Kentucky Employment Law Blog

Pregnancy Discrimination - An Employer Must Accommodate A Pregnant Employee As Done Other Employees "Similar In Their Ability or Inability To Work," Supreme Court Rules

The Pregnancy Discrimination Act requires an employer to accommodate a pregnant employee as the employer accommodates other employees "similar in their ability or inability to work" the Supreme Court ruled today in Young v. UPS.  The Court's 6-3 ruling reinstated Peggy Young's suit while remanding the case to the Fourth Circuit.

The Court's opinion outlined the parameters of a pregnancy discrimination case.  At the initial stage, a pregnant employee must prove that she belongs to the protected class (which means that she is pregnant), that she sought accommodation (that for some pregnancy-related reason she requested some alteration of her job duties or tasks), that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.”  This doesn't require much: the Court again emphasized that this burden is "not onerous."  

This requires the employer to come up with some passably legitimate explanation for not accommodating the pregnant employee.  But the employer's reason, the Court stated, must consist of more than "simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ('similar in their ability or inability to work') whom the employer accommodates."  

But of course it does not end there, the pregnant employee must demonstrate the employer's explanation to be largely nonsense, to be pretextual in the lexicon of employment discrimination litigation.  This is done by "sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's 'legitimate, nondiscriminatory' reasons are not sufficiently strong to justify the burden, but rather -- when considered along with the burden imposed -- give rise to an inference of intentional discrimination."  Young had done so with proof that UPS accommodated most employees who had restrictions because of some reason other than pregnancy but did not accommodate any pregnant employees.  

Robert L. Abell
www.RobertAbellLaw.com

 

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Retaliation - Is the Denial of Leave Proof of Retaliation?

Really a pretty easy question since denial of leave could be itself an adverse employment action. Nevertheless, it gets missed as the shown by the Fourth Circuit's reversal of a summary judgment recently in Jacobs v North Carolina Administrative Office of Courts: 

We note that, in addition to serving as evidence of hostility, the denial of leave can itself be an adverse employment action compensable under the ADA’s retaliation provision. Wells v. Gates, 336 F. App’x 378, 383–384 (4th Cir. 2009) (per curiam).

Jacobs is an excellent opinion examining numerous issues pertinent to ADA and disability discrimination cases.

Robert L. Abell
www.RobertAbellLaw.com

 

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"We close by noting our disappointment with Hospira's approach to summary judgment practice"

In Malin v Hospira Inc, 762 F3d 552 (7th Cir 2014), the Seventh Circuit reversed a summary judgment granted the defendant-employer, Hospira Inc, on the plaintiff's FMLA and Title VII retaliation claims.  The court's analysis is unremarkable, even as it takes pains to emphasize that it has never erected a temporal proximity bar to a retaliation claim and address an evidence issues, but its conclusion highlights features of summary judgment practice that many will surely and dismayingly find all too familiar:

• Both in the district court and in this appeal, Hospira has misrepresented the record and Malin's legal arguments.
  
  
• Hospira repeatedly cherry-picked isolated phrases from Malin's deposition and claimed that these "admissions" doomed her case.
  
  
• Hospira's presentation of the evidence amounted to nothing more than selectively quoting deposition language it likes and ignoring deposition language it does not like.
  
  
• Hospira seems to have based its litigation strategy on the hope that neither the district court nor this panel would take the time to check the record.

While the court's condemnations are most unusual the practices that it cites are not; cherry-picking of evidence, misrepresenting the record and selectively quoting deposition language the defendant likes and ignoring deposition language it does not like is the norm, not the exception.  

I have previously posted about this case, Retaliation & Temporal Proximity - "We reject the idea that the passage of a particular amount of time between protected activity and retaliation can bar the claim as a matter of law."  I also again thank Rick Seymour for bringing this case to my attention and others over the NELA listserve.

Robert L. Abell
www.RobertAbellLaw.com 

Retaliation & Temporal Proximity - "We reject the idea that the passage of a particular amount of time between protected activity and retaliation can bar the claim as a matter of law."

Temporal proximity between protected activity and an adverse employment action suggests or doesn't a causative link between the two.  But how long is too long? An employer argued to the Seventh Circuit in Malin v Hospira, Inc, 762 F3d 552 (7th Cir 2014) that a "three-year time interval is a 'fatal time gap' that forecloses any inference of retaliation." The court rejected this idea and explained as follows:

"The mere passage of time is not legally conclusive proof against retaliation." Robinson v Southeastern Pennsylvania Transp Auth Red Arrow Div, 982 F2d 892, 894 (3d Cir 1993); see also Carlson v CSX Transp, Inc, 758 F3d 819, 828-30 (7th Cir 2014)(rejecting timing-based rule at the pleading stage and collecting cases); Paluck v Gooding Rubber Co, 221 F3d 1003, 1009010 (7th Cir 2000)("of course, the fact that a year passed between employee's protected expression and her termination does not mean that she cannot prove that retaliation caused her discharge"); Gee v Prinicpi, 289 F3d 342, 345-47 (5th Cir 2002)(reversing summary judgment for employer where employee's complaint and allegedly retaliatory failure to promote were separated by two years); Woodson v Scott Paper Co, 109 F3d 913, 916 (3d Cir 1997)(affirming verdict for plaintiff; reasonable jury could find retaliation where protected activity and plaintiff's termination were separated by two years). 

This is really nothing more than a fair, common-sense review of the factual situation that this case presented. The plaintiff, Malin, presented evidence of numerous retaliatory acts occurring during the three-year period at issue that culminated in the ultimate and actionable adverse employment action: her demotion.  

We recently discussed a Sixth Circuit case where that court properly reviewed the facts before it indicating that a 15-month period between the protected activity and the retaliation was not that significant.  Temporal Proximity When the Employer Retaliates at the Earliest Opportunity, Although 15 Months Later. 

The Malin case was brought to my attention by Rick Seymour on the NELA listserve, an invaluable resource enriched by truly gifted lawyers all over the country.

Robert L. Abell
www.RobertAbellLaw.com

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False Claims Act - Disclosures during Government Audit Are Not a "Public Disclosure"

A predicate to a viable whistleblower claim under the False Claims Act (FCA) is that the fraud charged not have been the subject of a prior "public disclosure." If the fraudulent conduct has been involved in an earlier and settled government audit and investigation, discussed and disclosed by those involved has there been a "public disclosure"? "No" answered the Sixth Circuit recently in US ex rel Whipple v Erlanger Medical Center.

Robert Whipple, the whistleblower, filed suit under the FCA charging that the hospital corporation had engaged in four types of fraud: (1) billing for inpatient care for patients that should have been billed on an outpatient or observation basis; (2) surcharges for observation services added to outpatient surgeries; (3) inpatient admissions of patients in order to bill for hemodialysis procedures not reimbursable if performed on an outpatient basis; and (4) carotid artery stenting procedures performed without authorization. Unknown to Whipple, the government had previously done an audit and investigation as to fraud related to inpatient admissions, and the hospital has paid back to the government for $477,140.42. Since the grounds for a FCA whistleblower claim require that there have been no prior "public disclosure" related to the fraud charged, the question before the Sixth Circuit was whether disclosures and discussions involved in this audit and investigation constituted a "public disclosure."

The investigation had started with an anonymous tip to a fraud hotline. The federal Department of Health and Human Services (DHHS) then referred it to a private contractor, AdvanceMed, to investigate. AdvanceMed identified four areas for further inquiry, asked for and received further information from Erlanger, which it reported on to DHHS. Erlanger hired Deloitte Financial Advisory Services as a consultant for the investigation. The matter was closed following payment.

The Sixth Circuit rejected the two arguments made by Erlanger that a "public disclosure" occurred during the discussions and disclosures related to the audit and administrative investigation. First, the court joined every other circuit that has addressed the issue, except for the Seventh Circuit, and held that a "public disclosure" requires "some affirmative act of disclosure to the public outside the government. Therefore, Erlanger's disclosure of information to the government during the audit and investigation was not a "public disclosure."

Second, neither the disclosures to AdvanceMed by DHHS nor the disclosures by Erlanger to its consultant, Deloitte, constituted a "public disclosure." All of these disclosures, of course, remained confidential and unknown until disclosed in this litigation. Accordingly, none of them constituted a "public disclosure" either.

The Sixth Circuit's opinion was authored by Circuit Judge Ralph Guy and joined by Circuit Judges Eric Clay and Helene White.

Robert L. Abell
www.RobertAbellLaw.com

 

 

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