Did the car hit the employee or the employee hit the car? This is not the beginning of a logic problem – it’s the question one employer recently encountered when investigating a “he-said, he-said” workplace dispute. Based on the investigation, the employer determined that the employee had lied about the contact with a company vehicle that left the employee bruised. The employer terminated the bruised employee and not the driver. The employee, of course, sued. The Tenth Circuit affirmed what should be obvious but somehow repeatedly becomes an issue in so many cases – can an employer terminate an employee if the employee disputes the allegations against him? So long as the employer (not the employee) “reasonably believed at the time of the termination that the [employee] had violated company policy” and the employer “acted in good faith upon that belief” the answer is an unequivocal yes. “Pretext” is not proven by an employee’s continued insistence that his employer should have believed him over another employee. Even if the employer “got it wrong,” being wrong on a fact dispute during an investigation is not evidence of discrimination. Another reminder of the importance of effective, and well documented, investigations.
By Bill Wright
The Tenth Circuit Court of Appeals has faced one of the least litigated issues under the ADA. Is a failure to accommodate the restrictions of a disabled employee, itself, an adverse employment action? Answer: no.
Almost all ADA failure to accommodate cases arise when the employee is let go because he or she is unable to do the essential functions of the job, but the employee contends a reasonable accommodation would have been possible. In all those cases, the employee has been discharged—a clear adverse employment action. But what happens if the employer and employee engage in the interactive process, run out of ideas for accommodations, and just don’t address the issue again? The employee continues in the job, without discipline and without discharge. Is there an actionable failure to accommodate claim?
In Exby-Stolley v. Bd. Of Cnty Comm’rs, No. 16-1412 (10th Cir. Oct. 11, 2018), the circuit court analyzed the text of the ADA and ruled that substituting “failure to accommodate” into the anti-discrimination provision still leaves the requirement to show the failure was “in regard to” application procedures, hiring, advancement, discharge, compensation, training, or other terms and conditions of employment.
Of course, we can’t take this too far. If the employee is unable to enjoy the benefits of employment or is materially and adversely affected in performing the job, those might supply the necessary adverse employment action. The key here is that the employer does not run out of time to continue the interactive process so long as the employee has not suffered an adverse employment action.
By Andy Volin
The Tenth Circuit recently announced that employees who prove they are owed wages under both Federal and Colorado state law may be entitled to the unpaid wages, plus penalties under both statutes, possibly recovering more than treble damages. Under the Fair Labor Standards Act (“FLSA”), if an employee proves a violation of minimum wage or overtime requirements, generally the employee not only receives their unpaid wages, but also “liquidated damages” in an equivalent additional amount. The purpose of liquidated damages is to compensate the employee for the delay in being paid. A court may choose not to award liquidated damages, if the employer had a reasonable good faith belief that the employee was not entitled to the wages, but awarding liquidated damages is the usual remedy.
Colorado’s Wage Act does not provide for liquidated damages, but it does provide for penalties of varying amounts, depending on the amount recovered and whether the violation was willful. In certain circumstances, those penalties may exceed the disputed wages.
In Evans v. Loveland Automotive Investments, Inc., No. 15-1049 (10th Cir. Dec. 10, 2015), an employee proved he was owed wages, but asked for both liquidated damages and penalties. The trial refused to award both, calling these remedies “duplicative.” The court awarded only the larger amount under the Wage Act and prejudgment interest. On appeal, the Tenth Circuit ruled that the remedies are not duplicative, and the court may award both. Liquidated damages compensate the employee for the delay in getting paid, while penalties under the Wage Act punish the employer. The only solace for the employer in this ruling is that if the district court awards liquidated damages, then it should not award prejudgment interest, because those remedies are duplicative. Both compensate the employee for the delay in being paid.
By Andy Volin
Firing someone right after they complain of discrimination can result in a retaliation claim, even if the employer thinks it has a good reason unrelated to the complaint. The Tenth Circuit just upheld a jury verdict in this situation, despite the employer’s assertion that it discharged the plaintiff for submitting fake letters from prior employers. Zisumbo v. Ogden Regional Medical Center (10th Cir. Sept. 4, 2015). The problem with the employer’s case was that it had the fake letters for months and only investigated after the employee complained of discrimination.
The outcome could have been worse for the employer, however, because the court refused to instruct the jury on punitive damages. The Tenth Circuit agreed that the employer had provided evidence of its “good faith efforts” to comply with the law, such as having appropriate policies, training, and enforcement of anti-discrimination policies. This was sufficient under previous Supreme Court cases. See Kolstad v. American Dental Assn., 527 U.S. 526 (1999). The fact that both management and the HR dept. apparently engaged in retaliatory conduct was not enough to defeat this defense.
The U.S. Supreme Court just issued its much-awaited religious discrimination decision in EEOC v. Abercrombie & Fitch, 575 U.S. ___ (June 1, 2015) (No. 14-86). Samantha Elauf applied for a job with A&F and was denied the job because she wears a headscarf or “hijab” as part of her faith. A&F deemed all headwear a violation of its “look policy”. The EEOC obtained summary judgment at the trial court level, but the 10th Circuit reversed, holding that, to later claim failure to accommodate, Elauf had to have actually requested religious accommodation.
In an 8-1 decision, the Supreme Court held that Title VII does not give employees an affirmative duty to request religious accommodation. According to Justice Scalia, the 10th Circuit had confused knowing (e.g., did the employer know a religious accommodation was necessary) with intending (e.g., did the employer intend to reject her application because a religious accommodation might be necessary). According to the Court, knowledge is mostly irrelevant under Title VII.
It is critically important to note that, in this case, A&F had some knowledge that Elauf’s hijab was a religious practice. The Court states that its decision does not address whether an employer violates Title VII by taking action against an employee because he or she engages in some practice, if the employer has no idea that the practice is religious. The case only stands for the idea that an employer may not stick its head in the sand to avoid accommodating a religious practice when the employer “at least suspects” that the employee’s practice is, in fact, religious in nature.
By Andy Volin
The Americans With Disabilities Act permits an employer to deny employment to a person who would create a “direct threat” to the safety of himself or others in the workplace. A company with a warehouse operation refused to place a blind employee into its warehouse, asserting this defense, and the EEOC persuaded a jury to rule against the warehouse. The Tenth Circuit just reversed the outcome, because the direct threat jury instruction was wrong. EEOC v. Beverage Distributors Co., No. 14-1012 (10th Cir. Mar.16, 2015). The jury instruction required the warehouse to prove that the employee created a direct threat and that there was no reasonable accommodation possible. That was more than the law required, according to the court. The warehouse only had to prove it had a reasonable belief that the worker would create a direct threat, not that he actually did so. That distinction could have affected the outcome, and so the case was sent back for another trial.
Is 6 months’ leave a reasonable accommodation? “Unsurprisingly, the answer is almost always no,” says the Tenth Circuit. Hwang v. Kansas State University, No. 13-3070 (10th Cir. May 29, 2014). Applying the Rehabilitation Act (which mirrors the ADA but applies to federal government employment and organizations receiving federal financial assistance), the court considered the case of an employee on a one-year contract who had taken six months’ leave for cancer treatment. After exhausting all leave available under the employer’s policies, the employee asked for more. The employer denied the request and discharged her because she could not yet return to work. The employee sued, claiming the employer failed to provide a reasonable accommodation.
The court began with the obvious – a medical leave might enable an employee to perform his or her job following the leave, and most employees are allowed to miss some work for illness; so some leave may be a reasonable accommodation. However, finding the outer limit of “reasonable” leave is another question. Factors to consider include the employee’s duties, the nature and length of the leave requested, and the impact the leave will have on other employees. The court ruled that, in most cases, a leave of six months or more will not be reasonable; an absence of six months is (usually) inconsistent with performing a job’s essential functions.
By Bill Wright
The Tenth Circuit has reviewed several of the most common attacks on hiring and promotion decisions and provides words of comfort to employers. Conroy v. Vilsack, No. 11-4091 (10th Cir. Feb. 11, 2013). Here, both a female candidate and a male candidate were qualified for a promotion to a manager position. Giving priority to leadership and management skills over technical skills, a panel reviewed the applications, spoke to references and recommended the male candidate. The decision-maker checked with the female’s supervisor and the supervisor also recommended the male candidate. The decision-maker then followed the panel’s recommendation.
The female candidate argued the employer hid its discrimination by (a) falsely saying it gave priority to leadership and management skills; (b) diverging from its standard practice when the decision-maker called the female candidate’s supervisor; and (c) relying on subjective criteria – leadership and managerial skill. The court disagreed on all points. All the promotion panel members agreed that leadership and management skills were weighed more heavily than technical skills. The panel reviewed the candidates’ references, and the decision-maker did nothing improper by collecting additional information about the female candidate from her supervisor. Finally, the court noted that “some subjectivity is to be expected in every hiring decision.”
This court understood employment decisions. Even if leadership and management are somewhat subjective, its fair and transparent system protected the employer from the plaintiff’s claims.
By Bill Wright
The Tenth Circuit Court of Appeals has identified one way in which corporations aren’t people: corporations can’t suffer a hostile work-environment. Allstate Sweeping, L.L.C. v. Black, No. 12-1027 (10th Cir. February 7, 2013). In this case, a woman-owned power-washing company alleged (among other claims) that an African American municipal employee created a hostile work environment in violation of 42 U.S.C. § 1981. Specifically, Allstate Sweeping LLC asserted that Black made its contract with the city unprofitable and made its owners’ lives miserable. The Tenth Circuit noted: A hostile work-environment claim requires proof that the plaintiff was offended by the work environment. “Being offended presupposes feelings or thoughts that an artificial entity (as opposed to its employees or owners) cannot experience.” (Emphasis in original.)
So even if you have a corporation with a heart, it’s still not a person–at least according to the Tenth Circuit.
By Sarah Peace
It is important to proceed cautiously and meticulously even with a court-approved settlement of an employee’s claims. In Walters v. Wal-Mart Stores, Inc., No. 11-5130 (10th Cir. Jan. 8, 2013), a plaintiff brought race, disability, gender, and age discrimination claims against his employer. They reached a settlement agreement in a conference with a magistrate judge. They signed a brief memorandum: X dollars for a full release. But when the defendant’s lawyers prepared a formal agreement, complete with bells and whistles, the plaintiff refused to sign. The district court enforced its memorandum and the plaintiff appealed.
The plaintiff argued, in part, that the court should not have enforced the memorandum because he was not given twenty-one days to consider its terms. The Tenth Circuit rejected this argument because the twenty-one day requirement, generally applicable to the waiver of age discrimination claims, does not apply to the settlement of a court case. However, the Tenth Circuit pointed out that the plaintiff’s waiver of his age claim may not have been “knowing and voluntary” as required by the Age Discrimination in Employment Act (“ADEA”) because he may have had insufficient time to consider the agreement and that the memorandum did not specifically mention the ADEA.
The pro se plaintiff in this case was out of luck because he failed to raise these arguments, but if you are ever in the employer’s position, you might not be so lucky. Be sure any release of age discrimination claims mentions the ADEA and is “knowing and voluntary.”