Suits In The WorkPlace

Who's That Knocking On My Door?

            The storyline appearing in the December 29, 2005, New York Times is alluring and lurid -- a federal court rules that a fired employee who worked installing and repairing phone lines in people's homes, and who was also found not guilty by reason of insanity after he tried to murder a quadriplegic high school classmate by unplugging his respirator, should have been rehired by the company.  The company's failure to do so meant that it was liable for a $500,000 jury verdict, as well as attorneys' fees, according to the 9th Circuit Court of Appeals.  Josephs v. Pacific Bell, et al., No. 03-56412 (Dec. 27, 2005).

            Outrageous, right?  Once again, the 9th Circuit proves that it doesn't live in the real world.  Its decision puts the employer, Pacific Bell, between the rock of liability under the Americans With Disabilities Act, and the hard place of a negligent retention lawsuit as the result of having an attempted murderer with a history of mental instability making service calls on its customers' homes.  What's an employer to do?

            Well, hold on.  The verdict is not only understandable, it is practically mandated by the way the company handled the matter.  Unfortunately for the employer, comments made by its management team at the plaintiff's grievance arbitration focused on the plaintiff's mental disability rather than the conduct that was of concern to Pacific Bell.  For example, the general manager for the company testified about his concern in employing somebody with the plaintiff's "background" to work in people's homes and rejected a request by the union to put the plaintiff in a different job that did not involve customer contact because, "people can still walk by," and because the company, "had an image to uphold."  A Pacific Bell VP attending another part of the grievance process told the union representative that the company would not reinstate the plaintiff because he had spent time in a mental ward and that Pacific Bell could not afford to have people "out there" who had been released from a mental institution.  Given these comments, it is no surprise that the 9th Circuit found that there was adequate support for a jury's verdict that Pacific Bell regarded the plaintiff as disabled under the ADA and that the basis of the company's decision was this disability, rather than the conduct in which plaintiff engaged.  The company's position that it regarded plaintiff as unemployable because of his activities was undermined further by the fact that it had allowed an employee convicted of felony domestic violence (although not attempted murder) to return to a service technician position.

            While I cringe at the prospect faced now by Pacific Bell, this outcome is not surprising.  Employers have to focus on conduct in these types of cases, and not on the underlying cause, as the basis of an employment decision.  To use an every day example, it is permissible to discharge someone for driving while intoxicated, but not for being an alcoholic.  Even in California.

If at first you don't succeed, lie lie again

Here's a set of facts that could leave you sick to your stomach: Employee checks her leave balance and determines she has almost no sick time left. Soon thereafter, she shows up for work at 6:30 A.M. and leaves within 2 hours. The next day, she goes to physician assistant about her gastroesophigal reflux disease to get the absence the day before certified as a "chronic condition" and therefore an FMLA-qualified absence. Physician assistant says no, employee goes over her leave time, and the employer terminates her in accordance with both its policy and the collective bargaining agreement.

Part Deux:  Employee goes to a physician to try and get the absence covered under FMLA. The physician also says no.

Finally, going for the medical trifecta, the employee goes to a nurse practitioner, who gives the employee a note that says "Reports missed day of work 7/31/02 due to stomach pain seen in office today with epigastric pain." The nurse practitioner then completes the FMLA form certifying the condition as "chronic". Employee gives the form to the union rep, who gives it to the employer, who sticks to its guns.

Employee sues for FMLA discrimination. Employer moves for summary judgment. The result? The federal district court for the Northern District of Iowa denied summary judgment. In an unpublished opinion, the court held the Employer's request for medical certification and whether or not the Employer gave Employee a chance to fix any problem with that certification were triable issues of fact. It also held that the law does not restrict the employee's ability to seek second (and in this case third) opinions with regard to certifications, so long as the certification is made within the DOL-required 15 day time period. Makes us wonder how many medical appointments one could schedule for one day....

Cook v. Electrolux Home Products Inc., N.D. Iowa, No. 04-3063-MWB, unpublished opinion, 11/28/05.

Depends on what you mean by "adverse"

The Supreme Court yesterday granted certiorari to apparently end the debate over what constitutes adverse employment action in a retaliation case.

In a case coming out of the Sixth Circuit, a female forklift operator got reassigned to a more physically demanding job after she made a sexual harassment complaint. The Sixth Circuit, sitting en banc, agreed with the employee that the action was adverse. The only catch was that they couldn't agree on what standard to apply to reach their decision.

The employers in this case argue that there's basically a three way split. The Ninth Circuit and EEOC see adverse employment action as anything "reasonably likely to deter" protected activity (e.g., "he looked at me funny"). The Fifth and Eighth Circuits, ever the bastions of conservatism, look for a definitive or ultimate employment action, such as a termination. At least four circuits use the "materially adverse change in the terms of employment" test.

It will be interesting to see how narrowly the Court will choose to interpret the definition, and what the corresponding effect on employers will be. We'll keep you posted when the decision comes out.

White v. Burlington Northern, 364 F.3d 789 (6th Cir. 2004), cert. granted 2005 U.S. LEXIS 9047 (U.S. Dec. 5, 2005)(No. 05-259).

What's On Your Sandwich?

Seems like a clear cut case of sexual harassment: Teenage workers at a popular sandwhich shop making genitalia-shaped meatballs and donuts and repeatedly showing them to older female employee. Employer has a written sexual harassment policy but otherwise doesn't do much to stop it. Female employee quits and files a claim.

Slam dunk, right? Not so fast. In a recent Iowa Court of Appeals decision, the court held that, on facts like these above, there was no claim. Why not? First, the evidence showed she never complained about harassment, only about the teenagers slacking and not working (and really, who among us hasn't complained about slacking teenagers?), until the very last incident in which the employer gave the teenagers a written warning. Second, and more importantly, she made no showing that the conduct was unwelcome. In fact, the evidence showed the employee brought sexual jokes to work herself.

The moral of the story here is that while sexual jokes and innuendo in the workplace are bad things that can lead to disaster, they won't by themselves expose an employer to liability. Where, as here, there's no showing that the jokes and innuendo are UNWELCOME, there is no claim. The other moral, I guess, is that if you hire teenagers, give them enough work to do so they don't get bored.

Warne v. Chaco Inc., Iowa Ct. App., No. 5-767/05-0238, 11/23/05 (note: case is unpublished, and we'll post a link to the decision as soon as it becomes available)