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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.

Private employer’s use of comp time in lieu of overtime unlawful

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Employees of a private housing development were granted summary judgment on their claim that their employer unlawfully provided compensatory time off in lieu of overtime wages. However, a federal district court in New York denied their motion for summary judgment with respect to their claim that the employer failed to incorporate a nighttime wage differential in their base pay when calculating overtime wages. In a related action, the employees were granted certification of a Rule 23 class action for three subclasses alleging that the employer violated the minimum wage and overtime provisions of the New York Labor Law (NYLL) (Ramirez v Riverbay Corp, August 1, 2014, Koeltl, J). Hourly employees of a housing development alleged that their employer violated the overtime provisions of the FLSA and NYLL. Specifically, they alleged the employer unlawfully provided compensatory time off in lieu of overtime wages and failed to incorporate a nighttime wage differential in their base pay in calculating overtime wages. Additionally, the employees alleged that the employer’s policies were used to impermissibly reduce their compensation by undercounting the hours they worked. It was alleged that the employer would round down on-the-clock time when an employee was more than three minutes late, and that they were asked to perform off-the-clock work before or after their shifts were scheduled to begin. The employees were employed in various positions, including peace officer, bookkeeper, secretary, dispatcher, customer service representative, among others. A number of the employees were union members whose employment was governed by the terms of various collective bargaining agreements. Employer status. As an initial matter, the court addressed a motion to dismiss by a corporate officer and individual defendant who asserted that the employees failed to adequately allege that he was an “employer” under the FLSA and NYLL, individually liable for the alleged violations. The Second Circuit has established a four-factor test to determine the “economic reality” of an employment relationship: “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” The officer served as the director of finance and head of the employer’s payroll department. According to the employees, he had the power to control the employer’s wage policies, employee work schedules, and employees’ rate of pay,” and that he “plays a leading role in developing and modifying payroll practices and policies for RiverBay and its employees.” The court found these allegations sufficient to establish that the officer controlled the employer’s actual operations in a manner that related to the employees’ employment. Importantly, the officer’s involvement in the implementation of one of the allegedly unlawful timekeeping systems, and in the approval of compensatory time linked his control of the employer’s operations directly to the circumstances that gave rise to the employees’ various claims. Thus, the court concluded that he satisfied the definition of “employer” under the FLSA for purposes of individual liability, and denied his motion to dismiss. LMRA preemption. Next, the court had no difficulty in disposing of the employer’s contention that the employees’ comp time and nighttime differential claims were preempted under Sec. 301 of the LMRA. Section 301 preempts state-law claims that require interpretation of an underlying CBA. Similarly, it precludes claims under the FLSA that involve interpretation of a CBA. However, the employees nighttime differential claims were not precluded by Sec. 301 because they invoked statutory rights that were independent of the rights conferred on the parties by the CBAs. Although it was undisputed that the shift differential was called for in the CBA, the employees did not allege that the CBAs were breached. Rather, they asserted that the shift differential triggered their right to additional overtime compensation under the FLSA and NYLL. The employer’s assertion that the employee’s comp time claims were not preempted by Sec. 301 failed for substantially the same reasons. Comp time claims. Three of the four employees were granted their motion for summary judgment with respect to liability for their comp time claims. The employer did not dispute that it had a policy of paying comp time in lieu of cash for certain overtime hours, nor did it dispute that it is unlawful to pay comp time in lieu of cash to a private-sector employee for time worked in excess of 40 hours in a given week. Instead, it argued that the record did not support an inference that any of the employees received comp time in weeks in which they worked more than 40 hours. Section 207(o) of the FLSA permits states and their political subdivisions under certain circumstances to compensate their employees for time worked in excess of 40 hours in a given week by paying them compensatory time at a rate of one and one half hours for every hour worked. By contrast, the substitution of comp time for cash wages by private-sector employers is not expressly authorized, and courts have generally concluded that it is therefore not permitted. Here, two of the employees submitted weekly pay records indicating that they were provided comp time for hours in excess of 40 in at least one workweek. Thus, the court concluded that no other reasonable inference could be drawn but that they were provided comp time in lieu of cash overtime for time worked in excess of 40 hours in a given week. Such time constituted uncompensated overtime under the law, so that these employees were entitled to summary judgment as to liability on their comp time claims. “Cash out” payments. The court rejected the employer’s claim that the two employees were “cashed out” at the end of their tenure with it for all the comp-time hours that they accrued and that these “cash out” payments should cancel its liability for any uncompensated overtime hours. The employer’s reliance on cases applying the “banked method” for computing damages was misplaced, explained the court. The availability to the employer of an offset for cashed-out overtime hours was a question of remedy, not liability. Here, the employer’s cross-motion for summary judgment concerned liability. Moreover, the employer’s “cash out” payments would not apply to an employee who remained employed by the employer. With respect to a third employee, payroll records showed only the aggregate comp time she accrued. As a result, there was no direct support in the record for her assertion that “[w]hen [she] worked in excess of forty hours in a week, [she] received compensatory time off in lieu of overtime pay from Defendants.” Thus, there was a genuine issue of fact as to whether this comp time was accrued in weeks in which the employee worked in excess of 40 hours. Accordingly, the employee’s motion for summary judgment on her comp time claim was denied. Nighttime differential. Both parties were denied their cross-motions for summary judgment with respect to the nighttime wage differential. When calculating an employee’s “regular rate” of pay, an employer must generally include “all remuneration for employment,” subject to certain exceptions. An employee’s regular rate of pay includes shift differentials. Here, the employer did not dispute that the failure to include nighttime differential pay in an employee’s “regular rate” of pay for overtime purposes violates state and federal law. Instead, it argued that there was nothing in the employees’ submissions to establish that they earned nighttime differential pay in the weeks in which they worked more than 40 hours. The court found the employer’s argument meritless. With respect to one employee, none of the payroll records showed that she received a nighttime pay differential during any week within the FLSA limitations period in which she worked 40 hours. Thus, the principal basis for awarding summary judgment would be her own conclusory affirmation that she satisfied the legal standard. Records showed that she earned a substantial amount of nighttime differential pay; however, given the absence of weekly pay records supporting her claim that she received such differential during at least one week within the limitations period, summary judgment was not appropriate on her FLSA claim. NYLL claim. By contrast, with respect to her nighttime differential claim under the NYLL, the employee was situated identically to the four other named plaintiffs and their uncontested affirmation showed that she worked more than 40 hours and received nighttime differential pay in at least one week within the six-year limitations period under the NYLL. Standing alone, this would be a proper basis for summary judgment in the employee’s favor with respect to liability on her NYLL claim.
By Ronald Miller, J.D.

Kellogg ordered to end lockout over its bid to use more “casual” workers

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Cereal maker Kellogg has been enjoined from forcing an impasse in bargaining over nonmandatory bargaining issues and locking out employees at its Memphis plant. In this instance, a federal district court in Tennessee granted an NLRB regional director’s request for an injunction and determined that it was just and proper to end the lockout and prohibit Kellogg from forcing impasse over terms in the parties’ master agreement. Moreover, it concluded that the posting and monitoring requirements would help ensure that the Board’s remedial powers were not undermined by a failure to adhere to the requirements of the order (McKinney v Kellogg Co, July 30, 2014, Mays, S, Jr). Kellogg and the Bakery Workers union are parties to a master labor agreement covering four Kellogg plants, effective until October 2015. An additional supplemental agreement applying only to Kellogg’s Memphis plant expired in October 2013. When the parties failed to agree on a new supplemental agreement before the existing agreement expired, Kellogg locked out the employees. In bargaining on the supplemental agreement, Kellogg told the union that the Memphis plant needed to cut costs significantly to remain competitive within the company’s manufacturing network. To curb costs, Kellogg wanted to change the “concept” of “casual employees” and greatly expand their role at the Memphis plant. Casual employees. The master agreement provided that casual employees must make $6.00 an hour less than regular employees, but it did not define the scope of their employment or provide for benefits. The supplemental agreement provided that casual employees were employed “to provide regular employees with relief from extended work schedules.” There was no provision altering casual employees’ pay or providing them benefits. Among other restrictions, casual employees were limited to 30 percent of the total number of regular employees. Kellogg proposed that there be no cap on casuals and no limits on their work within the Memphis plant. The “only distinction going forward between a regular and a casual employee” would be their wages and benefits. The union balked at Kellogg’s proposed concept for casuals, and the parties were unable to make progress thereafter. Kellogg conceded that under its proposal, a regular employee could be laid off for business reasons and brought back as a casual employee. Subsequently, Kellogg provided the union with its “last/best offer,” informing the union that it would lock out the employees if the union did not agree within a week. Kellogg’s offer was consistent with its demand for changes in the restrictions on casual employees. According to the regional director, Kellogg’s last/best offer would alter the master agreement. Historically, the parties bargained for changes to wages and benefits for new hires as part of the master agreement. After the union rejected Kellogg’s last/best offer, the employer made good on its threat and locked out the employees, causing them to lose their pay and insurance benefits. The regional director requested a temporary injunction under Sec. 10(j) pending the NLRB’s resolution of the underlying unfair labor practice proceedings. Bargaining to impasse. The parties agreed that forcing impasse over terms settled in the master agreement would violate the Act; however, they disagreed about whether Kellogg’s proposals for a new supplemental agreement would alter the master agreement. Here, Kellogg argued that because the master agreement did not define a casual employee, it was free to negotiate changes to the casual employee program without violating the master agreement. However, the regional director argued that Kellogg’s insistence on changes to the terms of casual employment would alter the terms of employment of new regular employees, a modification of the master agreement. Parties are not required to bargain over nonmandatory subjects. “A party who insists upon a nonmandatory subject to impasse or as a precondition to bargaining violates Section 8(a)(5) of the Act.” Imposing a lockout over nonmandatory terms is unlawfully coercive and “discriminate[s] against the employees for their participation in protected collective bargaining activity.” Good-faith bargaining. Here, the court concluded that there was reasonable cause to believe that Kellogg engaged in unfair labor practices. The regional director’s legal theory was that Kellogg’s proposed terms on casual employees were contrary to and would modify terms in the master agreement. Thus, Kellogg’s terms would be an unlawful basis on which to force impasse and impose a lockout. Significant evidence supported the regional director’s theory. The master agreement governed the wages of new regular employees and set their pay schedule, and the totality of Kellogg’s proposal would have resulted in changes to those wage rates. Kellogg’s proposal would have made casuals the same as regulars except for casuals’ pay and benefits, and would have removed any limit on the company’s ability to hire them. Under Kellogg’s proposal, it could lay off regular employees and bring them back as casuals. Moreover, it would never have to hire another regular employee. Thus, Kellogg effectively demanded changes to the wage rates of new or rehired regular employees. Because those rates were set in the master agreement, good-faith bargaining did not allow the employer to use creative semantics to force midterm changes in the wages of new and rehired regular employees in violation of the master agreement. The wage rates of new regular employees were not mandatory terms of bargaining, and Kellogg forced impasse and locked out its employees because of the union’s failure to negotiate and agree to Kellogg’s proposed modifications of those wage rates. Thus, there was a reasonable cause to believe that Kellogg had engaged in unfair labor practices. Just and proper element. The court next turned to the “just and proper” standard for issuing injunctive relief under Sec. 10(j). The court had to determine whether it was in the public interest to grant the injunction, so as to effectuate the policies of the NLRA or to fulfill the remedial function of the Board. An injunction is just and proper when it preserves the remedial power of the Board by returning the parties to the status that existed “before the charged unfair labor practices took place[.]” Here, the regional director requested an order directing Kellogg to cease: refusing to bargain in good faith by insisting to impasse on nonmandatory bargaining proposals; locking out bargaining unit employees; threatening to lock out the bargaining unit employees so as to frustrate its employees’ bargaining rights; and interfering with its employees’ Sec. 7 rights. Observing that the lockout had been ongoing for nine months and deprived employees of their pay and health insurance, and that the administrative process may continue for some time to come, the court concluded that to allow the lockout to continue would place significant hardship on employees. That would undermine the remedial powers of the Board. On the other hand, an injunction ends the lockout and compels Kellogg to negotiate in good faith, and would return the parties to their status prior to the lockout. As a result, the court determined that it was just and proper to grant the regional director’s requested relief.
By Ronald Miller, J.D.

EEOC gets what it wants in Dollar General background check suit discovery dispute

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Granting the EEOC’s motion to compel pre-2008 background screening data and information regarding Dollar General’s business necessity for its criminal background screenings, a federal district court in Illinois found that since the EEOC was alleging a disparate impact on applicants beginning in 2004, pre-2008 data was not just relevant, it was necessary. Nor did it give credence to Dollar General’s argument that the EEOC had to first provide evidence of a disparate impact before the employer was required to provide information related to an affirmative defense it had consistently indicated it would assert. And the court wouldn’t bite at Dollar General’s claim that the EEOC had failed to engage in a good faith effort to resolve the discovery dispute, instead questioning Dollar General’s good faith (EEOC v Dolgencorp, LLC dba Dollar General, July 29, 2014, Wood, A).

Discovery dispute. EEOC challenged Dollar General’s hiring practices, alleging that, since at least 2004, the retailer’s practice of conducting criminal background checks on potential employees has had a disparate impact on African-American applicants. Dollar General objected to providing any information from prior to 2008 and also refused to provide information regarding Dollar General’s business necessity for performing criminal background checks on job applicants, claiming the EEOC first needed to provide evidence of disparate impact before it would have to provide such discovery on its affirmative defense. The parties squabbled, Dollar General requested a Local Rule 37.2 conference to further discuss the issues, and although they had a telephone conference, no agreement was reached.

Whose good faith? As is often the case, Dollar General’s first approach was to complain that the EEOC had failed to engage in a good faith effort to resolve the discovery dispute in violation of local rules. It said it had “tried to reach agreement” by offering to produce the post-2008 data, and it was “willing to negotiate further if the EEOC found a specific reason why the post-2008 data was insufficient ….” This time, however, the court wasn’t having it. Instead, the court said it did not see Dollar General’s offer as a good faith attempt: “In essence, Dollar General offered to produce the same post-2008 data that it had already agreed to provide in its initial responses to EEOC’s discovery requests.” Accordingly, the court would consider EEOC’s motion to compel.

Pre-2008. EEOC sought to compel Dollar General to produce conditional hire and background screen data for the period 2004 to 2008. There was no doubt that the pre-2008 data were relevant: The complaint alleged a disparate impact from Dollar General’s criminal background checks from 2004 to the present. More importantly, pre-2008 data were necessary for the EEOC to establish its affirmative case, because in disparate impact cases, a plaintiff “must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Dollar General’s argument that pre-2008 information was “unnecessary,” because the EEOC could use later data from which to extrapolate what it needed for the pre-2008 period, was simply not supported by the law, said the court.

Burden and expense. Although agreeing that Dollar General’s asserted costs to produce pre-2008 data — 160 man-hours and $16,000 — were significant, the court did not find them disproportionate under Rule 26(b)(2)(iii ) in light of the importance of the information to the resolution of the case. Pointing out that, as alleged in the EEOC’s complaint, Dollar General’s criminal background checks affected thousands of job seekers going back to 2004, the court remarked that “regardless of which party prevails, the case could serve the important purpose of clarifying the legality of an employment practice” that has affected many.

Business necessity. As for the EEOC’s request for information relating to Dollar General’s asserted business necessity for its criminal background checks, the employer claimed that at this stage of the litigation, the EEOC was not entitled to this information because the asserted business necessity is an affirmative defense. Finding this argument “untenable,” the court emphasized that discovery rules explicitly allow parties to obtain discovery that is “relevant to any party’s claim or defense.” Because Dollar General consistently indicated that it would assert a business necessity defense, the EEOC was entitled to discovery regarding that defense.

First show me the evidence. Dollar General also maintained that the EEOC must first provide evidence of disparate impact before it was entitled to discovery on business necessity issues, to which the EEOC countered that no plaintiff is required to prevail on a portion of its prima facie case before being permitted to obtain discovery related to its case in chief. And the court agreed, finding Dollar General’s approach “contrary to one of the most fundamental premises of discovery” — which places the burden on the objecting party to show why a particular discovery request was improper.” Thus, the court would not require the EEOC to assume the burden of proof at the discovery phase in order to take discovery regarding Dollar General’s affirmative defense.

Cost-shifting. Finally, the court was unwilling to shift the cost of Dollar General’s production to the EEOC, which would go against the general presumption that responding parties must bear the expense of complying with discovery requests. While cost-shifting for production of electronically stored information may be appropriate when the data is inaccessible, Dollar General did not argue that the requested information was inaccessible, and the court ordered that it bear its own cost of producing the discovery.
By Joy P. Waltemath, J.D.

NLRB signs off on private settlement resolving bargaining dispute, despite GC’s reluctance

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Sanctioning a private settlement agreement, the NLRB allowed a union to withdraw unfair labor practice charges contending that an employer refused to provide the union with information related to a grievance and to changes to employee health benefits. Despite the General Counsel’s reluctance to sanction the non-Board settlement and the law judge’s denial of their joint motion, the Board cited its longstanding policy of “encouraging the peaceful, nonlitigious resolution of labor disputes,” approved the private agreement, and dismissed the complaint. Member Hirozawa was part of the three-member panel, having denied a motion for recusal brought by the employer’s counsel (McKenzie-Willamette Regional Medical Center Associates, LLC, July 29, 2014). Sec. 8(a)(5) allegations. The union alleged that the employer delayed turning over relevant information that it had requested in connection with a grievance; the employer also refused to furnish information about changes to employees’ health insurance benefits. Two months after the Sec. 8(a)(5) charges went to a Board hearing, the parties filed a joint motion asking the law judge to approve withdrawal of the charges and dismiss the complaint because they had privately settled their dispute. Settlement. In exchange for the union’s withdrawal of charges, the employer agreed to respond to future information requests from the union in a “timely fashion.” It also vowed not to propose any changes to employees’ current health benefits until the parties began negotiations for a successor contract, or to implement any such changes until it reached an agreement with the union (or an impasse). The agreement did not, however, require the employer to turn over the previously requested health benefits information, or to post any remedial notice about its alleged Sec. 8(a)(5) violations. GC objections. The General Counsel opposed the motion, arguing that approval was unwarranted at this late stage of the litigation. He was also troubled by the absence of a Board-approved remedy or an enforcement mechanism in the agreement itself. A law judge denied the motion, finding that the non-Board settlement did not meet the requirements of Independent Stave Co. However, the Board disagreed, and dismissed the complaint. While the General Counsel’s opposition to a proposed settlement “is an important consideration weighing against approval,” and the settlement certainly came late in the litigation process (and thus offered no meaningful conservation of agency resources), countervailing factors outweighed these concerns. Factors favored settlement. The union had not opposed the employer’s request to approve the settlement, and there were no individual discriminates bound by its terms. Nor were there any allegations of fraud, coercion, or duress in reaching the settlement and — contrary to the General Counsel’s assertion—no record evidence that the employer had a history of violating the Act or had ever breached previous settlement agreements. Also, contrary to the law judge and the General Counsel, the Board found the settlement itself was reasonable. The union’s request for health benefits information had been made in response to the employer’s apparent intent to make such changes; the employer’s commitment not to do so “appears to be of substantial value to the Union and would appear to obviate the Union’s immediate need for that information.” Also, the employer affirmatively agreed to timely respond to future requests. And, although the settlement didn’t offer everything that a Board order might have provided (i.e, a cease and desist order and a required notice posting), the lack of a full remedy did not warrant rejecting the settlement here, the Board said. “It is well established that approval of settlements under Independent Stave does not require that the remedies provided by the settlement be coextensive with the remedies that the Board would provide if the General Counsel were to prevail on all of the complaint allegations.” Lack of remedial notice. The absence of a remedial notice was a tough issue, the Board noted, acknowledging that “[a]s a general matter, we do not endorse the settlement of alleged unfair labor practices without a notice to employees of the alleged violations and the actions taken to settle them.” But in this case, there were no alleged violations that resulted in employee discipline or discharges, or involving threats or coercion; the alleged violations had a limited impact on individual employees. As such, the Board saw no need to reject the settlement for lack of a notice-posting requirement. No enforcement mechanism. Finally, while the settlement lacked an express enforcement mechanism, neither did it purport to waive the union’s access to the Board. The union was free to file an unfair labor practice charge over any subsequent unreasonable delays or outright refusals to provide requested relevant information, the Board observed. Moreover, the agreement could be revoked — and the underlying proceedings resumed — upon future noncompliance, or in the face of new unfair labor practices. “With these safeguards in place, the lack of a separate enforcement mechanism does not preclude us from approving this particular settlement.” Recusal motion denied. Member Hirozawa rejected a recusal motion brought by counsel for the employer based on previous “acrimonious” litigation between the attorney and the Communications Workers of America (CWA), whom Hirozawa represented (and had filed counterclaims against counsel on the CWA’s behalf). Hirozawa rejected the contention that his role in that earlier case — some 17 years ago — would cause a reasonable person to question his impartiality here. Nor would a reasonable person conclude that his participation in the case would violate ethical guidelines.
By Lisa Milam-Perez, J.D.

Union’s hardball tactics in hotel dispute crossed the line into secondary boycott

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A union’s strategy of targeting organizations that had made arrangements to reserve large blocks of rooms or spaces with a hotel in the hopes that they would cancel their plans may have crossed the line into unlawful secondary boycott activity, ruled the Seventh Circuit. While a number of the incidents complained of by the hotel were insufficient to support allegations that the union coerced neutral targets or that it used coercion with the intent of forcing the neutral entities not to do business with the hotel, the appeals court found that in three instances, the union engaged in conduct that crossed the line from intent to persuade, to simply interfering with the businesses of the neutrals (520 South Michigan Avenue Associates, Ltd dba The Congress Plaza Hotel & Convention Center v UNITE Here Local 1, July 29, 2014, Tinder, J). Hotel strike. UNITE was engaged in a long-running strike with the Congress Hotel dating back to 2003. In 2008, the union escalated the strike by pursuing a more aggressive strategy. Specifically, the union began targeting organizations that had made arrangements to reserve large blocks of rooms or space at the hotel in the hopes that they would cancel their plans. The union would send delegations to the offices of potential hotel patrons and express the union’s disapproval of their plans to use the hotel. According to the hotel, instead of just using persuasion, the union coerced hotel customers into cancelling their agreements. Claiming that this conduct crossed the line into unlawful secondary labor activity, the hotel filed suit, seeking damages. The district court granted the union’s motion for summary judgment, reasoning its conduct was not coercive and that barring it would raise important free speech concerns. The hotel appealed. Finding that certain of the union’s actions were coercive, the Seventh Circuit reversed. Secondary targets. The hotel alleged that the union engaged in unfair labor practices by targeting secondary targets with the object of forcing them to cease doing business with the hotel. The central question, therefore, was whether the union’s conduct in this case was coercive, as in the sense of a boycott or picket, or persuasive, as in the case of handbilling outside of an establishment. Courts have observed that a defining characteristic of picketing is that it creates a physical barrier between a business and potential customers, thereby “keeping employees away from work or keeping customers away from the employer’s business.” By contrast, peaceable activity that does not create a barrier between customers and the business is typically permitted. The conduct alleged in this case was not satisfactorily described as either picketing or handbilling. On the one hand, the delegates often took written materials with them, including handbills and leaflets. Then again, some of the conduct the described by the hotel was similar to picketing. Moreover, the Seventh Circuit observed, many of the union’s activities were disturbingly similar to trespass and harassment. Trespass and harassment. The court first examined whether trespassing and harassment could count as coercive behavior under federal labor law. A union is permitted some initial entry onto private property so it may convey its views to the decision-makers of a secondary organization. But, even in the context of primary picketing, at some point the trespass becomes unprotected. The Supreme Court has made clear that federal labor law “does not require that [an] employer permit the use of its facilities for organization when other means are readily available.” The same is true of harassment, which relies on the interfering manner of communication, not its content, to accomplish its aims. Here, the union was alleged to have continued contacting targets even after they had made clear that they were not willing to receive delegations. Some of these contacts were physical invasions of private property. Moreover, allegedly frequent and repetitive phone calls and the threats to disrupt events also supported an inference that the union did not intend to persuade but to force neutrals to take sides in its dispute with the hotel. Harassment, if severe enough, could rise to the level of coercive behavior under Sec. 8(b) of the NLRA. As a consequence, the Seventh Circuit concluded that a union may be liable under Sec. 8(b)(4)(ii)(B) for unlawfully coercing a secondary to cease doing business with the struck employer if the union’s conduct amounts to harassment or involves repeated trespass, or both. While trespass and harassment of a secondary organization do not create a symbolic barrier between a business and its customers in the way a picket line does, such conduct may nevertheless significantly disrupt a business and pose a substantial threat to an organization’s finances. Another important point is that the conduct alleged by the hotel was generally targeted at employees, not customers passing by, as in handbilling. Here, the appeals court determined that the union’s decision to repeatedly target secondary employees indicated an intention not to persuade, but simply to interfere. Because the conduct here was concededly directed at secondary actors, it may potentially fall under the ambit of Sec. 8(b) if it is substantially similar to picketing and sufficiently coercive. Free speech concerns. The Supreme Court has cautioned the courts to be careful not to label expressive union conduct as coercive if such an interpretation could interfere or limit free speech. In this instance, it was undisputed that the union delegations all attempted to communicate a message on a topic of public concern. According to the hotel, some of the union’s conduct went too far, and rendered its activities unprotected and illegal. Agreeing, the Seventh Circuit concluded that prohibiting some of the union’s conduct under the federal labor laws would pose no greater obstacle to free speech than that posed by ordinary trespass and harassment laws. Even aside from the ban on secondary picketing, the appeal court found that some of the union’s alleged conduct, such as trespass and harassment, was not protected speech. The union’s harassing conduct could also not reasonably be deemed protected under the First Amendment. Important First Amendment interests were not threatened in this case because the hotel’s complaint was narrowly tailored to address the union’s conduct without reference to the content of its message. Another reason why some of the union’s alleged harassment merited less First Amendment protection was because the union transmitted its messages to an unwilling, captive audience. Finally, the Seventh Circuit concluded that Servette gave the union ample breathing room to express its views by permitting delegates to approach and talk to decision-makers of neutral businesses, even if they are initially uninvited. But once that decision-maker says that she is not interested, and that the union delegates are no longer welcome, the union’s free speech interests start to wane, and the property and privacy rights of the neutral target become dispositive. Thus, if the hotel could provide evidence permitting a reasonable inference that the union essentially committed trespass or harassed secondary organizations, or threatened to do the same, and thereby coerced them to cease their business with the hotel, summary judgment for the union was inappropriate in this case. Crossing the line. With respect to a number of incidents complained of by the hotel, the appeals court concluded that there was no evidence in the record that the union did anything other than attempt to peacefully persuade the neutrals. However, the court reversed summary judgment with respect to the union’s behavior toward three neutrals. In those instances, the hotel demonstrated that the union coerced the neutrals into abandoning their business with it by trespassing in offices and businesses, threatening to disrupt the neutrals’ businesses, and stalking a neutral. Such conduct crossed the line between communication intended to persuade, and was simply intended to interfere with the inner workings of three neutral entities. Accordingly, the Seventh Circuit reversed the district court’s decision in part, remanding for a trial on whether the union’s actions were coercive and, if so, whether and to what extent the hotel was damaged by this coercive conduct.
By Ronald Miller, J.D.

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.