Kentucky Employment Law Blog

Can A Policy Violation Also Be Protected Activity?

Can a policy violation also be protected activity? Here's the scenario: a client in an employment discrimination case secretly tape-records conversations and discussions in her workplace because she believes she is being subjected to gender discrimination (such a recording would be legal in Kentucky because the client, the recorder, consents to the recording). But the employer has a policy forbidding tape-recording in the workplace. After the client is fired and files a gender discrimination suit, the employer learns of the recordings and contends that her remedies should be limited because this violation of policy would have justified her firing. This is known as the after-acquired evidence doctrine discussed by the Supreme Court in McKennon v. Nashville Banner, 513 U.S. 352 (1995). Some courts recognize the problems that employers raise for themselves in making arguments like this.

In Loudermilk v. Best Pallet, LLC, 636 F.3d 312 (7th Cir. 2011), the plaintiff had raised numerous complaints about discriminatory treatment in the workplace.  He took some photos for purposes of supporting his complaints.  The employer, after much floundering around, eventually claimed that it fired the plaintiff for taking the photos. The Seventh Circuit, which reversed a district court's grant of summary judgment to the employer, took a dim view of the employer's argument:

Best Pallet says that it fired Loudermilk not because of the note's content, but because he had taken pictures of the work site, in violation of company policy. But it did not give thatexplanation to Loudermilk—or for that matter the EEOC. Best Pallet told the agency that it let Loudermilk go as part of a reduction in force (though Loudermilk's name was not on a list of workers that had been prepared for that purpose). In court it abandoned that explanation and contended that Loudermilk had resigned, or that his departure was a "mutual decision." Since Loudermilk says that he did not resign, that explanation can't prevail at the summary judgment stage. This led to the "fired for photography" contention, which is problematic not only because the no-photography policy may have been cooked up after the fact, but also because it comes close to conceding retaliation. 

In Heller v. Champion Int'l Corp., 891 F.2d 432 (2nd Cir. 1989), the employer argued that it was justified in firing the plaintiff, regardless of the terms of any implied contract, because he had been disloyal by taping conversations with company personnel.  The Second Circuit rejected this argument and, noting that the plaintiff also contended that he was a victim of age discrimination, observed as follows:

At the time the events of this lawsuit were unfolding, Heller believed that Champion was not only in the process of breaking its promises to him, but that it was also discriminating against him because of his age. His surreptitious tape-recording, to be sure, represents a kind of "disloyalty" to the company, but not necessarily the kind of disloyalty that under these circumstances would warrant dismissal as a matter of law. The Age Discrimination in Employment Act prohibits employers from discharging individuals because they have "participated in any manner in an investigation, proceeding, or litigation under this chapter."

Some courts have reached different conclusions and all have cautioned that there are limits on what an employee may do to gather evidence to bolster their discrimination complaints. The circumstances of each case, accordingly, will have to be probed and considered carefully.

Robert L. Abell
www.RobertAbellLaw.com

Can A Supervisor Be Similarly Situated To A Subordinate Employee?

One element of a prima facie case of employment discrimination is proof that the employee was treated worse than a similarly-situated co-worker, who is not a member of the plaintiff-employee's particular protected class. The Seventh Circuit recently examined the question of whether a discharged employee's supervisor can be deemed as similarly situated in Rodgers v. White, No 10-3916 (7th Cir. 2011). 

Rodgers, an African-American, claimed he was the victim of race discrimination and pointed to the more favorable treatment of two white co-employeees, one of whom, Rusciolelli, was his immediate supervisor.  The Seventh Circuit, after observing that supervisors generally make poor comparators, but cautioned that "usually does not mean always" and explained as follows:

• when uneven discipline is the basis for a claim of discrimination, the most-relevant similarities are those between the employees' alleged misconduct, performance standards, and disciplining supervisor
   
• "Formal job titles and rank are not dispositive; an employer cannot 'insulate itself from claims of racial discrimination' by making formalistic distinctions between employees."

Accordingly, the court ruled as follows:

... when a plaintiff and his supervisor were accused of making similar mistakes, were equally responsible for avoiding those mistakes, and were disciplined by the same superior, the plaintiff can make a realistic comparison with his supervisor for purposes of establishing a prima facie case of discrimination.

Robert L. Abell
www.RobertAbellLaw.com 

A Supervisor's Unlawful Bias or Animus Is Chargeable to the Employer Where It Is a Proximate Cause of An Adverse Employment Action, the Supreme Court Holds in Staub v. Proctor Hospital

If a supervisor performs an act motivated by an unlawful animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable the Supreme Court has ruled in Staub v. Proctor Hospital. The case examines the intersection of tort principles of proximate cause, agency law and statutory employment law prohibiting adverse employment actions "motivated" by unlawful animus or bias in what commonly is referred to as a "cat's paw" scenario.

The employee, Staub, was a member of the United States Army Reserve. His supervisors, Mulally and Korenchuk, were hostile toward his military obligations and, according to evidence presented at trial, agitated to "get rid of him." Toward doing so Mullaly conjured up a corrective action disciplinary warning for Staub. Subsequently, Korenchuk informed the hospital's human resources director, Buck, that Staub had violated the corrective action warning earlier issued by Mullaly. On this basis, Buck terminated Staub's employment. Staub then filed a grievance and claimed that Mullaly had fabricated the initial corrective action based on hostility toward his military obligations but Buck did not change her decision to terminate Staub.

Staub filed suit under the Uniformed Services Employment and Reemployment Rights Act of 1984 (USERRA), which prohibits, among other things, firing an employee where a "motivating factor" for the firing was the employee's military obligations.  A jury found in Staub's favor and awarded him $57,000 in damages but the Seventh Circuit reversed.  

The Supreme Court framed the question as "the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision." In reaching its holding the Court made the following observations:

•     when Congress creates a federal tort (such as USERRA or Title VII) it adopts the     background of general tort law
   
•     USERRA is "very similar" to Title VII, which prohibits employment discrimination     where an unlawful criteria "was a motivating factor" for the employment action
   
•     Animus and responsibility for the adverse action can both be attributed to the earlier     agent (here, Staub's supervisors) if the adverse action is the intended consequence of     that agent's discriminatory conduct. So long as the agent intends, for discriminatory     reasons, that the adverse action occur, he has the scienter required to be liable under     USERRA. And it is axiomatic under tort law that the exercise of judgment by the     decisionmaker does not prevent the earlier agent's action (and hence the earlier     agent's discriminatory animus) from being the proximate cause of the harm.
  
  
•     Proximate cause requires only "some direct relation between the injury asserted and     the injurious conduct alleged" and excludes only those "links that are too remote,     purely contingent or indirect."
  
  
•     The decision-maker's exercise of judgment may be also a proximate cause of the     termination but "it is common for injuries to have multiple proximate causes" Sosa     v. Alvarez-Machain, 542 U.S. 692, 704 (2004)
  
  
•     the ultimate decisionmaker's judgment cannot be deemed a superseding cause     unless it is a "cause of independent origin that was not foreseeable." Exxon Co., USA     v. Sofec, Inc, 517 U.S. 830, 837 (1996).
  
  
•     Since a supervisor is an agent of the employer, when he causes an adverse     employment action the employer causes it; and when discrimination is a motivating     factor in his doing so, it is a "motivating factor" for the employment action.

Robert L. Abell
www.RobertAbellLaw.com 

Appeals Courts Again Emphasize Flexibility of the Prima Facie Case Elements Where McDonnell Douglas Burden-Shifting Analysis Is Used

A common and repeated error made by trial court judges in employment discrimination cases is undue fixation on the elements of the plaintiff employee's prima facie case where the court is employing a burden-shifting analysis under the McDonnell Douglas framework established by the Supreme Court's decision.

The elements are flexible and context-specific, the burden-shifting analysis a mere analytical tool and the determinative question is whether the plaintiff-employee can prove discrimination. Both the Fourth and Sixth Circuit Courts of Appeals have been called upon recently to emphasize this oft-repeated point:

Notwithstanding the intricacies of proof schemes, the core of every Title VII case remains the same, necessitating resolution of "the ultimate question of discrimination vel non." As the Supreme Court has explained, "the ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was a victim of intentional discrimination." Thus, "courts must ... resist the temptation to become so into wine in the intricacies of the [McDonnell Douglas] scheme that they forget that the scheme exists solely to facilitate determination of 'the ultimate question of discrimination vel non.'" Merritt v Old Dominion Freight Line, No 09-1498 (4th Circuit, April 9, 2010).

The Sixth Circuit in a "failure to transfer" case was moved to observe in reversing a summary judgment erroneously granted by the district court:

Thompson's claim need not fit perfectly within one of our enumerated tests in order to survive summary judgment. The requirements for establishing a prima facie case of discrimination are always context-dependent, and "the key question is always whether, under the particular facts and context of the case at hand, the plaintiff has presented sufficient evidence that he or she suffered an adverse employment action under circumstances which give rise to an inference of unlawful discrimination." Thompson v Richmond Heights Hospital, No 08-4435 (6th Circuit, April 12, 2010).

Robert L. Abell
www.RobertAbellLaw.com

 

Earlier Discriminatory Acts of Supervisor Admissible In Support of Failure to Promote Claim

The discriminatory acts of a prior supervisor marred the work record of an employee when he later sought promotion. The employee sought to present evidence on these past discriminatory acts to support his failure to promote claim based on race. The trial judge excluded this evidence and, in doing so, committed reversible error the Sixth Circuit has ruled in Cobbins v. Tennessee Dept. of Transportation, No 07-6491 (April 2, 2009). 

Gregory Cobbins, an African-American male, was a ten year employee of the Tennessee Department of Transportation and sought promotion to a supervisor position. He was unsuccessful and one of the explanations for the decision was that the successful candidate had no record of disciplinary action, while Cobbins "had several oral and written warnings in his work file."  The warnings were all received between 1998 and 2002 by a former supervisor, Yocum. Cobbins claimed in a prior lawsuit that these warnings were the product of race discrimination by Yocum. The prior lawsuit was dismissed without a judgment on the merits of Cobbins' claim. In this case, he claimed that these earlier discriminatory acts by Yocum deprived him of the opportunity to compete fairly for the promotion to the supervisor position.

The "cat's paw" theory in employment discrimination litigation refers to a situation in which a biased subordinate, who lacks decisionmaking power, influences the unbiased decisionmaker to make an adverse hiring decision, thereby obscuring the subordinate's discriminatory intent. See Arendale v. City of Memphis, 519 F3d 587, 604 n.13 (6th Cir 2008)("When an adverse hiring decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias, this Court has held that the employer may be held liable under a 'rubber-stamp' or 'cat's paw' theory of liability.").  Here, Cobbins sought to show that Yocum's past discriminatory acts, which resulted in warnings in his file, influenced the decisionmaking process that resulted in Cobbins' being passed over for promotion unfairly:

Plaintiff seeks only to demonstrate that certain conduct and actions of his supervisor at that time impacted his work record and promotion chances; and such evidence is, therefore, relevant in this case.

This case represents an often-encountered scenario: the discriminatory bias of a supervisor inflicts permanent damage to an employee's career by packing his or her file with unfounded or unfair warnings.

Robert L. Abell
www.RobertAbellLaw.com

Sex Discrimination Claim Does Not Fail Simply Because An Employer Does Not Discriminate Against Every Member of Plaintiff's Sex

Does a sex discrimination claim fail simply because an employer does not discriminate against every member of the plaintiff's sex. "No," the United States Court of Appeals for the Tenth Circuit answered recently in Strickland v UPS, No 07-1082 (February 24, 2009). The court's ruling indicates how widely misunderstood this simple point is among judges and some lawyers.

Strickland was a sales representative for UPS. Her supervisor, Roten, suggested that she take leave to deal with personal issues, a suggestion that she took. However, when she returned to work she was chastised for having "let down the company," compelled to attend numerous and frequent meetings with her supervisor and district manager, Donnell, which interrupted her sales work, compelled to draw up sales plans that other salespeople were not even though she had higher sales figures, and subjected to constant performance evaluations. She had five male co-workers and one female co-worker, Harper. All testified that Strickland was treated differently than they were, although Harper testified that she was not treated differently than the men. She was compelled eventually to leave her employment and filed suit charging sex discrimination.

The court ruled that Strickland's sex discrimination claim "does not fail simply because an employer does not discriminate against every member of the plaintiff's sex." Such evidence may weaken the claim, the court ruled, but does not defeat it. 

Robert L. Abell

www.RobertAbellLaw.com

Americans With Disabilities Act Covers Type 2 Diabetic

An insulin-dependent type 2 diabetic is covered by the Americans With Disabilities Act (ADA) the United States Court of Appeals for the Ninth Circuit has ruled in Rohr v Salt River Agricultural District, No 06-16527 (February 13, 2009). The diabetes substantially limited the worker's eating and therefore brought him within the scope of the ADA, the court ruled. 

Larry Rohr was diagnosed with in 2000 with insulin-dependent type 2 diabetes. Rohr's diagnosis inaugurated a lifetime regiment of insulin injections, medicine, blood tests, and a strict diet; the condition caused chronic high blood pressure, deteriorating vision, occasional loss of feeling in his hands and feet and made him quicker to tire. His high blood pressure also prevented him from passing an annual respirator certification, which was important to his job. As time went on, these symptoms became more severe. Eventually, Rohr's condition led to a number of permanent work restrictions:

• no rotating shift work
• no more than 9 hour workday 
• limits on prolonged work in hot areas with little ventilation 
• no heavy exertional activities 
• no work from unprotected heights or unprotected climbing  
• carry with him at all times a sugar supply such as a sugar tablet 
• no out-of-town travel to avoid any dietary disruption   

Rohr's employer became dissatisfied with these restrictions, determined that he could not perform the essential functions of his job and presented him with three options: (1) seek another position with the company; (2) apply for disability benefits; or, (3) take early retirement. Rohr opted to apply for disability benefits and filed a charge of discrimination with the Equal Employment Opportunity Commission. 

Diabetes is a "physical impairment" because it affects the "major life activity" of eating the court first ruled. The question was whether it "substantially limited" Rohr's eating. This it did for Rohr the court ruled based on the following:

• he cannot eat large meals or skip meals and must eat a snack every few hours 
• he must schedule each day's blood tests, medications and food intake 
• he sometimes becomes dizzy, symptoms that subside only when he quickly eats something 
• a deviation from his diet regimen for more than a meal or two causes his blood sugar level to rise, aggravating his condition 
• his personal and recreational travel was limited by his need to avoid disruption to his diet  

These factors caused by Rohr's diabetes were so different compared to the general population as to establish that his diabetes substantially limited his eating. 

Rohr's diabetes was severe enough to "substantially limit" eating, a "major life activity." The Court cautioned and noted other cases so ruling that not all diabetes causes such disruptions and therefore rises to the level of a "disability" within the meaning of the ADA. The assessment of a "disability" the court observed is an "individualized determination." 

Robert L. Abell

www.RobertAbellLaw.com 

Breast Cancer Survivor Prevails In Disability Discrimination Suit

A breast cancer survivor, Joan Eshelman, found, upon her return to work from medical leave, that chemotherapy had left lingering cognitive dysfunction -- a condition sometimes referred to as "chemo brain." Eventually and even though she continued to be an outstanding employee, her employer, Agere Systems, Inc. (formerly Lucent Technologies, Inc.) slated her for lay-off because of her cognitive problems. She filed suit under the American With Disabilities Act (ADA) and a jury found in her favor, awarding her $170,000 in back pay and $30,000 in compensatory damages. The trial court judge awarded her the additional sum of $6,983 to cover additional tax liabilities that she would incur. The jury's verdict and the trial court's award was affirmed by the United States Court of Appeals for the Third Circuit in Eshelman v. Agere Systems, Inc, No 05-4895 (January 30, 2009).

Eshelman's chemotherapy-induced memory problems continued after her return to work. She dealt with it successfully, however, by becoming a more meticulous note-taker, sometimes making alternative transportation arrangements when compelled to attend a meeting at a new or unfamiliar location and, at other times, just persevering on her own to get her "focus back." Despite all this, she "excelled at her job, receiving the highest possible performance appraisals for two straight years, promotions, raises and bonuses.  

A downturn in Agere's business caused it to draw up a lay-off plan. Employees were scored and those below a certain level were slated for lay-off. Eshelman was initially rated highly and the possibility of a transfer was broached. After she expressed concerns about a new work location although still asserting her confidence that she could do any job, Eshelman was changed to one of the lowest scores and she was later terminated.

Eshelman prevailed at trial on her claim that her termination violated the ADA. She advanced this claim on two theories: (1) that Agere regarded her as having a disability, and (2) that she had a record of a disability.  More specifically, Eshelman argued that Agere erroneously viewed her memory impairment caused by her chemotherapy treatment as substantially limiting her abilities in two major life activities: working and thinking. This she proved by evidence that her score in the lay-off plan was lowered because Agere management had reservations, notwithstanding her outstanding record, about her ability to perform at a new location. 

Following the jury's verdict in her favor and its award to her of $170,000 of back pay, Eshelman presented expert evidence that her taxes on the lump sum of back pay awarded by the jury would be higher than she would have paid had she received the pay in the normal course of employment. She was awarded the sum of $6,983.00 to cover this additional tax liability. This award was upheld as necessary to restore Eshelman "to the economic status quo that would exist but for the employer's conduct."   

Robert L. Abell

www.RobertAbellLaw.com 

Fair Pay Law Signed By President Obama

The Lilly Ledbetter Fair Pay Act today became the first bill signed into law by President Obama the New York Times reports, "Obama Signs Equal-Pay Legislation." The law's namesake, Lilly Ledbetter, was cheated out of money she earned during nearly 20 years of employment by Goodyear Tire. She went to trial, a jury awarded her all of her back pay along with the damages. But the United States Supreme Court took it away, ruling two years ago that she waited too long in filing her suit. The bill signed by President Obama today reverses that wrong and unjust decision. As the president said this afternoon:

“It is fitting that with the very first bill I sign — the Lilly Ledbetter Fair Pay Act — we are upholding one of this nation’s first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness.”

Robert L. Abell
www.RobertAbellLaw.com

Retaliation Protections Applicable To Employee Providing Information In Internal Investigation

Retaliation against an employee that provides information in an in-house investigation by an employer regarding discriminatory practices in the workplace violates the anti-retaliation provisions of Title VII the Supreme Court ruled yesterday in Crawford v Metro Govt of Nashville, No 06-1595 (January 26, 2009).

The Nashville Metro Government launched an investigation "into rumors of sexual harassment" by a Hughes, the employee relations director for the government's school district. Crawford, a 30 year employee, described to a human resources investigator several instances of sexually harassing behavior by Hughes:

• an instance in which Hughes answered her greeting "by grabbing his crotch and saying 'You know what's up'";
• repeated instances in which Hughes "put his crotch up to her window"; and,
• one occasion where he entered her office and "grabbed her head and pulled it to his crotch" 

The metro government took no action against Hughes but fired Crawford, accusing her of embezzlement. She filed suit claiming that her firing was in retaliation for the information she had provided in the human resources investigation regarding Hughes's misconduct. After the district court and Sixth Circuit ruled that the anti-retaliation provisions of Title VII were inapplicable to Coleman, the Supreme Court agreed to hear her case.

The Supreme Court ruled that Crawford was protected by the anti-retaliation provisions of Title VII and reinstated her case. The Court strongly rejected the argument that Crawford was not protected because she had not herself complained of harassment and started the investigation, stating

nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks her a question.

Robert L. Abell
www.RobertAbellLaw.com