Kentucky Employment Law Blog

After-Acquired Evidence Rule Inapplicable to Post-Wrongful Termination Alleged Misconduct

In addition to the other remarkable features of the Sixth Circuit's ruling in Jones v. Nissan North America, No 09-5786 (August 18, 2011), that were discussed in a previous post, Employee "Regarded As" Suffering From Disability Where Employer Fabricated Work Restriction and Failed to Conduct Individualized Inquiry Regarding Employee's Actual Medical Condition, Sixth Circuit Rules, the Court also undertook to consider and ultimately reject application of the after-acquired evidence doctrine.

After Nissan fabricated a work restriction applicable to Jones and then used that fabricated restriction to run him out of its workforce, Nissan placed Jones on unpaid medical leave. Jones wasn't technically terminated; he just did not work, was not paid and had no benefits. After a few months of this and in order to support his family, Jones went out and got a job, but he didn't get Nissan's permission to do so beforehand. Later, when Jones filed suit over Nissan's fabrication of the work restriction, Nissan argued successfully in the district court that Jones's remedies should be reduced under the after-acquired evidence doctrine recognized in McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995).  McKennon stands for the proposition that the remedies of a wrongfully terminated employee may be limited where the employer discovers after the fact grounds on which it claims it could and would have fired the employee anyway.

Jones's situation had a twist, though. His allegedly wrongful act -- going out and getting a job to support his family without Nissan's permission and after Nissan had fabricated a work restriction to get him out of its workforce -- occurred long after the effective and practical termination of Jones's employment by Nissan. After surveying the caselaw and concluding that the authorities were split on whether the after-acquired evidence doctrine applied in this situation, the Sixth Circuit concluded that it did not based on a simple, tort-like proximate causation analysis:

Were it not for Nissan's wrongful imposition of medical restrictions rendering Jones medically unfit for any position that Nissan, Jones would not have been in the position of seeking employment without Nissan's permission in violation of its rules. Without Nissan's wrongful conduct, Jones would not have violated any rule. We therefore conclude that it was error to give the McKennon instruction limiting damages.

Robert L. Abell
www.RobertAbellLaw.com 

Employee "Regarded As" Suffering From Disability Where Employer Fabricated Work Restriction and Failed to Conduct Individualized Inquiry Regarding Employee's Actual Medical Condition, Sixth Circuit Rules

Apparently dissatisfied with the outcome of proceedings as to a workers compensation claim, Nissan fabricated the existence of a work restriction for the employee, then concluded, in view of this fabricated work restriction, that it had no position he was physically able to perform and terminated his employment. This violated the Americans with Disabilities Actas a matter of law the Sixth Circuit ruled in Jones v. Nissan North America, No 09-5786 (August 18, 2011), a remarkable decision in which the Court overrode an adverse jury verdict for the plaintiff, reversed and ordered that judgment as to liability be entered on the employee's behalf.

Mark Jones was a long-time production laborer at Nissan's plant in Smyrna, Tennessee. In April 2003, Jones injured his right elbow, was later diagnosed with "tennis elbow" for which he had successful surgery in September 2004 and was returned to work with no restrictions in January 2005. Related to the elbow injury he was assigned and impairment rating of 3%. He continued working over the next year and a half; his supervisor found in be a hard worker and Jones never asked for any type of accommodation or indicated that he was having any difficulty performing his job duties.

In June 2006, Jones is workers compensation claim regarding his elbow injury was tried in Chancery Court. The Chancellor found that Joan suffered from a 30% vocational disability, noting that Jones was suffering continuing difficulties because of the injury to his elbow.

The award of workers compensation benefits, as the Sixth Circuit noted, "was higher than Nissan was expecting." Nissan resolved that works restrictions should be imposed on Jones to include no lifting, no use of power tools and no use of hand tools. Event concluded that it had no jobs available for Jones consistent with those restrictions, and placed them on unpaid medical leave. Nissan asked Jones to sign a form indicating that he was restricted from lifting, using power tools and using hand tools but he declined, explaining "I was not on any restrictions, I could do my job, and I was able to do my job." Jones also declined to follow Nissan suggestion that he apply for long-term disability benefits. Subsequently, after Nissan had run Jones out of his workforce, he accepted employment with another company, a move that provoked Nissan to formally terminate his employment.

Jones filed suit claiming that the termination of his employment violated both the Americans with disabilities act and Tennessee state law. He claimed not that he actually was disabled but that he was so regarded by Nissan. The essence of his claim was that Nissan fabricated the work restrictions regarding lifting and his use of power and hand tools and therefore regarded him as disabled, because it regarded him as substantially limited in and performing the major life activities of lifting in performing manual task, which includes the use of hand tools and power tools. See Wysong v. Dow Chemical Co., 503 F.3d 441, 450 (6th Cir. 2007)( lifting a major life activity); Kiphart v. Saturn Corp., 251 F.3d 573, 584 (6th Cir. 2001) (ability to perform manual task including using "hand power tools" and "air vibrating power tools" is a major life activity).

Nissan claimed that it had imposed the restrictions on Jones because it was required to do so by the Chancellor's order in Jones' workers compensation case. The Sixth Circuit rejected this out of hand noting, among other things, that "Nissan employees continually revised the Chancellor's findings without regard to what the Chancellor actually stated" and imposed the hand tool restriction "despite the fact that the Chancellor did not make a single finding with regard to Jones's ability to use hand tools and his job."

The Sixth Circuit ruled further that Nissan's position was undercut by its failure to take "any steps to ascertain Jones's actual medical condition" and further that "Nissan acknowledged that it conducted no such inquiry because it determined that it did not matter whether Jones was medically disabled." The court stressed that it is prior holding in Holiday v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 200), required an employer to conduct an "individualized inquiry" into an employee's actual medical condition that could not be excused by simply relying on a third-party's assessment that an employee is disabled.

The Court concluded its analysis as follows:

    The question then is whether when an employer takes action based on a third party's judgment regarding the employee's physical ability to perform the job, it is excused from making an individualized inquiry if it perceives that is required to follow the third party's judgment without regard to the accuracy of that judgment. Nissan argues that in such a case the employer is not acting based on prejudice, myths or preconceived notions about an employee's physical abilities, but rather on its understanding, albeit possibly mistaken, of its obligations separate and apart from its perceptions of the employee's physical capabilities. Nissan thus seeks refuge behind the chancellor's conclusions by casting them as legal, rather than medical, conclusions. But the chancellor's statements were neither; there were findings in support of the chancellor's ruling. In making these findings, the chancellor did not impose restrictions on Jones; the chancellor simply stated, in response to Nissan's counsel's request for clarification, what the chancellor found to be the injuries affect on Jones's ability to perform various tasks. Whether this is labeled as a medical determination of some other type of determination, this determination concerns Jones's physical ability to perform his job. Were employers permitted to infer an inability to do the job based on workers' compensation findings of fact, the purposes of the ADA would be undermined. Although Nissan disavows sharing the chancellor's view of Jones's limitations, it nevertheless drew unfounded inferences from those findings, leading it to impose unsupported medical restrictions on Jones. This constitutes discrimination under the ADA.

From that concluson the Sixth Circuit overrode the jury's verdict in Nissan's favor, reversed and ordered that judgment in Jones' favor be entered by the district court.

Robert L. Abell
www.RobertAbellLaw.com 

 

Police Officer's Refusal to Make False Statements Is Protected Activity

Is a police officer's refusal to make false statements in an investigation into a civilian complaint charging use of excessive force activity protected by the First Amendment? "Yes" answered the Second Circuit in its recent decision in Jackler v Byrne, No 10-0859 (2nd Cir., July 22, 2011).

Jason Jackler was employed as a probationary police officer by the Middletown, New York Police Department. He responded to a call and witnessed another police officer punch a handcuffed arrestee, a Jones, in the face. Jones filed an excessive force complaint with the police department and reported that Jackler had witnessed him be punched in the face while he was handcuffed. Jackler was ordered to submit a report, which confirmed Jones' complaint that he was punched in the face while he was handcuffed. Jackler was subsequently pressured by the police chief, Byrne, and other high Police Department officials to retract his report and substitute one containing false information. He refused. As a result, the Police Department terminated his employment. After he was fired, Jackler filed suit claiming, among other things, that his refusal to submit a false report was activity protected by the First Amendment.

The police department moved to dismiss arguing that Jackler had filed his report as part of his official duties and that, therefore, his claims were barred by the Supreme Court's holding in Garcetti v. Ceballos, 547 U.S. 410 (2006). Jackler responded that his First Amendment claim rested not on his official report but on his refusal to retract it and submit one containing false information. The district court dismissed Jackler's suit.

The Second Circuit reversed and explained as follows:

In the present case, Jackler had a strong First Amendment interest in refusing to make a report that was dishonest. We think it clear that his refusal to change a statement as to what he witnessed when [the police officer] struck Jones were directed at a matter of public concern, rather than an effort to further some private interest of Jackler personally. The use of excessive force by police officers a matter of serious public concern [.] ... We also think it clear that Jackler's refusal to accede to defendants'demands that he falsely exculpate [the police officer that used excessive force] has a civilian analogue. ... A citizen has a First Amendment right to decide what to say and what not to say, and, accordingly, the right to reject governmental efforts to require him to make statements he believes are false. Thus, a citizen who has truthfully reported a crime has the indisputable right to reject pressure from the police to have him rescind his accusation and falsely exculpate the accused. ... In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusal to proceed to those demands constituted speech activity that was significantly different from the mere filing of this initial report.

In sum, it is clear that the First Amendment protects the rights of the citizen to refuse to retract a report to the police that he believes is true, to refuse to make a statement he believes is false, and to refuse to engage in unlawful conduct by filing a false report with the police. We conclude that Jackler's refusal to comply with orders to retract his truthful report and file one that was false has a clear civilian analog and that Jackler was not simply doing his job in refusing to obey those orders from the department's top administrative officers and the chief of police. 

Robert L. Abell
www.RobertAbellLaw.com