Personal Journal May Be Protected Activity 2019-12-18T09:20:48-07:00

Posted on December 18, 2019

In Fischer v. Sentry Ins. A Mutual Co., an employee kept a log of when she felt sexually harassed or discriminated against by her employer. The log went missing shortly before the company fired her. In her retaliation complaint, the employee essentially asked the Court to infer her employer was aware of the log and that it was no coincidence they fired her after becoming aware of her list of harassment and discrimination. The Court found that although the employee’s theory was speculative, it was plausible, and her retaliation claim survived the employer’s motion to dismiss.

In the end, for the log to constitute protected activity under Title VII, the employee will still be required to prove the employer actually knew of her complaints in the written log. At only the pleading stage, however, the Court steered away from dismissing the claim before the employee had a chance to conduct discovery about her employer’s knowledge and notice of her complaints. The court reasoned that outright dismissal would discourage employees from keeping a written record of discrimination or from planning future lawsuits for fear of retaliation if their notes were found by their employer, and protecting such employee activity is the purpose of the Title VII retaliation provision.

Fischer v. Sentry Ins. A Mutual Co., No. 19-cv-00156-bbc, 2019 U.S. Dist. LEXIS 214434, at *1 (W.D. Wis. Dec. 10, 2019)

Cat’s Paw Revisited 2013-11-08T22:10:49-07:00

Posted on November 8, 2013

By Bill Wright

Stalking the string of “cat’s paw” cases after the Supreme Court’s 2011 decision in Staub v. Proctor Hosp., a former employee recently asserted that his manager’s bias against Hispanics caused the employer to terminate his employment – not because the manager made the decision to discharge the employee, but because the actual decision-maker relied on information from the manager. The former employee’s attempt to scratch the employer failed, because although the manager brought some of the employee’s misconduct to light – including lying on his resume and a supposedly false expense report – the employer and its Human Resources staff independently investigated the allegations. According to this court, an employer is NOT liable for discrimination, even if a biased report from a supervisor is part of the chain-of-events, so long as the employer independently determines that, apart from the report, the discharge is entirely justified. A computer search and an HR investigation may be all it takes to justify a termination. Of course, it helps, as in this case, if the former employee admits both that he “technically” lied in his interview and on his expense report. Lobato v. New Mexico, No. 12-2128 (10th Cir. November 5, 2013).

Avoiding Dukes 2013-10-22T20:00:46-06:00

Posted on October 22, 2013

By Andy Volin

Female employees at national employers claim systemic pay discrimination in a variety of settings. The most famous example is the Supreme Court’s 2011 decision in Wal-Mart Stores, Inc. v. Dukes. There, the Supreme Court ruled that a nationwide class action for female workers was improper because individual stores had discretion to set wages and so, there was no common national policy upon which to base a nationwide class action.

Female store managers at Family Dollar Stores persuaded the Fourth Circuit that their case is different from Dukes. Rather than focusing on store-level compensation decisions, they claim decisions about their salaries are made at the national level. E.g. national policies set minimum and maximum salary ranges and different salary structures for promotions as opposed to external hires. High level employees, e.g. Vice Presidents and Regional Managers, exercise discretion to decide salaries within the national requirements. The female store managers allege this high level discretion is exercised in a common way and with common instructions that favor men at their expense.

Although the female store managers won this battle, the court’s decision was a narrow procedural ruling, and they may not win the war. The Fourth Circuit allowed the plaintiffs to amend the complaint, but the ruling does not mean that the case will ultimately be granted nationwide class status. Scott v. Family Dollar Stores, Inc., No. 12-1610 (4th Cir. Oct. 16, 2013).

Temporary Work Assignments and the FMLA 2013-10-08T21:06:13-06:00

Posted on October 8, 2013

By Bryan Stillwagon

An employee in a 90-day temporary assignment alleged FMLA retaliation when her employer returned her to her permanent position after she left work to care for a terminally ill uncle. Although she admitted her absence wasn’t covered under the FMLA, she argued the defendant was equitably estopped from disputing her FMLA eligibility because her manager had approved her request for “emergency leave” and “a[n] FMLA package.” In Dawkins v. Fulton Cnty., No. 12-11951, 2013 WL 5422977 (11th Cir. Sept. 30, 2013), the Eleventh Circuit affirmed summary judgment for the employer, finding the employee failed to establish a prima facie case of equitable estoppel. The plaintiff did not rely on any misrepresentation because she had already planned to leave work regardless of her FMLA eligibility and before she received her manager’s approval. Moreover, she’d previously taken FMLA leave and was familiar with the company’s FMLA policy, so any reliance would have been unreasonable.

It’s Hard to Prove You “Would Have” When You Didn’t 2013-10-04T22:19:57-06:00

Posted on October 4, 2013

By Karla Sanchez

Recently, an employer failed to prove it would have fired an employee without regard for his FMLA request. In Ion v. Chevron USA, Case No. 12-60682 (5th Cir. Sept. 26, 2013), the plaintiff, a laboratory chemist, was granted custody of his child in a divorce, resulting in a loss of focus at work. Further insubordination and poor performance resulted in a suspension. While on suspension, the plaintiff obtained a doctor’s note excusing the plaintiff from work due to “too much stress.” While his request for FMLA was being processed, the plaintiff got angry about a request to sign a medical release, and clinic employees complained. At the same time, the employer learned from one of the plaintiff’s co-workers that the plaintiff had said he intended to fake a breakdown so that he wouldn’t have to work. The employer decided to terminate the plaintiff’s employment. The termination letter explained the termination was for the reasons underlying his suspension, saying he was going to fake a breakdown, and failing to come back to work after the suspension.

Applying a mixed-motive analysis, the court put the burden on the employer to show it would have fired the plaintiff regardless of his request for FMLA leave. The employer failed the test: insubordination and poor performance were legitimate reasons for employment action, but the employer had already shot the bolt on that – it chose to suspend the plaintiff, not to fire him. The employer had never investigated the story that the plaintiff planned to fake a breakdown, and the angry outburst over the release was not a reason for termination stated in the letter.

Courts will scrutinize the reasons given to support adverse employment actions. Don’t just take someone’s story as conclusive — investigate.

Kick the Habit, ADA Style 2013-08-14T18:27:41-06:00

Posted on August 14, 2013

By Bryan Stillwagon

Imagine your employee tells you he has a drug problem and wants help. Under your policies, you give time off for treatment. The employee detoxes, but leaves the program before “treatment.” Imagine you send him back to complete the program and he leaves again after one day. Now what? His drug addiction is an ADA “disability.”

A recent case gives one answer. Shirley v. Precision Castparts Corp., No. 12-20544 (5th Cir. Aug. 12, 2013). In this case, the facts are those imagined above. The employee nearly overdosed on Vicodin, took leave to receive treatment for drug addiction, and prematurely dropped out of the program—twice. The employer discharged him rather than let him return to work, anticipating further drug use. The court held the employee is not a “qualified individuals” because he is “currently engaging” in illegal drug use. Current use includes use that is “sufficiently recent” to justify the employer’s belief that the abuse remains a problem.

An employer might have a reasonable basis to expect continued drug use when an employee fails a drug rehabilitation program. The employee might claim he will kick the habit on his own, but you don’t have to run an unreasonable risk of drugged employees running your heavy equipment.

Look! No Hands. 2013-07-31T15:29:09-06:00

Posted on July 31, 2013

By Bill Wright

When you look for evidence disassociating a manager from a hiring decision, the manager’s emails claiming credit for the decision don’t help. In a recent unpublished case, an employer needed to hire a scheduler. A former employee with experience was the obvious choice, but when the supervisor suggested his name, the site director said the candidate was too old and his wife had cancer. The site director also sent his boss a “confidential email” claiming to have “put the nix” to hiring the candidate “for . . . reasons that I can only tell you.” The cited reasons included the candidate’s age and medical problems, the candidate’s wife’s cancer, and the candidate’s (otherwise undocumented) bad attendance record. When the supervisor protested that considering the candidate’s age and relationship to a person with cancer would be “a felony,” the site directed stated, “Look, [the candidate] is old.” The director also threatened to discipline the supervisor for insubordination. The candidate did not get an offer.

With this recitation of the facts (taken in the light most favorable to the former candidate), it is not surprising that the Fifth Circuit Court of Appeals found enough evidence of the site director’s bias and involvement in the hiring decision to send the case to trial. EEOC v. DynMcDermott Petrol. Ops. Co., No. 12-40424 (5th Cir. July 26, 2013).

NB: “confidential” emails do not exist.

In An Employee’s Shoes 2013-07-19T22:16:49-06:00

Posted on July 19, 2013

By Bryan Stillwagon

How to avoid paying overtime and to evade pesky employment laws? Treat your workers as “independent contractors.” Problem solved. Or maybe not. An appellate court has reminded employers again about the costly consequences of misclassification.

In Scantland v. Jeffry Knight, Inc., No. 8:09-cv-01985-EAK-TBM, 2013 WL 3585635 (11th Cir. July 16, 2013), the Eleventh Circuit considered the classification of a group of current and former technicians who installed and repaired cable, internet, and digital phone services. The Court found the technicians walked the “usual path of an employee.” The company exercised significant control over the technicians, dictated the technicians’ opportunity for profit and loss by controlling work orders, and created exclusive and lengthy relationships with the technicians. Those factors demonstrated the technicians were economically dependent upon the company and thus required the employer to classify the workers as employees.

Plaintiffs’ attorneys—and, more recently, both state and federal Departments of Labor—continue to seek out employers who have misclassified their independent contractors, often resulting in substantial judgments and settlements for current and former employees. There’s no better time than now to evaluate your own workforce and prevent costly classification mistakes.

$3.5M in Punitive Damages Vacated 2013-05-21T21:42:42-06:00

Posted on May 21, 2013

An employer avoided $3.5M in punitive damages by proving it took sufficient steps to stop and prevent harassment. Otto May Jr. v. Chrysler Group, LLC, Nos. 11-3000 & 11-3109 (7th Cir. May 14, 2013). In this case, the plaintiff was subjected to dozens of threats and derogatory graffiti messages, from 2002 until 2005, based on his race, religion, and national origin. He complained to his employer about the co-worker harassment. He specifically asked the employer to install cameras near his work station; the employer did not. He provided a list of nineteen employees that he suspected of involvement in the harassment, but the employer never formally interviewed the employees. Still, the employer did take multiple steps to ameliorate the harassment, including hiring a forensic document investigator to help identify the source of the harassment, and the harassing conduct did eventually cease. The court reasoned that, “while far from perfect, [the employer’s] actions did have a positive effect on the harassment” and held there was no evidence in the record to support the jury’s finding that the employer acted with the requisite “malice” or “reckless indifference” to uphold an award for punitive damages.

This employer’s “far from perfect” response to a harassment claim may have been enough to avoid punitive damages, but it takes something close to perfection to avoid a verdict in the first place.

Sexual Assault Was Not Sexual Harassment 2013-04-15T15:35:20-06:00

Posted on April 15, 2013

By Andy Volin

A security guard and her husband thought she had claims for harassment and retaliation after she was sexually assaulted (unwanted kissing and groping) at work by an employee of a customer, but the First Circuit recently upheld the dismissal of her claims on summary judgment. The harassment claim failed because the employer had a strong anti-harassment policy in place, and the alleged victim never reported that the customer’s employee was sexually harassing her before the assault occurred. Instead, she had only complained about a couple of phone calls that bothered her. That was not enough to put her employer on notice that the customer’s employee was sexually harassing her. After she reported the assault, the customer’s employee was immediately moved to a different city, ending any potential for further harassment.

Her retaliation claim failed as well. She claimed her employer reduced her hours after she reported the assault, but work records showed that wasn’t the case. She also complained that a person conducting sexual harassment training singled her out for humiliating questions at a training session, but that person did not know about her sexual assault, and so the questions could not be considered retaliation for reporting it. Medina-Rivera v. MVM, Inc., No. 11-2419 (1st Cir. Apr. 10, 2013).

The case is a good reminder that employers must have robust anti-harassment policies in place, and those policies must address harassment both by co-workers and by outsiders who have access to employees as a result of their jobs.

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