Kentucky Employment Law Blog

Hostile Work Environment Based on Age Is Actionable, Fifth Circuit Rules

Is a hostile work environment based on an employee's age a viable claim?  The Fifth Circuit ruled recently that a claim for hostile work environment based on age may be advanced under the Age Discrimination in Employment Act (ADEA) in Dediol v. Best Chevrolet, No. 10-30767 (5th Cir., September 12, 2011). The Fifth Circuit followed the Sixth Circuit's decision in Crawford v. Medina General Hosp., 96 F.3d 830 (6th Cir. 1996).

Robert L. Abell
www.RobertAbellLaw.com 

Are Social Workers Exempt from Overtime Pay Requirements?

One of the exemptions to the overtime pay requirements is the "learned professional" exemption, which applies to jobs requiring "advanced knowledge customarily acquired by a prolonged course of specialized intellectual instruction."  The Ninth Circuit Court of Appeals ruled recently that the "learned professional" exemption did not apply to social workers in Solis v. State of Washington DSHS, No 10-35590 (9th Cir., 9/9/11).  

Key to whether the "learned professional" exemption applies is the degree to which a required course of instruction is directly related to the job's duties, the Court asserted, citing to several authorities including the following:

• Dybach v. State of Florida Department of Corrections, 942 F.2d 1562 (11th Cir.1991), which held that probation officers, who were required to have a bachelor's degree in "any field," did not qualify for the  “learned professional” exemption despite a requirement of one year of prior experience in law enforcement or corrections. 
• Fife v. Harmon, 171 F.3d 1173 (8th Cir. 1999), where the Eighth Circuit held that aviation operation specialists did not meet the "learned professional" exemption, because the employees acquired theiradvanced knowledge  “from a general academic education or from an apprenticeship” and not from a “prolonged course of specialized study.”
  
  
• Vela v. City of Houston, 276F.3d 659 (5th Cir. 2001), where the court held that emergency medical technicians and paramedics, who were required to complete 200 to 880 hours of didactic training, clinical experience, and field internship, did not satisfy the education prong of the “learned professional” exemption.

The Ninth Circuit ruled that the social workers for the state of Washington did not meet the "learned professional" exemption, because the education requirements for the position were not sufficiently and specifically tailored to the job duties, as the court explained:

An educational requirement that may be satisfied by degrees in fields as diverse as anthropology, education, criminal justice, and gerontology does not call for a “course of specialized intellectual instruction.” Moreover, in this case the net is cast even wider by the acceptance of applicants with other degrees as long as they have sufficient coursework in any of these fields. 

Robert L. Abell
www.RobertAbellLaw.com 

Kentucky Cities & Counties Are Not Immune From Wage & Hour Law

Counties and cities in Kentucky are not immune from the Kentucky wage and hour law, KRS Chapter 337. These local government entities are subject to overtime pay requirements the Kentucky Supreme Court ruled unanimously in Madison County Fiscal Court v. Kentucky Labor Cabinet, No. 2010-SC-00032 (August 25, 2011).

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 

Is A Collective Action Under the FLSA Mooted When the Class Representative Receives a Rule 68 Offer of Judgment Prior to Moving for Conditional Class Certification?

Is a collective action under the Fair Labor Standards Act (FLSA) mooted when the class representative receives a Rule 68 offer of judgment prior to moving for class certification? "No" answered the Third Circuit recently in Symczyk v. Genesis Healthcare Corp., No 10-3178 (3d Cir., 8/31/2011).  

Apparently seeing big trouble from an FLSA class action complaint filed by a registered nurse the employer, Genesis Healthcare Corporation, tried to short-circuit it. The nurse, Laura Symczyk, filed the suit alleging that the cmployer violated the FLSA when "it implemented a policy subjecting the pay of certain employees to an automatic meal break deduction whether or not they performed compensable work during their breaks"  Before Symczyk could move for conditional certification of the class, the employer tendered a Rule 68 offer of judgment in the full amount claimed by Symczyk plus her attorneys' fees and costs.  The company then sucessfully moved to dismiss arguing that the offer of judgment had mooted Symczyk's claim and the suit.

The Third Circuit reversed and relied principally on the "relation-back" doctrine advanced in the Supreme Court's decision in Sosna v. Iowa, 419 U.S. 393 (1975). In Sosna, the Supreme Court ruled that a Rule 23 class action was not mooted where the named plaintiff's claim was extinguished before the district court reached the merits of the class certification. In such instances, the Court ruled, the issue of class certification relates back to the date the complaint was filed.

The FLSA, unlike a Rule 23 class, requires that class members affirmatively opt-in.  But the Third Circuit found this a distinction without a difference:

Although the opt-in mechanism transforms the manner in which a named plaintiff acquires a personal stake in representing the interests of others, it does not present a compelling justification for limiting the relation back doctrine to the Rule 23 setting. The considerations that caution against allowing a defendant's use of Rule 68 to impede the advancement of a representative action are equally weighty in either context.  Rule 23 permits plaintiffs to "pool claims which would be uneconomical to litigate individually." Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985). Similarly, section 216(b) affords plaintiffs "the advantage of lower individual costs to vindicate rights by the pooling of resources." Hoffman-La Roche, 493 U.S. at 170. Rules 23 promotes "efficiency and economy of litigation." Similarly, "Congress' purpose in authorizing section 216(b) class actions was to avoid multiple lawsuits where numerous employees have allegedly been harmed by a claimed violation or violations of the FLSA by a particular employer." Prickett v. DeKalb Cnty., 349 F3d 1294, 1297 (11th Cir. 2003).

When Rule 68 morphs into a tool for the strategic curtailment of representative actions, it facilitates an outcome antithetical to the purposes behind section 216(b). 

Robert L. Abell
www.RobertAbellLaw.com 

Failure to Disclose Retaliatory Motive Leaves Causation Chain Intact

To prove a retaliation claim a plaintiff must show a link between his or her protected activity and the adverse employment action taken against them. A common defense raised by employers is that the causation link was broken by the action of a third party or entity, which the employer asserts had no retaliatory motive whatsoever.  A police department's efforts to do so was discussed in a recent post, Police Disciplinary Board's Rubberstamp Does Not Break the Causation Chain of Supervisor's Retaliation, Third Circuit Rules. This scenario was again presented in the First Circuit's recent decision in Tuli v. Brigham & Women's Hospital, No 08-2026, 09-1597, 09-1603, 09-1731 (August 29, 2011).

Dr. Sagun Tuli, a female neurosurgeon at Boston' prestigious Brigham & Women's Hospital, was subjected to a sexually hostile work environment, as a previous post discussed, Accumulated Effect of Incidents of Humiliating, Offensive Comments Directed at Women and Work-Sabotaging Pranks, Taken Together, Can Constitute a Hostile Work Environment, First Circuit Rules.

Dr. Tuli also presented a retaliation claim the basis for which were numerous prior reports by her of sexually hostile and inappropriate conduct and statements by her supervisor, a Dr. Arthur Day, and a colleague, a Dr. Dong Kim. These reports were made to, among others, Dr. Anthony Whittemore, the hospital's medical director.  Dr. Tuli also expressed concerns with some patient care issues by Dr. Day. 

Eventually, Dr. Day, as Dr. Tuli's supervisor, made a presentation to the hospital's credentials committee that Dr. Tuli had emotional problems and was in need of anger management counselling.  The credentials committee conditioned renewal of Dr. Tuli's practice privileges on her completion of a counselling program. Subsequently, in response to a committee demand for more specific information, Dr. Whittemore re-presented Dr. Tuli's case, providing a "somewhat more balanced opinion, but mostly rehashing the issues Day" had earlier discussed. Neither Whittemore nor Day informed the credentials committee of Tuli's reports and complaints about Day's sexual harassment of her or her concerns regarding patient care issues. The committee stood by its requirement that Dr. Tuli undergo counselling. This requirement is subject of another earlier post, Is Employer-Ordered Counselling An Adverse Employment Action?

Since Dr. Tuli claimed that the credentials committee's requirement that she undergo counselling was an adverse employment action, the issue was whether the causative link between her protected activity -- reporting a sexually hostile work environment -- was broken because, as the First Circuit noted, "there is no suggestion that individuals on or involved with the committee other than Day harbored any improper animus or acted with retaliatory motive in voting to compel Tuli to seek and follow an evaluation."

The existence of the causation link, of course, is a question of fact for the jury. The First Circuit ruled that its finding was well-supported by the evidence, explaining as follows:

     But Day represented the Hospital as the head of his department in presenting the case against Tuli, cf. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1191 (2011), and Whittemore–-who knew the background--re-presented it without qualifying information about Day. Day presented the case even though he had been the subject of adverse critiques by Tuli of his own performance as part of her official responsibilities and Day was the subject of her complaints about Day's own wrongful conduct toward her. It was for the jury to decide whether the committee was misled by Day in a way that altered the outcome.

    Nor was the jury obliged to think the causal chain broken by the second round of review. Whittemore was himself relying in part on information from Day, and he did not tell the committee of the complaints that Tuli had made about Day; although some members were apparently aware of some of the background, it was not disclosed at the meeting. Two committee members testified that knowledge of the complaints against Day would have been "important information."

Robert L. Abell
www.RobertAbellLaw.com

Is Employer-Ordered Counselling an Adverse Employment Action?

For a retaliation claim to be actionable the employee must have suffered an "adverse employment action." The Supreme Court explained in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006), would vary from case to case but would always be the type of action that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." This principle was applied in the First Circuit's recent decision in Tuli v. Brigham & Women's Hospital, No 08-2026, 09-1597, 09-1603, 09-1731 (August 29, 2011).

Dr. Tuli, a female neurosurgeon at Boston's prestigious Brigham & Women's Hospital, was subjected to a sexually hostile work environment as discussed in a prior post, Accumulated Effect of Incidents of Humiliating, Offensive Comments Directed at Women and Work-Sabotaging Pranks, Taken Together, Can Constitute a Hostile Work Environment, First Circuit Rules. Dr. Tuli also claimed that she was retaliated against for complaining of and reporting the conduct that formed the basis of her hostile work environment claim. She cited an order from the hospital's credentials committee that she obtain anger management counselling as a condition of having her staff and practice credentials renewed as an adverse employment action.

The First Circuit regarded it as a difficult question, recognizing the hospital's legitimate interest in protecting its patients from a doctor that needs treatment or counselling. However, in the context of this case, the court ruled that the jury could properly have found the ordered counselling an adverse employment action, explaining as follows:

      Tuli provided sufficient evidence from which a jury could conclude that the consequences of the obligatory counseling ordered by the Hospital--invasion of privacy, potential stigma, and possible impact on employment and licensing elsewhere--"might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). Obligatory counseling is not a typical adverse action but the impact here could be deemed sufficient by the jury if the action was prompted by a retaliatory motive.

Robert L. Abell
www.RobertAbellLaw.com

Is Evidence of Offensive Conduct Unknown to a Hostile Work Environment Plaintiff Admissible?

Is offensive conduct or statements unknown to a hostile work environment plaintiff admissible? The First Circuit answered yes in its recent decision, Tuli v. Brigham & Women's Hospital, No 08-2026, 09-1597, 09-1603, 09-1731 (August 29, 2011), which was discussed in a previous post, Accumulated Effect of Incidents of Humiliating, Offensive Comments Directed at Women and Work-Sabotaging Pranks, Taken Together, Can Constitute a Hostile Work Environment, First Circuit Rules.

The plaintiff, Dr. Sagun Tuli, a female neurosurgeon, alleged a hostile work environment based on sex and proved it, as the earlier post discussed, with ample evidence. On appeal, in addition to other alleged errors, the hospital also complained that evidence of comments by Dr. Tuli's two principal antagonists, a Dr. Arthur Kim and a Dr. Dong Kim, "as well as testimony from Eileen Hardy about a penis statue and cookie jar with women's underpants in Day's office and sexual drawings Day downloaded onto her Palm Pilot" were inadmissible. 

The First Circuit rejected the hospital's argument that the evidence was inadmissible because Tuli had not been aware of the conduct and/or statements, explaining as follows:

 If certain of the offensive conduct was unknown to Tuli at the time, it remained relevant for purposes of showing notice to the Hospital and toleration of a general climate of offensive remarks and displays. See Cummings v. Standard Register Co., 265 F.3d 56, 63-64 (1st Cir. 2001). Those of Kim's statements made off-site at a going-away party remained relevant to the hostile work environment claim, e.g., Parrish v. Sollecito, 249 F. Supp. 2d 342, 350-52 (S.D.N.Y. 2003), and Tuli reported Kim's conduct to [the hospital's medical director].

Robert L. Abell
www.RobertAbellLaw.com

 

Accumulated Effect of Incidents of Humiliating, Offensive Comments Directed at Women and Work-Sabotaging Pranks, Taken Together, Can Constitute a Hostile Work Environment, First Circuit Rules

Defining what constitutes an unlawful hostile work environment depends in large degree on the situation, the type of conduct involved, the relationship of the parties, the duration and frequency of the conduct and many other factors. The First Circuit took up this issue in its recent decision in Tuli v. Brigham & Women's Hospital, No 08-2026, 09-1597, 09-1603, 09-1731 (August 29, 2011).

Dr. Sagun Tuli, a female neurosurgeon at Boston's prestigious Brigham & Women's Hospital, was subjected to a several years long campaign by her supervisor, a Dr. Arthur Day, and a co-worker, Dr. Dong Kim, of demeaning and belittling comments and conduct that a jury found to establish an unlawful hostile work environment based on gender.

The First Circuit in affirming the jury's verdict recited the ample evidence of a hostile work environment as follows:

 2002-03: Day ignores Tuli at conferences by stating, "[L]et's ask the spine guys, Eric and Marc, what they think," and omitting her despite the fact that she is also a spine surgeon.

2004: At a graduation dinner and in front of a female resident, Day asks Tuli, "Can you get up on the table to dance so you could show them how to behave."

2004: In the summer, Tuli attends a bachelorette party for a coworker and sees a blow-up doll with a picture of her face attached to it.

2004: Day makes comments on different occasions: "You're just a little girl, you know, can you do that spine surgery?" "Oh, girls can do spine surgery?" "Are you not strong enough to use the hand instruments?"

2005: In February or March 2005, with his arm on Tuli's back, Kim says, "Why don't we leave this place and go to the Elliott Hospital so I can give you an oral exam"; "I think you're really hot"; and "I imagine you naked."

2005: Early in 2005, Day sits in on Tuli's teaching conference and disagrees with Tuli's lecture. He does this more than once, and Tuli does not believe that he did so during male doctors' teaching conferences.

2005: Residents, who are supervised by Day as residency director, ignore Tuli's pages, fail to assist her on rounds, and fail to show up for clinical duties. In the summer, Tuli notices that she is given less-experienced, junior residents for her cases.

6/05: Tuli becomes aware of a Hospital-affiliated party planned with "strippers and cages and beer kegs." Although it was supposed to celebrate the incoming chief residents, a new female chief resident was excluded. Day approves of the party and of outside funding for it.

2005: In September or October, Day and Tuli meet to clear the air, and Day says, "Our relationship is like that of lovers and you've cheated on me," with his hand on her arm; he also calls her "deranged." When she attempts to shake his hand at the end of the meeting around 10:00 p.m., he gives her a prolonged hug.

11/05: A resident throws Tuli into the scrub sink and then the garbage.

12/06: Kim states, "Oh, could you wear one of those belly dancing outfits and show us a dance?"

2007: Kim states that he would "like to have the opportunity to sexually harass" Tuli; Tuli observes him fondling a physician assistant at a department event.

5/07: Day looks in on Tuli's spine surgery and makes "some comment to the effect of whether [she] was able to do that case because [she] was a girl, are you sure you can do that, you're just a girl, something to that effect."

8/07: Day bars Tuli from spine oncology research saying that he had "a guy in mind" for the job.

Without specifying dates, Tuli also reported that Day had given her other prolonged hugs and had held her hand as they walked at work. She also testified that Day had questioned her authority in multiple teaching conferences and had made comments repeatedly about Tuli "being a little girl" and questioning whether she could do a "big operation"; the incidents noted above were particular examples of this recurrent behavior for which she could remember specific dates.

This scenario, a prolonged accumulation of repeated and similar incidents, supported the jury's finding of a hostile work environment, as the "accumulated effect of incidents of humiliating, offensive comments directed at women and work-sabotaging pranks, taken together, can constitute a hostile work environment." O'Rourke v. City of Providence, 235 F3d 713, 729 (1st Cir. 2001).

Dr. Tuli was represented by Michael S. Bonner and Gregory J. Aceto of the Boston law firm, Johnson & Aceto, LLP.

Robert L. Abell
www.RobertAbellLaw.com

 

 

Police Disciplinary Board's Rubberstamp Does Not Break the Causation Chain of Supervisor's Retaliation, Third Circuit Rules

Police officer Raymond Carnation, a white man, complained repeatedly of racial discrimination in the Philadelphia police department directed at his colleagues who were black.  He went through the proper channels but his reports were not well-received, and he was told, in essence, to shut up.  When he insisted on doing the right thing, his commander, a Captain William Colarulo, filed charges against him to get him fired.

Colarulo's charges against Carnation were heard by the police department's Police Board of Inquiry (PBI). The PBI accepted Colarulo's recommendation that Carnation be terminated and then the police commissioner signed off on Carnation's termination also.

After he was fired, Carnation filed suit, claiming that he was fired in violation of Title VII's anti-retaliation provisions. A jury saw right through the police department's scheme: it awarded Carnation $2,000,000 in compensatory damages (which was reduced to $300,000 because of Title VII's damages cap), $208,781 in back pay and $46,560 in prejudgment interest.  The essential finding by the jury was that Colarulo filed charges against Carnation in retaliation for Carnation's opposition to racially discriminatory practices.

The city argued on appeal that the PBI's action broke the retaliatory chain of causation put in motion by Colarul0's filing of charges against Carnation. This required consideration of the Supreme Court's decision in Staub v. Proctor Hosp., 131 SCt 1186 (2011). The Third Circuit rejected this argument because the PBI proceeding had at best minimal due process, the record reviewed by the police commissioner was limited and Carnation had a very limited right of appeal.  The Court further observed:

Even if the City had proven that the PBI was a truly independent body, this alone would not undermine the jury's determination, based on all the evidence, that there was a causal connection between Carnation's termination and his involvement in protected activity.

The Third Circuit decision is McKenna v. City of Philadelphia, No 10-3430 (August 17, 2011). Brian M. Purcelli of Newtown, Pennsylvania represented officer Carnation.

Robert L. Abell
www.RobertAbellLaw.com