Kentucky Employment Law Blog

ADA Applies During Job Training

"The plain language of the ADA covers discrimination on the basis of disability during job training," the Sixth Circuit observed while reversing a summary judgment in Rosebrough v Buckeye Valley High School, No 10-4057 (August 8, 2012). 

Tammy Rosebrough, who was born with no left hand, was training for a bus driver job, a position that required her to have a CDL. She had to complete the training before she could get the CDL and be fully-qualified for the bus driver job. But completion of her training got derailed and she filed suit claiming disability discrimination in violation of the ADA. The district court granted a summary judgment to the employer, ruling that Rosebrough was not qualified to be a bus driver because she did not have a CDL. 

Rosebrough's point was that she was discriminated against during her job training. The Sixth Circuit understood, reversed the district court and observed:

The plain language of the ADA covers discrimination on the basis of disability during job training. 42 USC 12112(a)("No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."). The coverage provisions include this expansive list, extending beyond recognized traditional employment activities, to prevent periods -- including training periods -- during which discrimination might be undertaken with impunity.  Thus, the statutory inclusion of "job training" protects individuals while they receive the training required to perform the essential functions of their ultimate job position; it protects them from discrimination that could deny them the means to obtain qualifications necessary to undertake that position. It cannot be disputed that the ADA covers individuals in training without regard to whether they are called employees, conditionally-hired employees, trainees, or a title specific to one employer.

Is Psychological Counseling A Medical Examination Under the ADA?

The Americans With Disabilities Act (ADA) prohibits employers from "requiring a medical examination" or "making inquiries of an employee as to whether such employee is an individual with a disability ... unless such examination or inquiry is shown to be job-related and consistent with business necessity."  In a case of first impression, the Sixth Circuit has ruled that an employer's requirement that an employee obtain psychological counselling is a requirement for a medical examination under the ADA. Kroll v. White Lake Ambulance Authority, No 10-2348 (August 22, 2012).

Robert L. Abell
www.RobertAbellLaw.com 

 

Noncompete Agreements Under Kentucky Law

Noncompete agreements serve important public and commercial interests: they allow businesses to allow employees while purporting to protect them against the unhappy prospect of training their future competition. On the other hand, noncompete agreements are contrary to important public and commercial interests: they restrict the ability of qualified individuals from working in their field. Because of these cross-purposes the enforceability of noncompete agreements under Kentucky law is a constant question for both employers and individual employees. 

The Court of Appeals of Kentucky, in an opinion written by Chief Judge Glenn Acree, recently decided Charles T. Creech Incorporated v. Donald E. Brown, No 2011-CA-629 (August 17, 2012), identified six factors that should almost always by considered by a circuit court in assessing the enforceability of a noncompete agreement:

1. The nature of the industry. Is it highly competitive and cut-throat?
2. Characteristics of the employer. Basically, would the  employer truly be competing with the employer and, if so, would the competition actually be detrimental?
3. The history of the relationship between the employer and employee.  Significant to this analysis is when -- at the beginning or somewhere after that -- in the employer-employee relationship was the noncompete agreement signed.
4. The interests the employer seeks to protect. This factor again requires consideration of whether "the employer's own innovation or distinctive approach to its business [will] be used against it to its own detriment[.]"
5. Hardship on the employee. Are "the restrictions on future employment intended to protect the employer's interests [too] broad as to unduly burden the employee's ability to find work?"
6. Impact on the public. This one rarely will come into play.

This assessment will be done by the presiding circuit court judge, as the Court of Appeals emphasizes that circuit courts have and will maintain "blue pencil" authority to reform or amend restrictions or clauses in a noncompete agreement.  As a practical matter, there will be very little appellate oversight as fact-finding will be reviewed deferentially on a substantial evidence basis and amendments (or not) likewise deferentially on an abuse of discretion standard.  

The case is not final, however. The Kentucky Supreme Court decided to review the case in April 2013; it was briefed by the parties and oral argument scheduled for November 2013. In February 2014, the Court, on its own motion, put the case on hold. So we will just have to see what happens.

Robert L. Abell
www.RobertAbellLaw.com 

Related articles

Does A Corporate Executive Breach His Fiduciary Duty Where He Has An Undisclosed Interest In a Noncompeting Company?

Is Causation A Jury Issue? Kentucky Court of Appeals Says No, Vacates $300,000+ Retaliation Verdict

Noncompete Clauses Increasingly Pop Up in Array of Jobs - New York Times

NYT Article on Noncompete Clauses: They're Everywhere!

Help Wanted: How noncompete agreements affect employees

Noncompete Agreements Under Kentucky Law

Noncompete Clauses Are Everywhere, but Does Your Business Need Them?

Noncompete Clauses Increasingly Pop Up in Array of Jobs

Noncompete Clauses Increasingly Pop Up in Array of Jobs

Is the Inference of Discrimination Defeated If One Comparator Was Treated Similarly But Others Were Not?

The Sixth Circuit's recent decision in Ondricko v. MGM Grand Detroit, No 10-2133 (August 8, 2012), which was discussed in a recent post, Admission That Employment Decision Was Made To "Maintain Racial Balance" Is Direct Evidence of Discrimination, also addressed the employer's argument that it had treated a least one other similarly-situated male employee the same as the plaintiffa woman, the argument being essentially that the employer also fired a male employee over similar conduct so it should be off the hook for the plaintiff's sex discrimination claim. The Sixth Circuit rejected this argument:

... given the four similarly situated male employees who were not terminated based on similar conduct, MGM cannot defeat the inference of a discriminatory motive with one comparator who was treated similarly.

The Sixth Circuit's opinion was written by Judge Jane Stranch joined by Judge Boyce Martin and Judge Cornelia Kennedy.

Robert L. Abell
www.RobertAbellLaw.com 

One Percent Pay Increase Differential Is An Adverse Employment Action, Sixth Circuit Rules

A one percent pay increase differential is an adverse employment action, the Sixth Circuit has ruled in Szeinbach v Ohio State University, No 11-3002 (August 10, 2012), reversing a summary judgment granted by the district court. 

Sheryl Szeinbach is a tenured faculty member in Ohio State's College of Pharmacy. She claimed that she suffered retaliation for supporting a colleague who alleged discriminatory treatment by the university. One of the ways that she sought to prove the retaliation was a 1% smaller pay increase that she was allowed compared with her peers. The district court ruled that this was too small to amount to an adverse employment action. The Sixth Circuit reversed and explained as follows:

Given that the 1% salary-increase differential in White v. Baxter Healthcare Corp., 533 F3d 381 (6th Cir 2008), was held to "constitute a significant change in employment status ... or a decision causing a significant change in benefits," the district court should not have granted summary judgment to OSU on Szeinbach's salary-differential claim as to 2007 and 2008 on the grounds that OSU did not take an adverse employment action.

The Sixth Circuit's opinion was written by Judge Helene White joined by Judges Jane Stranch and Jerome Farris, a visiting judge from the Ninth Circuit.

Robert L. Abell
www.RobertAbellLaw.com 

Admission That Employment Decision Was Made To "Maintain Racial Balance" Is Direct Evidence of Discrimination

An employer's admission that an employment decision was made in part to "maintain racial balance" is direct evidence of discrimination the Sixth Circuit has ruled in Ondricko v MGM Grand Detroit, LLC, No. 10-2133 (August 8, 2012).

Kim Ondricko, a white female, was employed as a casino's floor supervisor in charge basically of supervising the card-game dealers.  The casino fired her, failure to properly supervise card shuffle procedures being the proffered reason.  Around the same time,  a black male floor supervisor, a man named Black, was given only a three-day suspension for a violation similar to Ondricko's.  Ondricko's supervisor, a Hannon, asked the casino's vice-president, O'Connor, why Black was getting more lenient treatment than Ondricko. O'Connor explained the considerations as follows, referring also to a black female named Boyd, as the Court explained:

... O'Connor also brought up Boyd, a black female, during that meeting, saying "her attorneys had already called and wanted to know what we were going to do about Kim." O'Connor than said "do you think I wanted to fire Kim, I didn't want to fire Kim, how could I keep the white girl." 

In reversing a summary judgment granted the employer, the Sixth Circuit found O'Connor's statement that his intent was to maintain racial balance to be direct evidence of discriminatory intent. The Court explained as follows:

This statement was made by an MGM decisionmaker shortly before notifying Ondricko of her termination, immediately after discussing inquiries by a fired black female employee's attorney, and in the same meeting where MGM's decision not to fire a black male for similar conduct is discussed. Under these circumstances, and in light of the fact that Boyd had a much worse disciplinary record than Ondricko, it is certainly reasonable to conclude from O'Connor's statement that MGM was motivated by a desire to be racially balanced in its termination for misconduct related to shuffling.  See Taylor v Board of Education of Memphis City Schools, 240 F.Appx. 717, 720 (6th Cir 2007)(statement that another applicant was hired to "maintain racial balance" plainly indicated unlawful discrimination may have been a motivating factor in the hiring decision).

The question in discrimination cases is whether discrimination (here race discrimination) is a substantial and motivating factor for the the employment decision, here a termination. The casino, it appears from O'Connor's statement, fired Ondricko, a white female, in substantial part to create a defense against a possible race discrimination claim by Boyd, a black female. In this scenario the employer has in fact admitted that Ondricko's race was a substantial factor for her termination.

Robert L. Abell
www.RobertAbellLaw.com 

 

Police Officer's Report to Internal Affairs Protected by First Amendment

A police officer's report to the police department's internal affairs bureau is protected by the First Amendment a federal district court in New York has ruled in Griffin v City of New York, No. 10-CV-2592 (EDNY, July 31, 2012). This is an important ruling that correctly recognizes the limits of the Supreme Court's misguided decision in Garcetti v Ceballos, 547 U.S. 210 (2006).

The Supreme Court ruled in Garcetti that the First Amendment offers no protection for public employees when they make statements pursuant to or commanded by their official duties.  Garcetti has led to numerous bad results such as Vose v. Kliment, 506 F3d 565 (7th Cir 2007), where a narcotics supervisor's report of corruption in his unit was ruled not protected by the First Amendment, and Sigsworth v. City of Aurora, Illinois, 487 F3d 506 (7th Cir 2007), where the court ruled that a task force investigator's reports that targets of the task force were being tipped off by some of its members were not protected by the First Amendment.  Garcetti and these decisions suggest that public employees would be well-advised to report wrongdoing in their departments or units to authorities removed, something that in the context of police work may not be possible. 

The plaintiff in Griffin was a 26-year police detective who reported to internal affairs the attempts of another detective to coerce him into accepting blame for a botched homicide investigation. The city claimed that this report was part of the detective's duties and under the Garcetti rule he was not entitled to any First Amendment protection. 

The district court per Judge Raymond Dearie ruled that the Garcetti rule did not apply for the following reasons:

• Garcetti recognized that there could be cases where it was debatable whether a report was required by a public employee's duties
  
  
• where no clear "official duty" to speak is present, the focus must be on the "subject, manner and context of the speech to determine whether it relates to topics that are 'indispensable prerequisites to effective' performance of the speaker's 'primary employment responsibility"
  
  
•  the city's police manual directing that police officers have an absolute duty to report misconduct in the police department to internal affairs did not preclude First Amendment protection because (1) Garcetti rejected the notion that employers can restrict employees' free speech rights through excessively broad statements of policy or job descriptions; and, (2) reporting internal misconduct to internal affairs was neither encouraged nor rewarded, a reality that undermined the city's position
  
  
• the plaintiff's job was to "police the public, not other police officers" and reporting internal misconduct was not part-and-parcel of the performance of his official duties
  
  
• plaintiff's report to internal affairs was not within his chain of command, especially since any member of the public could make a report to internal affairs

This is a thoughtful and well-reasoned decision by a district judge, who acknowledges that "some applications of Garcetti may be troublesome." Indeed, Garcetti can yield some decisions that are very much counter to the public interest.

Another First Amendment law enforcement case was discussed in a recent post: Deputies' Report of Sheriff's Eavesdropping Addressed Matter of Public Concern and Was Protected by First Amendment.  

Robert L. Abell
www.RobertAbellLaw.com