Bad facts made bad law. Sometimes the bad law is so bad that it, as a practical matter, will spread like waves and ripples from a boulder into a pond. So it is with the Sixth Circuit's recent decision in Gillis v. Miller.
The case arises in the Bay County, Michigan jail. It seems that an inmate was unable to receive treatment at the jail for a medical condition, and a deputy jailer decided to help him out. The deputy's wife worked as a dental assistant and obtained a prescription in her name for a periodontal mouth rinse. The deputy scratched his wife's name off the label and placed the prescription in a jail office with specific instructions about giving the medicine to the inmate. This good deed apparently provoked a firestorm of rumors in the jail regarding drugs being introduced into it and an investigation into potential prescription drug trafficking at the jail ensued.
Two deputy jailers, Gillis, who was the President of the Bay County Correction Officers Union, and Walraven, a sergeant, crafted and had posted a memorandum to their fellow deputy jailers regarding their rights under the Supreme Court's decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), commonly referred to as "Weingarten rights." Both the majority and the dissent opinions quote the memo so we will also:
Hello everyone I would like to express my gratitude in being your Union President. I feel there is a very important issue that needs to be discussed. Many deputies have been notified they need to report to a superior officer for some type of investigatory interview or investigation. When you are summoned before a superior officer, I strongly suggest you state these words before you say anything else. "If this discussion could in any way lead to me being disciplined or discharged, I request my Union representative be present at the meeting. Without representation, I choose not to answer any questions." These rights also cover yourself in the event someone else may be discipline due to your statement. I am in no way advising you not to cooperate with management, just advising you of your rights.
It is your responsibility to ask for the representation. It is not the responsibility of management to advise you of this. Attached are the actual Weingarten Rights. Please review them as they are extremely important for yourself and everyone else. Even if you don't think you need representation, it has been proven it is better to have another set of ears as sometimes words are taken out of context.
In conclusion you have the right to discuss union matters with your Union President and Vice President. Some of you may have been ordered not to discuss what was said in a meeting with your superiors. I strongly recommend you advise us of what happened for your protection and others. Again, thank you for your time and I look forward to working with everyone.
Matt Gillis (POLC LOCAL)
The memo was posted on February 12, 2014. The next day Sheriff Miller, who was in charge of running the jail, threatened Gillis with criminal prosecution for interfering with an ongoing investigation. Walraven was placed on leave on February 18, 2014, based on "an investigation of allegations of misconduct[.]" Walraven's employment was terminated on April 15, 2014; it had to do with allegations that appear to be goofing off and some minor policy violations. Gillis was subjected to a separate investigation beginning on February 26, 2014, relating to an alleged sexual relationship with an inmate that began "during her time in custody and after her release but while under court supervision." Gillis eventually admitted involvement and resigned his employment; nevertheless, he claimed that he was constructively discharged on February 27, 2014.
These facts are bad enough. If Gillis began a sexual relationship with an inmate while she was in custody, he should have been fired. The allegations regarding Walraven predated posting in the memo; it would appear that he would have been subject to some discipline on the basis of the misconduct occurring well before the memorandum. In other words, these bad facts make both Gillis and Walraven poor plaintiffs to assert the free-speech protections for public employees under the First Amendment.
The District Court granted summary judgment to the defendants. The Sixth Circuit in a 2-1 decision affirmed. The most troubling aspect of the decision is the discussion regarding what is required of a public employer to substantiate that the Pickering balance applied in these type cases should tilt in its favor.
The Pickering balancing test is used "to determine if the employee's free-speech interest outweighs the efficiency interest of the government as employer." This is a process in which a court, as a matter of law, must weigh the employee's interest in commenting upon matters of public concern against the interest of the state, as an employer, and promoting the efficiency of the public services it performs through its employees. In other words, the Pickering balancing test gives a court leeway on a legal issue to tilt the balance in favor of the employing public entity and in silencing public employees.
Gillis and Walraven argued that the defendants had failed to present evidence that their memorandum had caused any actual disruption to the jail's operations. In ruling on a matter of first impression, the Sixth Circuit ruled that the defendants did not have to make such a showing. Instead, the Sixth Circuit ruled as follows:
A public employer need not show actual disruption of the public agency in all cases in order to prevail under the Pickering balancing tests. Instead, when the employer does not offer such evidence, we must assess whether the employer could reasonably predict that the employee speech would cause disruption, in light of the manner, time and place the speech was uttered, as well as the context in which the dispute arose.
To meet this standard all that a public employer is going to have to do is offer some semi-coherent expression of concern about the effects the employee's speech could have had. This is going to be even easier when the employer is a jail or law enforcement agency, since the Sixth Circuit emphasized that "we have long recognized 'the importance of deference' to law enforcement officials when speech threatens to undermine the functions of organizations charged with maintaining public safety." The practical application of this rule will be to foreclose nearly all if not all free speech protections for public employees employed in a public safety agency. It will also creep into nonpublic safety public agencies as well.
The value of First Amendment protections for public employees is that it offers protection for whistleblowers to report and announce waste, fraud, abuse and the like as well as practices that misserve the public or waste taxpayer dollars. This isn't what Gillis and Walraven were doing; a better ruling would have been that their speech did not address a matter of public concern and, therefore, was not entitled to any First Amendment protection, a ruling that would preclude the necessity of reaching the Pickering balancing test. So once again bad facts make bad law.
The Sixth Circuit's majority opinion was authored by Circuit Judge Eric Clay and joined by visiting District Judge Joseph Hood of the Eastern District of Kentucky. Circuit Judge Karen Moore dissented.
The Sixth Circuit's decision earlier this year in Jackson v. VHS Detroit Receiving Hospital offers an excellent example of the correct analysis of comparator proof in discriminatory discipline cases. Judge Eric Clay's opinion shows the type of care and attention to detail all too rare.
The plaintiff, Karon Jackson, worked as a mental health technician at the hospital. Her duties included handling the discharge of psychiatric patients. She was a 15 year employee when she was fired in 2013; she had received consistently good performance evaluations. One of the duties in discharging the psychiatric patients was checking their ID bands to make sure the right patient was being discharged. Jackson and an RN both failed to check the ID band of a patient that was mistakenly discharged. The patient, however, later returned to the hospital without incident or injury. Nevertheless, Jackson was terminated.
Jackson filed a sex discrimination suit following her discharge. She pointed to differential discipline imposed on two male colleagues, a Duncan and a Little, as her principal proof of gender discrimination. The district court, Judge Stephen Murphy, ruled that Jackson's conduct was too dissimilar from Duncan's and/or Little's to be fairly comparable and granted the hospital a summary judgment.
The Sixth Circuit reversed. It explained that Jackson's conduct should be compared with Duncan's and Little's both as to whether she presented a prima facie case of discrimination and as to the issue of pretext.
With regard to the prima facie case analysis the Sixth Circuit advised that "we look to whether the comparators' actions were of comparable seriousness to the conduct for which Plaintiff was discharged. A plaintiff is not required to show that this proposed comparator's actions were identical to his own." One of the comparators, Duncan, had likewise failed to check a patient's ID when discharging the patient and, as a result, the incorrect patient had been discharged. At the time of this incident, Duncan was subject to a "last-chance agreement" because of, among other things, a failed drug test. Little also had a prior disciplinary history; he failed to check a patient for weapons upon the patient's admission and was cited for the same infractions as was Jackson.
The district court had asserted that Jackson could not cited Little as a comparator, because he had never discharged the wrong patient. This was error, the Sixth Circuit pointed out: Jackson did not need to show that the comparator's conduct was identical, only that it was of comparable seriousness. The hospital's reference to the same sections of its handbook as violated by Jackson and Little showed this.
The Sixth Circuit again returned to comparing Jackson's with Duncan's and Little's conduct when examining the issue of pretext. This entailed "a change in the rigor with which we evaluate Jackson's similarity to her comparators; it is not an increase in the weight of her evidentiary burden." The court described its analytical focus as follows:
When conducting this more rigorous comparison, we again focus on the severity of the differently treated employees' actions. The relative severity of two actions is not determined solely by whether those actions violated the same company rule or policy. Instead, employers -- and therefore courts -- are free to consider both the actual and potential consequences of the employee's actions.
Considering actual consequences makes some sense, but getting into the area of potential consequences - an area necessarily prone to speculation -- is problematic; perhaps also, some would say, a convenient way for a judiciary hostile to employment discrimination cases to justify their dismissal. Here, the court punts a bit: it first asserts that "whether differences in ... hypothetical injuries justified differential discipline is a task better suited for a jury." Second, the court asserted that the potential consequences from Duncan's conduct were much more apparent when the mistake occurred, a fact that the court said favored Jackson.
As to Little, both his and Jackson's infractions "were cited as violating the same two major infractions [which] indicates that those mistakes were substantially identical in terms of potential disciplinary consequences." They were also "identical in the severity of their actual consequences: neither employees' violation resulted in harm to patients or staff." The potential consequences were also sufficiently similar, since some grave potential risk surrounds both discharging erroneously a psychiatric patient and allowing one to bring three weapons into the hospital.
A final factor the Sixth Circuit cited in Jackson's favor was the gender disparity among the mental health techs. Jackson was the only female out of 14, although their overall work unit was predominantly female: "the fact that Jackson was the only female out of fourteen MHTs supports her contention that [the hospital] preferred males for that particular position."
What do we gain out of this: (1) Jackson had a better work record than either Duncan or Little; they had some fairly significant disciplinary history while she had good performance reviews; (2) they were all cited for infractions that regarded the same policy interests of the hospital; (3) the actual consequences of the violations were the same: there was no harm to either patient or staff; and, (4) the potential consequences - harm to either patient or staff -- were the same also. This plus the gender disparity among Jackson and her colleagues was enough to create a fact issue for trial to be resolved by a jury. One can see that it would be reasonable to conclude that a different and tougher standard was being applied to Jackson, a female, as opposed to her male colleagues.
The assessment is harsh, but the gist of the decision is the Labor Department fundamentally has misunderstood under both Democratic and Republican Presidents the Fair Labor Standards Act and its overtime provisions for the 70+ years its been on the books; not likely, Judge -- you missed this one badly.
Truck drivers are often perhaps usually exempted from overtime pay requirements by the federal Motor Carrier Act (MCA). But a recent Fifth Circuit decision, Olibas v. Native Oilfield Services, shows the limits of that exemption, and the perils an employer creates for itself by failing to maintain or by destroying documentary evidence including payroll records.
Truck drivers for Native Oilfield Services filed an overtime suit claiming that they should have been paid overtime for (1) their off the clock hours waiting to be assigned a truck, and (2) their off the clock hours spent waiting for their trucks to be loaded/unloaded. The trucking company answered that the MCA exempted the drivers from overtime pay requirements.
The MCA exempts drivers of trucks weighing greater than 10,000 pounds and other employees whose regular duties require them to "engage in activities of a character directly affecting" the safe operation of such vehicles and interstate commerce. Interstate commerce under the MCA doesn't just mean across state lines but includes "the ant trust state transport of goods in the flow of interstate commerce." But not just any duties or possible such duties are enough; where the drivers or other employees duties are so "trivial, casual, and insignificant as to be de minimis" the exemption does not apply. But again and in the way that the law is complicated generally, the exemption does apply if employees are, or are "likely to be, called upon in the ordinary course of their work to perform, either regularly or from time to time, safety affecting activities that are interstate in nature."
So here is where the drivers stood: (1) if they did actually regularly drive the trucks across state lines, they would be exempt; (2) if they were likely to be called upon in the ordinary course of business from time to time to drive the trucks across state lines, they would be exempt; (3) aside from driving the trucks across state lines, the drivers, if the drivers drove the trucks only intrastate but a regular part of the company's business would be to deliver goods across state lines, the drivers would be exempt.
There was conflicting testimony at trial regarding whether the drivers regularly and/or were subject to being required to drive their trucks across state lines. The jury resolve that issue in the drivers' favor. As the Fifth Circuit put it, "it was a pure jury question whether to believe the employees or the employer."
It was likely helpful to the drivers that the company was unable to produce documentary evidence supporting its position. The company could not at trial "produce drivers logs, bills of lading, time sheets, or other documents" showing interstate travel by the drivers. The company claimed that the logs had been destroyed by a third-party but also admitted that the logs had been destroyed after they had been requested by the drivers in pretrial discovery. Daily trip reports and driver time sheets, according to the company president, were supposedly stored in a banker's box after the drivers requested them but, inexplicably, were later destroyed. The company also failed to produce any customer orders supporting its claim that goods it transported intrastate were bound for interstate delivery. So not only did the company failed to produce documentary evidence supporting its position, it also offered incredible explanations for its failure to do so.
The Fifth Circuit upheld an award of $1,673,145 in unpaid overtime compensation, $1,673,145 in liquidated damages, $371,759.59 in attorney's fees and $10,564.32 in costs. There were 108 drivers covered by the case.
A "file review" by a medical professional labeled "independent" by the insurance company is often a part of disability insurance claims process. The Sixth Circuit recently considered the strengths and weaknesses of such a "file review" in Okuno v. Reliance Standard Ins. Co. This opinion yielded a number of interesting points to consider:
In sum, a file review is not per se inadequate but its use raises questions where the claim has a psychiatric component. The disability insurance company should use medical consultants with expertise in the relevant medical field. Finally, there should be some communication with the claimant's treating physicians and there should be some reasoned discussion of their opinions.
For further reading: Has Your Claim for Disability Insurance Benefits Been Denied Based on a Preexisting Condition? and Has Reliance Standard Denied Your Disability Insurance Benefits Claim Based on a Mental Disorder or Condition?
Reliance Standard, as do many disability insurers, has a mental and nervous disorders limitation that restricts payment of disability insurance benefits to 12 months where a claimant's disability is "caused by, " "contributed to by," or "resulting from" mental or nervous disorder. This language imposes a "but for" causation standard the Sixth Circuit held recently in Okuno v. Reliance Standard Life Ins. Co., joining the Fifth, Ninth and Third Circuits in so ruling.
The claimant, Patti Okuno, was diagnosed with narcolepsy, Crohn's disease and Sjogren's syndrome, an autoimmune disorder, after struggling for years with fibromyalgia and degenerative disc disease. Okuno went through a total of three administrative appeals, while the insurance company determined that her disability benefits would be limited to 12 months because of anxiety and depression diagnoses in addition to her physical maladies. The benefits limitation was based on Eventually she filed suit and the district court, Hon. Gregory L. Frost of the Southern District of Ohio, ruled on the administrative record for the insurance company.
Okuno argued that the mental or nervous disorders limitation did not apply where "the evidence establishes that a claimant is 'disabled by physical conditions alone, then the mere presence of a 'psychiatric component' does not justify application of the one-year mental health limitation."
The Sixth Circuit accepted this argument noting the Fifth Circuit's recent observation "that every federal circuit to consider the meaning of phrase 'caused by or contributed to by,' in the Mental or Nervous Disorders Limitation, has read it 'to exclude coverage only when the claimant's physical disability was insufficient to render him totally disabled." This "but for" test led the Sixth Circuit to conclude that "an application is not appropriately denied on the basis that a mental or nervous disorder 'contributes to" a disabling condition; rather the effect of an applicant's physical ailments must be considered separately to satisfy the requirement that review be reasoned and deliberate." This standard joined rulings by the Fifth, George v. Reliance Standard Life Ins. Co., 776 F3d 349 (5th Cir 2015), Ninth, Maurer v. Reliance Standard Life Ins. Co., 500 Fed.Appx. 626 (9th Cir. 2012), and Third Circuits, Michaels v. The Equitable Life Assurance Long-Term Disability Plan, 305 Fed.Appx. 896 (3d Cir. 2009).
Evidence is evidence. That unremarkable observation is at the heart of the 7th Circuit's remarkable opinion in Ortiz v. Werner Enterprises in which it endeavors to simplify the evidence doctrines that "has complicated and sidetracked employment discrimination litigation for many years."
The case is a run-of-the-mill national origin discrimination case; the plaintiff claimed he was fired, because of his Mexican ethnicity. The district court, Judge John Darrah of the Northern District of Illinois, granted the employer summary judgment. One of the district judge's errors was the "effort to shoehorn all evidence into two 'methods,' and its insistence that either method be implemented by looking for a 'convincing mosaic,' detracted attention from the sole question that matters: Whether a reasonable juror could conclude that Ortiz would have kept his job if he had a different ethnicity, and everything else had stayed the same."
After reviewing and overruling a number of its own sloppily-written opinions that had added to the complications and observing the inefficacy of its efforts to get understood what an evidentiary mosaic is (a metaphor for evidence making a persuasive case), the 7th Circuit got to this point:
Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself - or whether just the "direct" evidence does so, or the "indirect" evidence. Evidence is evidence. Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled "direct" or "indirect."
Try the argument: "Judge, evidence is evidence." It's a good one, right.
Public employees are supposed to be immune from punishment or retaliation based on their political associations and activities. This protection derives from the First Amendment which "prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate," the Supreme Court ruled long ago in establishing one of the most widely-disregarded in Kentucky employment rules. But what if the employer is mistaken about the employee's political activity or support for a candidate and takes action against the employee based on that mistaken information? No matter, the Supreme Court ruled this term in Heffernan v. City of Paterson:
When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983 -- even if, as here, the employer makes a factual mistake about the employee's behavior.
Paterson, New Jersey, in addition to being the hometown of the great poet Allen Ginsberg, is also the situs for the wrongful prosecution and conviction of champion boxer Rubin "Hurricane" Carter memorialized by the Bob Dylan song, "Hurricane""
A common dodge to overtime claims is the assertion by the employer either that it prohibited or did not know of the overtime work by the employee. A good example can be found in the recent Sixth Circuit decision in Craig v. Bridges Brothers Trucking. There a bookkeeper for the trucking company filed suit seeking payment of the overtime she had earned and the district court, Judge Edmund A. Sargus, granted summary judgment to the employer finding that it "did not know or have reason to know" that the employee had worked overtime hours. This was a major and, frankly, a perplexing error by the district court given the evidence in the case, which the Sixth Circuit described as follows:
... the undisputed evidence demonstrates that [plaintiff] kept meticulous records, reporting not only how many hours she worked each week, but also where she was working and the tasks she completed each day. She then placed those records, along with the time cards of the other Bridges Brothers employees and a summary report, directly onto the chair of Mr. Bridges for his approval each week. While she may have miscalculated her pay rate, she did not miscalculate her time.
Although the employer had been regularly presented with "meticulous" records detailing the work performed and task completed by the plaintiff, the Sixth Circuit still saw fit to announce a general rule applicable to situations where the employer asserts that it did not know or have reason to know that an employee was working overtime:
If an "employer knows or has reason to believe" that an employee "is continuing to work" in excess of 40 hours a week, "the time is working time" that must be compensated at a time-and-a-half rate, even if the extra work performed was "not requested" or even officially prohibited.
In other contexts, we have found that a "reason to believe," or constructive knowledge of something, exists when the employer "should have discovered it through the exercise of reasonable diligence." We now adopt the reasonable diligence standard for FLSA cases. (citations omitted)
Given the court's description of the "undisputed evidence" regarding the "meticulous" time worked records that the plaintiff provided to the president of the trucking company each week, one might expect the Sixth Circuit to have also ordered that a partial summary judgment be entered on the employee's behalf. However in that one would be wrong:
No one disputes that Craig worked overtime or that she was not compensated at the statutory rate. As such, this case turns entirely on whether Bridges Brothers "knew or had reason to believe" that Craig was working overtime. Whether a party had the requisite knowledge is a question of fact. It requires "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences," all of which "are jury functions, not those of a judge." While a jury could conclude that an employer exercising reasonable diligence should know what is on its own timesheets and payroll records, we cannot say as a matter of law that a jury could not conclude otherwise here. (citations omitted).
The court does not explain how a reasonable jury could reject the undisputed evidence, although the ruling denying summary judgment to the employee is remarkable since the Sixth Circuit regularly affirms summary judgment in favor of employers where the evidence is much stronger for the employee.
But you take what you can get. And so it goes.
The Sixth Circuit's opinion was authored Senior District Judge Robert Cleland of the Eastern District of Michigan joined by Circuit Judges Richard Griffin and Raymond Kethledge, who was recently cited by Donald Trump as a Supreme Court short-lister.