT chief, who had final authority on promotions. Ultimately, the IT chief recommended that the employee’s supervisor interview an external candidate for the vacant position.

Title VII retaliation claim. The employee asserted that the employer engaged in retaliation prohibited by Title VII and the FMLA when it failed to promote her and effectively demoted her as part of the 2006 reorganization, all because she had made the sexual harassment complaint in 2003. Specifically, she alleged that the IT chief effectively froze her career by blocking her attempts to rise any further in the company and by effectively demoting her as part of the 2006 reorganization.

The employee proceeded under the direct method of proof, which required her to provide evidence that (1) she engaged in a statutorily protected activity, (2) her employer took a materially adverse action against her, and (3) there was a causal connection between the two. Finding the first two elements satisfied, the Seventh Circuit focused on element (3) — whether the employee presented evidence that would allow a reasonable jury to find a causal connection between her 2003 complaint to HR and the adverse actions taken against her during and after the 2006 reorganization.

Causation. Here, the appeals court found ample evidence to support the inference that the employer retaliated against the employee for her 2003 sexual harassment complaint when it carried out the 2006 reorganization. In the reorganization itself, the employee was not promoted despite being singled out as a model “relationship manager” by the outside consulting company involved in the reorganization. For the year following the reorganization, she performed the duties of the position she had been denied without any increase in salary, manager level, or benefits. Additionally, she received positive performance evaluations for performing the empty position’s duties. When the empty position was eventually posted, her application was not even considered.

Three-year gap not fatal. Although the employer pointed out that three years had passed between the employee’s complaint and the reorganization, the appeals court rejected its contention that the three-year time interval was a “fatal time gap” that foreclosed any inference of retaliation. “The mere passage of time is not legally conclusive proof against retaliation.” In fact, it a prior ruling, the Seventh Circuit expressly declined to adopt a rule that a long enough interval between protected activity and adverse employment action will bar any inference of retaliation. Rather, the evidence in this case permitted an inference that the IT chief had a long memory and repeatedly retaliated against the employee between 2003 and 2006. Thus, the court held that the employee offered sufficient evidence to survive summary judgment on her Title VII retaliation claim.

FMLA retaliation. Similarly, the appeals court determined that the employee offered sufficient evidence to survive summary judgment on her FMLA retaliation claim. The district court had found that by the time the employee’s sister notified the employer of her need for FMLA leave, the employer had already decided not to promote her as part of the reorganization. If that were correct, there could not have been a causal connection between the employee’s FMLA leave and an earlier decision not to promote her. Contrary to the district court, however, the Seventh Circuit found that there was a genuine issue of material fact regarding when the employer made the decision not to promote the employee as part of the reorganization. The employee asked for FMLA leave on June 19, well before the reorganization was announced on July 12. The employer pointed to no evidence to support its assertion that the promotion decision pre-dated the employee’s FMLA request. Thus, a reasonable jury could find that the employer retaliated against the employee for requesting FMLA leave when it did not promote and effectively demoted her as part of the 2006 reorganization.
By Ronald Miller, J.D.

Federal workers state viable wage claims over government shutdown

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Nonexempt federal employees who were required to work without pay during the government shutdown of October 2013 have raised viable FLSA minimum wage and overtime claims, a federal district court judge has ruled. Paying employees two weeks later than their scheduled paydays for work performed during the budget impasse amounted to a violation of the FLSA’s minimum wage violations, the employees plausibly alleged; and the failure to pay for overtime worked during that time period could also be actionable. However, claims that exempt employees lost their exempt status during that time period, and so were entitled to overtime compensation too, lacked merit. The court thus granted in part the government’s motion to dismiss (Martin v The United States, July 31, 2014, Campbell-Smith, P).

Government shutdown. The plaintiffs were federal government employees who were required to work during the two-week government shutdown but were not timely paid minimum wages and overtime for that work. As “excepted employees,” they continued to work and perform their normal duties but were not paid on their regularly scheduled paydays for the entire pay period; their paychecks reflected payment for work performed only through September 30, leaving them short five days’ worth of pay. They were eventually paid for all work performed during the shutdown, but the pay came two weeks later than their scheduled paydays — on the next scheduled payday following the end of the shutdown, when Congress finally allocated funds to pay the wage debts. The employees also alleged they were not paid overtime during the partial shutdown. Some of the prospective class members were classified as exempt employees but, they argued, because the government did not pay them on time, they did not satisfy the FLSA’s salary basis test for that time period. Consequently, they claimed that at least for the duration of the shutdown, they lost their exempt status and were thus entitled to overtime too.

The question before the federal court of claims was whether the employees were entitled to recover under the FLSA for the delay in the payment of their wages — an issue of first impression before the court.

Totality of circumstances? Urging the court to adopt a “totality of circumstances” approach, the government argued that the late payment of wages was excusable, all things considered, and thus did not violate the FLSA. It urged the court to take into account the legal constraints imposed by the Anti-Deficiency Act, which prohibited the government from paying employees when appropriated funds are not available. It also noted the brevity of the delay in finally paying the workers and the fact that the government paid them as quickly as possible; the employees’ knowledge that they would eventually receive payment (even if they did not know exactly when); and the absence of willfulness on the government’s part.

However, this “totality of the circumstances” test was expressly rejected by the Ninth Circuit, which nonetheless observed that “when late payment becomes nonpayment creates ‘a moving target’ that has the grave potential to subvert the intended purpose of the FLSA.” At any rate, “the weight of the most analogous authority militates in favor of applying the standard known as the ‘usual rule,’” endorsed by the Federal Circuit. Therefore, the court rejected the use of the government’s proposed test.

Usual rule applies. Under the “usual rule,” which numerous courts apply in this context, an FLSA claim accrues at the time of a missed regular payday and a violation occurs at that same time. While there is no explicit timeline for the payment of wages set forth either in the FLSA or its enabling regulations, the court paid heed to the Supreme Court’s emphatic pronouncement on this point in Brooklyn Savings Bank v. O’Neil, a 1945 decision. Observing that the FLSA’s minimum wage provision requires “on-time” payment, the High Court said the statute “constitutes a Congressional recognition that [the] failure to pay the statutory minimum on time may be so detrimental to maintenance of the minimum standard of living ‘necessary for health, efficiency, and general well-being of workers’ and to the free flow of commerce, that double payment must be made in the event of delay in order to insure restoration of the worker to that minimum standard of well being.” Applying this mandate, lower courts have almost universally held that an FLSA violation occurs on the date that an employer fails to pay workers on their regular paydays.

The government argued that the bright-line rule advocated here by the employees would mean that “any delay in payment would constitute an FLSA violation.” But this contention reflected “a misapprehension of how the timeliness rule applies and improperly conflates a finding of an FLSA violation with an award of liquidated damages,” the court said. All that mattered for now was whether an FLSA violation occurred when the government failed to pay its excepted workers on their regularly scheduled paydays. On this allegation, the plaintiffs stated a claim.

FLSA protected plaintiffs. The court found unpersuasive the government’s policy argument that the FLSA was intended “to protect low wage workers” who are denied the minimum wage — not to protect the plaintiffs here, whose pay was only briefly delayed. As the employees pointed out, many of the opt-in plaintiffs in this case are not highly compensated, but earn annual salaries in the $28,000 to $41,000 range. Further, by extending the reach of the statute to cover federal workers, “Congress clearly intended to protect such employees.” Contrary to the government’s contention, then, “a ruling for plaintiffs in this instance is consistent with the purpose of the Act.”

Workweek the proper standard. The parties also disagreed about the appropriate standard for measuring whether the employees were paid minimum wage on time: the government argued the minimum wage should be calculated according to a bi-weekly measurement — such that any potential plaintiff paid $580 or more during that pay period (i.e. $7.25 per hour x 40 hours x 2 weeks) failed to state a claim for relief. But the government offered no authority to support this approach. On the other hand, the plaintiffs urged an hour-by-hour calculation, wherein any single hour that either went unpaid or underpaid would be an FLSA violation. The correct approach lies in between, the court found: the majority approach is a workweek basis.

The court rejected the employees’ plea that even though the workweek approach is the norm, an hourly calculation is warranted given the unusual circumstances presented here. The employees argued that a workweek approach might be well and good for employees who simply missed a meal break (and were denied pay for the missed break) but were otherwise paid their regular hours worked. Those employees still at least know their total compensation, the employees noted. But here, the employees were not paid at all for work performed during a five-day period, they urged, and did not know how long they would have to wait to be paid.

In the end, the OPM minimum wage regulations, a DOL interpretive bulletin, and “an overwhelming majority” of other federal courts support the use of the workweek standard to calculate minimum wages due. Concededly, the use of this measure may be something of a “contrivance” where the employees were paid their regular wage for certain hours but were paid nothing for others, the court said. “Nonetheless, the language of the Act focuses on the aggregate pay for all work performed within a workweek.” Accordingly, the court of claims adopted the majority approach and, based on this calculation method, dismissed from the case any potential plaintiff who was paid more than $290 ($7.25 multiplied by 40 hours) for the week in question.

Split decision on overtime claims. The nonexempt employees also sufficiently alleged overtime claims for the shutdown period, the court held, rejecting the government’s defense that the late payment of overtime wages was acceptable under the circumstances because it could not compute the proper amount due while human resource employees and other federal workers were furloughed. The government also cited DOL regulations for the notion that employers are granted some leeway in paying overtime “when the correct amount of overtime compensation cannot be determined.” But whether the government was able to compute overtime during the shutdown was a factual question to be considered at a later stage, not a motion to dismiss.

On the other hand, exempt employees could proceed no further. Rejecting the plaintiffs’ argument that the exempt employees were not paid on a salary basis and thus lost their exempt status during the period in question, the court noted that OPM regulations — particularly, their definition of “executive,” govern federal-sector workers’ exempt status, not the DOL’s salary-basis test.

Liquidated damages? The government argued that liquidated damages were inappropriate at any rate, contending that it acted reasonably by paying the employees’ wages as quickly as possible after the budget impasse ended, and in light of the constraints that it was under due to the Anti-Deficiency Act. But that wasn’t the measure; what mattered was whether the government had a good-faith reason to believe its conduct was in compliance with the FLSA. And that, the employees argued, the government would never be able to show, and certainly not on a motion to dismiss. The court was not quite so fatalistic.

As for the Anti-Deficiency Act defense, the employees were on the job during the shutdown pursuant to an exception to this statute “for emergencies involving the safety of human life or the protection of property.” (Employees who were required to work during the impasse included prison guards, air marshals, border patrol agents, and the like.) Whether the Anti-Deficiency Act was enough to establish subjective good-faith on the government’s part sufficient to relieve it of responsibility for potential FLSA violations here was an open question — one that would be inappropriate to determine on a motion to dismiss. “Even if the court were to decide that a liquidated damages award is warranted, additional factual determinations remain to be made as to which employees, if any, are entitled to recover, and damages, if any, to which those employees would be entitled.”
By Lisa Milam-Perez, J.D.

ADA confidentiality not a “sword” to protect job application falsification

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The discovery and sharing of false medical information from an employee’s initial medical examination four years later when he was returning from a medical leave of absence, turning that false information over to the labor relations department and to his supervisor, was not a violation of the ADA’s confidentiality requirements for disclosures in the process of medical examinations and inquiries. A federal district court in Michigan accordingly granted summary judgment to the employer (Dillon v Norfolk Southern Railway Co, July 31, 2014, Rosen, G).

Employment entrance examination. During its 2007 hiring process, the employer conducted a medical examination to ensure that the employee was fit for duty, which included a medical history questionnaire. When asked if he had any “hospitalization or surgical procedures,” the employee answered “No.” When asked if he had a “[m]issing/impaired hand, arm, foot, leg, finger, toe,” the employee answered, “No.” He also signed a release stating that he understood his employment could be terminated if it was determined that his answers were untrue. The employee passed the test and was hired.

Falsification discovered. Four years later, the employee injured his leg and took a medical leave. When processing the paperwork to allow him to return to work, a nurse discovered that the employee failed to disclose a prior broken left femur, requiring hospitalization and the insertion of a titanium rod. She informed the associate medical director, who directed her to consult with the Labor Relations Department to determine if they wanted to take administrative action, and he sent a memo to the employee’s supervisor. The assistant division superintendent conducted an investigative hearing under the employer’s collective bargaining agreement, and then it terminated his employment.

The employee filed suit, claiming that when the employer’s Medical Department disclosed his prior injury to the Labor Relations Department and to his supervisor, it violated the ADA’s provision governing confidentiality of information disclosed during medical examinations. The employer argued that the ADA does not protect employees from misrepresentations. Both parties moved for summary judgment.

Employee’s claim related only to confidentiality issue. At issue was only whether the employer kept medical information that it obtained pursuant to an employment entrance examination confidential. The employee did not challenge his termination, nor the employer’s use of medical examinations. The court pointed out that the employee’s claim might have been more properly categorized under ADA Sec. 12112(d)(4)(B) relating to prohibited medical exams because the disclosure of his leg injury occurred as a result of an inquiry during his employment relative to his ability to return to work, but this was not raised, so it was a nonissue.

Employee’s narrow theory of the case. The employee argued that the only exceptions to an employer’s duty to keep all medical information obtained during an employment entrance examination confidential are those the exceptions specifically set forth in the statute, relating to work restrictions, emergency treatment, and government investigation. The employer’s disclosure here did not fall within these three express subsections. In several cases, the employee argued, courts have interpreted Section 12112(d)(3)(B) narrowly, finding that confidentiality was breached when an employer turned over employee medical information from an employment entrance examination to a workers’ compensation claims representative, to an in-house physician, and a workers’ compensation manager, respectively. In each case, the court found that these individuals did not fall under one of the three exceptions in the statute for disclosing medical information.

Statute prevents discrimination, not falsification. The court disagreed with this narrow interpretation, citing the Sixth Circuit opinion in Lee v City of Columbus for the proposition that Section 12112(d)’s use of the phrase “confidential” is meant to be interpreted in the light of preventing employers from discriminating on the basis of information gleaned from job-related medical examinations. Guidance from the EEOC and other courts confirms that the statute’s confidentiality provision cannot be used to protect an employee from an adverse action that was made not on the basis of a disability, but rather upon the employee’s failure to disclose requested information during an employment entrance examination. The court held that an employer may fire a person who provides a false answer to a post-offer inquiry about his condition.

Need to know basis. The disclosure in this case was lawful because individuals other than the Medical Department, specifically, the Labor Relations Department and his supervisor, needed to know the information about the employee’s failure to disclose his prior injury so that they could commence a hearing and evaluate whether to take action against him. Relying on the EEOC’s guidance stating that employers are allowed to share medical information with individuals who need to know the information (and Seventh Circuit precedent holding that an employer did not violate the confidentiality provision by providing the results of an applicant’s medical examination to hiring managers because the hiring managers needed to know the results), the court held that decision makers may have access to an employee’s medical information for the purpose of making an employment decision that is consistent with the purposes of the ADA.

Here, the court found the disclosure lawful; there was nothing in the record indicating that the employer disclosed the employee’s information to anyone who did not need to know, or that the information itself was used to take an adverse action against the employee. Further, the employer took steps to limit the information that was disclosed by redacting information not pertinent to the disciplinary investigation.

Absurd result. Any other holding would lead to an absurd result, said the court. If the court accepted the employee’s interpretation of Section 12112(d), then there would be a no-win situation for the employer. If an employee provided false information that later came to light, then the employer would be forced to either take adverse action and risk liability, or take no action and encourage employees to be dishonest. The purpose of the ADA is to eliminate discrimination against individuals with disabilities; the protective shield of the statute should not be used by employees as a sword to defend against dishonest conduct.
By Victoria C. Cohen, J.D.

Three Categories of Damages in Employment Law Cases

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To understand your rights in an employment law case in Kentucky, you first need to understand the damages that are available. The majority of employment law cases are brought under Kentucky Civil Rights Act, which mirrors the Civil Rights Act of 1974. Our state Act is called KRS (Kentucky Revised Statute) 344, which allows for the recovery of three general categories of damages.

1. Lost Wages

GavelThere are two subcategories under lost wages. The first is back pay. Back pay is the lost wages from the date the plaintiff was fired to the trial date. The second type of lost wages is front pay. Front pay is the amount from the trial date going forward to a designated amount of time. This time period could be one, two, or even five years, which is at the discretion of the trial judge to award. This amount is calculated by hourly rate plus benefits multiplied by the time period specified.

2. Emotional Distress

Emotional distress is defined as pain and suffering, humiliation or embarrassment. Oftentimes, emotional distress is the result of a wrongful discharge. The plaintiff may suffer from a loss of sleep, anxiety attacks, or weight loss/gain. Sometimes, the plaintiff will have medical evidence such as prescriptions or counseling. The law does not require medical evidence of their emotional distress to recover their lost wages.

3. Attorney Fees

The final category of damages is prevailing party attorney fees. When a plaintiff sues his or her employer under the statute, goes to trial, and wins, the company not only has to pay the damages the jury awards to the plaintiff, but also the plaintiff’s attorney fees. The attorney fee is mandatory but the amount is discretionary. Essentially a plaintiff could be awarded only one dollar but rack up $150 thousand in attorney fees. The defendant would be required to pay that amount, although the court could make a downward adjustment due to the little amount the attorney gained for their client. If you would like more information on damages for employment law cases, or you have questions about wrongful termination or sexual harassment, you can contact the Cassis Law Office at (502) 736-8100.   Photo credit: Bloomsberries (Flickr, Creative Commons)