Physician Who Threatened Co-Workers Lacks ADA Bias Claim
Approximately 10 years after beginning work at a county hospital, an anesthesiologist was diagnosed with a cancerous lip lesion. After an early course of treatment, the anesthesiologist told a friend that if the cancer had spread he planned to kill his supervisor and other hospital staff members. The friend filed an incident report with the local police department, which was subsequently provided to the hospital. Both local police and the FBI investigated the threats and informed hospital administrators that they considered the threats credible. The hospital’s medical director suspended the anesthesiologist and ordered him to undergo psychiatric evaluation. After three months of private therapy, the anesthesiologist was cleared to return to practice, but not to work in situations that were “emotionally, politically, or interpersonally charged.” A county psychiatrist interviewed the anesthesiologist and concluded that he exhibited paranoia and other conditions which made the psychiatrist concerned for the anesthesiologist’s own safety. A disciplinary hearing by the county resulted in the anesthesiologist’s discharge. The anesthesiologist sued the county hospital under the Americans with Disabilities Act (ADA), alleging disability discrimination, failure to accommodate, retaliation, and violations of his due process and first amendment rights. The U.S. Court of Appeals for the Seventh Circuit held that an employer’s duty is to accommodate a disability, not conduct. Further, even if the hospital regarded the anesthesiologist as disabled, it had shown that it had a legitimate nondiscriminatory reason for its termination which was not a pretext for discrimination. The issue, the court held, was only “with the honesty of [the] County’s beliefs” that the anesthesiologist had threatened physical harm to his co-workers, not whether the decision to terminate was wise or a necessary precaution. Employers confronted by a potential ADA claim must ensure that any adverse actions taken are premised on a nondisability based reasons.
Bodenstab v. Cook County, No. 08-1450 (7th Cir. June 22, 2009)
Contact for more information: Tom H. Luetkemeyer
Verbal Time System Complaints Are Not Protected Under the FLSA
An employee at a plastics manufacturing plant was required to use a time card to swipe in and out of work at time clocks located throughout the plant. On three occasions in 2006, the employee was issued disciplinary warnings (one verbal and two in writing) for failing to properly use the time clock system. Under the employer's progressive discipline policy, the employee was warned on each occasion that the same or any other violation with a 12-month period would result in additional discipline, up to and including termination. The third warning was accompanied by a one-day suspension. Just before the employee received the third warning, he began to complain to supervisors about the location of the time clocks. He claimed that they were positioned in a way that prevented employees from being paid for time spent donning and doffing necessary protective gear. The employee claimed to have complained about the clocks to his lead operator, his shift supervisor, and even to a company human resources representative, including mentioning the possibility that he might file a lawsuit over the issue. About one month after his third disciplinary warning, the employee received a fourth warning for failing to swipe in and out of work. He was first suspended, and then later terminated. The employee sued under the Fair Labor Standards Act (FLSA), claiming that the employer retaliated against him on the basis of his verbal complaints about the timekeeping system. The U.S. Court of Appeals for the Seventh Circuit held that an employee who complains about time clock irregularities to supervisors has no retaliation claim under the FLSA unless the complaint is in writing. The court noted that the FLSA’s retaliation provision prohibits termination of an employee “because such employee has filed any complaint,” holding that the term “filed” indicates congressional intent to require a written complaint. Employers must be careful to provide timekeeping systems which account for an employee’s donning and doffing of protective equipment. Employers should take complaints about timekeeping systems seriously, and be very careful when making termination decisions in the face of timekeeping complaints.
Kasten v. Saint-Gobain Perf. Plastics Corp., No. 08-2820 (7th Cir. June 29, 2009)
Contact for more information: Daniel L. Farris
Evidence Supports Termination of Sole Male Employee in Group After Porn Found On Computer
A hospital employed seven respiratory therapists, six of whom were females, and all of whom shared one computer. Although each therapist had a unique log-in code, the standard practice was for the first person to log-in to remain logged-in for the remainder of the day. After links to pornography websites were found on the computer, the hospital determined that the male employee’s log-in was in use when the links were added to the computer. The male employee denied that he had accessed the websites, and the hospital responded by having its IT department perform an investigation and comparing the results to the therapists’ respective work schedules. The analysis established that many of the websites at issue were accessed on a Saturday when only the male employee was scheduled. The male employee was terminated, and he subsequently filed a gender-discrimination suit. The suit essentially alleged that the hospital discriminated against the male employee by beginning its investigation with him as the prime suspect. The U.S. Court of Appeals for the Seventh Circuit rejected this argument, ruling that the hospital’s investigation firmly established that the decision to terminate the male employee was based on a legitimate belief that he had accessed pornographic websites while at work. This case demonstrates the importance of always performing a sufficient investigation into the facts before taking an adverse action based on alleged misconduct. Without the evidence regarding the male employee’s usage on one specific day when he was the only employee working, this case could have survived beyond summary judgment, thereby resulting in dramatically increased litigation costs and/or the likelihood of settlement.
Farr v. St. Francis Hospital and Health Centers, No. 08-3203 (7th Cir. June 29, 2009)
Contact for more information: Scott M. Gilbert
Auditor Must Complain of Harassment Within a Reasonable Time
The supervisor of a female auditor for the Pension Benefit Guarantee Corporation became increasingly sexually inappropriate during the course of one summer. The supervisor made disparaging comments about the auditor’s fiancée and made sexually suggestive comments to her on a number of occasions. When the auditor threatened to report the harassment, the supervisor replied that no one would believe her because he was perceived as a “nice guy” by co-workers and supervisors. The alleged harassment continued for a period of approximately nine months. After the supervisor allegedly became physically threatening, the auditor complained internally to company officials. According to the auditor, her supervisors thereafter became increasingly critical of her performance in evaluations, and she was subjected to more stringent application of workplace rules and improper discipline, resulting in her pay ultimately being temporarily withheld for a typographical error on a leave request form. The auditor sued alleging sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, as amended. The U.S. Court of Appeals for the District of Columbia Circuit held that the employer established an affirmative defense because the auditor had failed to complain of the harassment early enough for the employer to act to remedy the situation. The court ruled that an employer could not be liable for the harassing behavior of an employee unless the harassed employee timely complained and the employer thereafter failed to take appropriate and effective remedial action. In this case, the court held, the employee had allowed the harassment to go on for months, and when she finally did complain, it was stopped. Employers should maintain clear and well-promulgated anti-harassment policies and procedures and act on complaints quickly and thoroughly.
Taylor v. Solis, No. 07-5401 (D.C. Cir. July 10, 2009)
Contact for more information: Paul J. Cherner
Evidence of Illegal Status Insufficient to Invalidate Settlement Agreement
After its employees certified a union, an employer terminated about 20 employees. The union filed an unfair labor practice charge with the National Labor Relations Board (Board). The parties reached a settlement agreement, which the Board approved, reinstating the employees with back pay. The employer subsequently refused to comply with the terms of the agreement, however, asserting that it had evidence that many of the employees seeking reinstatement were not authorized to work in the United States, thereby invalidating the settlement agreement. In support of its position, the employer pointed to U.S. Supreme Court precedent establishing that illegal aliens are not entitled to back pay because doing so would violate the Immigration Reform and Control Act. The U.S. Court of Appeals for the Ninth Circuit rejected the employer’s position, and distinguished this case from the Supreme Court precedent because the amount of monetary damages owed were not related to an employee’s ability to work. Instead, they represented the employer’s evaluation of the value of ceasing litigation. With respect to the rehire provision of the settlement agreement, the court held that the employer would only be absolved of its obligation if it could produce “proper proof” of an individual’s illegal status. Employers should be aware that the illegal status of an employee may not prevent the individual from receiving the benefits of an otherwise valid settlement agreement.
NLRB v. C&C Roofing Supply, Inc., 08-70335, (9th Cir. Jun. 25, 2009)
Contact for more information: Penelope M. Lechtenberg
Employer Liable Under USERRA for Supervisor’s Anti-Military Animus
A railroad company employee averaged three to five days of work per week because of his U.S. National Guard obligations. The employer considered the employee’s several military-related absences to demonstrate an “unacceptable work record” and placed him on furlough status. The employee requested and was granted a transfer to another railroad district. The employee reported to work in the new district accompanied by a military representative to meet with the employee’s supervisor to explain and show proof of the employee’s impending absence due to military training. The supervisor rejected the employee’s military-related paperwork and denied the military representative’s ability to audiotape or be present at a meeting with the employee. During the meeting, the supervisor ordered the employee to report for work at another location and would not guarantee his work schedule. The employee refused to report and was subsequently terminated for insubordination. The U.S. Court of Appeals for the Sixth Circuit held that the railroad violated Uniformed Services Employment and Reemployment Rights Act (USERRA) by discriminating against military personnel. The court stated that the supervisor’s “anti-military animus” could be attributed to the employer, despite the supervisor’s lack of authority to investigate or terminate the employee, because the termination occurred within a close period of time to the employee’s request for military leave. Further, the assistant superintendent directly responsible for the employee’s termination had been found to have criticized the employee for military-related absences and the employer failed to otherwise prove a nondiscriminatory reason for the termination. Although the case was remanded for a re-calculation of damages, the court stated that the employee would be entitled to back pay, actual damages and taxes granted under the Railroad Retirement Tax Act. Employers should be cautious in taking adverse employment measures against employees who have military obligations, unless additional factors justifying the action are present.
Hance v. Norfolk S. Ry. Co., No. 07-5475 (6th Cir. July 1, 2009)
Contact for more information: Daniel L. Morriss
Mandatory Retirement Policy for Police Officers Upheld
In 2003, the Commonwealth of Puerto Rico amended its mandatory retirement law for law enforcement officers, requiring retirement at the age of 55 if the employee has completed 30 years of service. After the amendment, officers in the Puerto Rican police department were given 30-days’ notice to submit their retirement paperwork. More than 23 former police officers sued the Commonwealth, arguing that the mandatory retirement law violated the Age Discrimination in Employment Act (ADEA) as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The U.S. Court of Appeals for the First Circuit held that the Puerto Rico law fell within an exemption to the ADEA allowing state and local governments to set mandatory retirement ages for public safety officers. The court rejected an interpretation of “subterfuge” that would have effectively nullified the exemption, finding that “using age as a basis for requiring retirement is exactly what Section 623(j)(2) of the ADEA entitles the Commonwealth to do.” In addition, the court dismissed plaintiff’s constitutional claims, holding that the former police officers had no protected property interest in their jobs after the age of retirement. The court also said the Puerto Rico law survived the equal protection challenge because it served a legitimate legislative purpose of assuring public safety. Public employers should be careful to base mandatory retirement policies on safety and ability, not on age alone.
Correa-Ruiz v. Fortuno, No. 06-2578 (1st Cir. July 7, 2009)
Contact for more information: Jennifer M. Ballard
Employer Liable for Overtime Where Employee Failed to Record Overtime Hours
An employer required all of its hourly employees to keep track of their own hours for overtime purposes. In recording his hours, an hourly employee did not include time that he spent attending safety meetings and performing other peripheral tasks related to his position. According to the employee, the employer berated him when he reported overtime, and accused him of giving himself a pay raise. Instead of overtime, the employer instituted a policy of flex time, where the employees were supposed to cut short work days in order to account for the longer hours necessitated by the meetings and other tasks. The employee sued, alleging that he was owed overtime for the time he spent at meetings and performing other tasks that he did not record on his timesheet. The employer's defense was that it could not be liable for overtime because the employee did not record the alleged overtime in his timesheets. The jury found that the employer knew or should have known that the employee worked hours for which he did not receive overtime. The jury also found that the employer willfully violated the Fair Labor Standards Act (FLSA), which resulted in the employer having to pay overtime that allegedly accrued over the prior three-year period, instead of over the prior two-year time period for non-willful violations. Additionally, the FLSA provides that an employee is entitled to liquidated damages, or double the amount of proven damages, unless the employer proves that: (1) the violation occurred in good faith, and (2) the employer had reasonable grounds for believing that the act was not a violation of the FLSA. Based upon the jury finding of willfulness, the employee was automatically awarded liquidated damages. It should be noted that although not all federal circuits are consistent in the manner of determining liquidated damages, employers should be diligent to ensure that all employees properly record all hours worked or they may be considered to have committed willful conduct.
McGrath v. Central Masonry Corp., No. 06-002240-CMA-CBS, (D. Colo. July 8, 2009)
Contact for more information: V. Brette Bensinger
Small Illinois Governmental Non-Public Safety Unions May Have Greater Bargaining Power
Senate Bill 1715 has passed the Illinois Senate and the Illinois House of Representatives and is presently awaiting action by the governor. Inspired by the Employee Free Choice Act, the bill amends the Illinois Public Labor Relations Act by setting ground rules for the bargaining of first contracts between the state’s public employers and small units of nonpublic safety personnel. The bill is noteworthy because it extends binding interest arbitration rights—which in Illinois have previously been available only to public safety personnel—to all public bargaining units of less than 35 members. Bargaining must begin not later than 10 days after the newly-certified bargaining unit submits a written request. The parties then have 90 days to negotiate, after which time either party may request mediation. The request for mediation extends the timeframe in which to reach an initial agreement by 30 days. If the parties still are unable to reach agreement, either party may then compel binding interest arbitration. Additionally, Illinois’ nonpublic safety employees would retain their right to strike at any time up to beginning of the arbitration hearing. Because they would be capable of both striking and compelling interest arbitration, small nonpublic safety bargaining units in Illinois will have significantly greater bargaining power if SB 1715 becomes law.
Contact for more information: Lori Hoadley
Hinshaw Attorney Profile ― Clint D. Robison
Clint D. Robison, a Labor & Employment group Partner in Hinshaw & Culbertson LLP’s Los Angeles office, has recently been quoted in several media pieces on the subject of workplace sexual harassment involving text messaging. Articles in which he is quoted extensively have appeared in The National Law Journal and its website, as well as on Law.com and The AmLaw Daily. Mr. Robison was also interviewed on the subject by The Legal Broadcast Network in a piece that aired on July 23, 2009.
Clint Robison is a highly regarded employment attorney who provides both counseling and litigation services to public and private companies. He handles all aspects of employment litigation and advice, including wage and hour matters, discrimination claims, employment contracts, trade secret issues, retaliation claims, sexual harassment claims, and Americans with Disabilities Act (ADA) issues. Click here for more information.
This newsletter has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.
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