Suits In The WorkPlace

Slave Driver Image Apparently Not Hostile Enough

     So that makes what happened at the Mobile Infirmary even more bizarre.  There, a clinical pharmacy team leader had a screensaver on her computer bearing the permanent caption "Slave Driver" in flaming letters and depicting an illustration of the team leader standing threateningly over three black males in varying positions of supplication/distress.  The team leader, who was Asian, apparently received the screensaver as a prank from one of her African-American interns some time earlier.

     Not surprisingly, when a black clinical pharmacist started working in the area, she was offended by the image and complained.  Nothing was done about the image, however, until the supervisor received a new laptop computer, about four months later.

     Soon after the black pharmacist complained about the image, she began to receive work criticism that escalated into disciplinary action and a memo that was placed into her file characterizing her as "young, arrogant, inability to handle criticisms, and believes that she has a tremendous amount of experiences even though this is not the case."  I guess "uppity" couldn't make it past the spell checker.

    Ultimately, the employee was terminated in a downsizing.  She sued for race discrimination based on her termination.  Incredibly, she failed to plead a claim of hostile work environment, either in her EEOC charge or the lawsuit.

     The court spent some time discussing this lapse, finding the failure to raise the issue in the charge and the lawsuit to be fatal.  But the court also noted that the pharmacist could not even make a prima facie case of hostile work environment because the only thing that she claimed was hostile was the screensaver.  Commenting that the image was "utterly inappropriate," the court noted that mere exposure to that image, without more, could not satisfy the requirement that the infirmary's conduct be sufficiently severe or pervasive to alter the conditions of employment.

     In other words, without additional evidence of racially motivated hostile conduct, the single PhotoShopped screensaver of an Asian supervisor beating black employees (to which the plaintiff would have been exposed almost daily), was not enough.

     I think this is a correct decision, because there was no other indication that the work environment was altered by racial epithets or conduct.  I do not recommend that supervisors run out and start pushing the edge of the envelope by placing similar images on their computers, however.  I wouldn't count on a plaintiff's lawyer missing that obvious a claim more than once.  Odom v. Mobile Infirmary, No. 06-0511-WS (S.D. Ala. Mar. 17 2008).

Workers' Compensation Absence Does Not Equal FMLA Protection

     A recent case out of the 7th Circuit clarifies the confusing interplay between workers' compensation leave and leave covered by the FMLA. 

     The employee in this case suffered the all-too-common back injury and was out of work from January 19, 2004, through August, when he was released to return to work.  The company's absenteeism policy tracked the minimum amount of leave required under the FMLA.  Specifically, the employee was allowed 480 hours of time away under the company's handbook.  The company was careful to note in its handbook that FMLA time runs concurrent with any short-term disability or workers' compensation covered absences.  The company automatically terminated anyone who was unable to work for a total of more than 12 weeks, regardless of the reason for the absence. 

     Important safety tip here -- such a policy may run afoul of the Americans with Disabilities Act, unless the company is conducting a case-by-case review of the employee's status and job requirements at the 12-week point. 

     The company scrupulously followed the FMLA notice requirements when the employee went out as a result of the injury, telling the employee how much FMLA leave he had left and that the leave would run concurrently with worker's compensation and short-term disability.  In this case, the employee had already used more than half of his 480 hours, and the company terminated him at the end of his FMLA entitlement due to excessive absenteeism. 

     The employee sued for exercising his workers' compensation rights, wrongfully requiring him to utilize FMLA leave, rather than temporary total disability time, and terminating him after he attempted to return to work with restrictions in a light-duty position. 

     Both the district court and the court of appeals rejected all of the employee's claims.  The court of appeals first noted that the plaintiff could not establish that the employers' reason for terminating him -- excessive absenteeism -- was a pretext for covering up improper motivation.  The court held that an employer may fire an employee for excessive absenteeism even if the absenteeism is caused by a compensable injury under the workers' compensation system.  The court also noted that the employer had every right, under the law, to place plaintiff on FMLA leave even if the employee did not want to use his FMLA entitlement.  The court noted that the employer in this case had provided the employee with appropriate notice of his FMLA status and the fact that it intended to run FMLA leave concurrently with either workers' compensation or some other type of paid leave of absence.

     This is a reasonably clear-cut win for a company that shows the benefits of complying with the FMLA notice requirements for concurrent running of leave of absence and FMLA time off.  Under these circumstances, the employer is covered and can actually run a manageable workers' compensation and FMLA leave of absence policy.

There Are Limits, Even in Sexual Harassment Cases

    Among the many problems that arise in sexual harassment cases are attacks on witness credibility as a result of the subject matter.  Specifically, it's not uncommon to see embarrassing questions at deposition or in court about people's sexual histories, their sexual partners (in particular, their coworkers), their own viewing of pornography, participation in off-color activities, etc.  These inquires, usually directed at the coworkers, but occasionally at the plaintiff, are arguably "relevant" in order to show that a person was not offended by some crude sexual come on or picture, or that they willingly participated in the conduct they are now claiming was problematic, or  to support the hostile work environment claim.  Obviously, eliciting this information in a public forum can be a powerful deterrent to proceeding further with the litigation, or an incentive to quickly settle the case. 

     But there are limits, and a recent Ohio state court opinion demonstrates this pretty clearly.

     Three female employees sued their car dealership employer for sexual harassment, along with civil assault and battery, retaliation and intentional infliction of emotional distress, among other things.  They alleged the usual litany of boorish and inappropriate behavior -- see my previously posted comments on the totally unoriginal conduct of sexual harassment defendants.  At trial, the defense sought to introduce evidence about one woman’s piercings and sexual promiscuity, ask about the voluntary presence in a strip club of another female plaintiff, and question the third about a videotape she made depicting her engaging in sex acts with her husband. 

     Although objected to initially, the attorneys for the women did not object at trial to questions about piercings, tattoos and sexual promiscuity.  Specifically, the defense called one plaintiff's mother who testified about her daughter's piercings and tattoos and gave an opinion about her promiscuity--some parents have far too much knowledge about their adult kids’ activities.  The dating history of the other two plaintiffs was also reviewed without objection.  The failure to object not only means the evidence comes in, but that it can't be made the subject of an appeal.  But I cannot understand how this testimony could even have passed a smell test for relevance given the facts of the case. 

      The plaintiff's lawyer apparently found her voice when one of the women was asked about whether she had ever visited a strip club. The trial court also allowed this question to go forward (the plaintiff had, in fact, visited a club).  The appellate court upheld the trial court's ruling on the grounds that the woman in question claimed as part of her hostile work allegation that strippers entered the workplace during working hours and created an "uncomfortable atmosphere."  The court allowed the question, holding that the woman's having been in a strip club on her own time and with people of her own choosing undermined her statement that she would feel uncomfortable at work in the presence of strippers.  So the company’s defense was not that strippers weren’t there, but that the victim couldn’t be offended because she’d seen exotic dancers (to use the Duke lacrosse case vernacular) before.  Yikes.

     It apparently never occurred to either of the courts that conduct welcome in an off-duty, non-work setting among the presence of family or friends might be grossly inappropriate and uncomfortable when observed in the workplace.  I think this is an astounding evidentiary slip that created all kinds of fair trial issues for this particular plaintiff.

     The appellate court finally woke up, however, in reviewing the sex tape issue.  One of the women had been filmed by her husband, without her knowledge, in their bedroom together.  Incredibly, the trial court allowed the questioning of the female witness concerning this episode, apparently on the theory that the fact that the plaintiff made a sexually-oriented tape with her husband somehow proved that she would not be offended at the sight of pornography in the workplace.  This ruling allowed the defense to inform the jury during opening statements that the plaintiff starred in a “pornographic film.”

     Using logic that would have applied equally to the stripper situation had it been thinking clearly, the appellate court noted that the defense's argument on the videotape "would allow a complete stranger to pursue sexual behavior at work that a female worker would accept from her husband or boyfriend."  The appellate court reversed the trial court's finding and ruled that the videotape had no relevance to any issue in dispute.  The court remanded the case for retrial.

     The case is Conti, et al. v. Spitzer Auto World Amherst, Inc., 2008 Ohio - 1320; No. 07 CA 009121 (Ohio App. 9th Dist. March 24, 2008).

USERRA conundrums

A new USERRA case gives a useful review of the limits of claims against employers when veterans return from military service.

In Woodard v. New York Health and Hospital Corp., No.1:04cv05297 (E.D.N.Y., March 17, 2008), the employee worked in a management position overseeing surveys of healthcare centers to evaluate their accreditation and regulatory practices. She also served in the Army Reserve as a major, taking three weeks of military leave when she was hired in 1995, and completing her annual Reserve requirements thereafter.

Woodard took an extended military leave from October 2001 until March 29, 2004. On her return, she was not returned to her former job (which was still vacant) but instead assigned to a quality assurance area that was understaffed. Nevertheless she retained her management title and the same salary grade.

Woodard sued claiming that she was discriminated against because her pay increase was reduced following an evaluation in 2001 and because her new position upon return in 2004 did not involve managerial duties, but instead required a number of   “secretarial” functions.

Initially the court ruled that Woodard made a prima facie case of USERRA discrimination because her pay raise, which was only half of what it should have been, occurred in close proximity to her return from military leave and because her supervisor referred to her military leave of absence in a memo justifying the reduced pay raise.

Important safety tip here: in memos, employee evaluations, emails, or polite conversation, do not refer to protected factors in the same sentence as adverse employment actions.

But the court then noted that merely making a prima facie case, and perhaps even showing pretext, is not enough if you don’t have damages. In this case, the employer retroactively credited Woodard with a pay increase equivalent to what she would have received if she had been working full time, without the leaves of absence. This effectively mooted her USERRA discrimination claim.

Woodard’s re‑employment claim is subject to a somewhat more confusing analysis. In fact, you might be able to make a case that the court got this one wrong. It is undisputed that Woodard was not put back in her old job, but was moved laterally to an understaffed position that had slightly different duties, although she retained her title and salary. The employer justified not putting her back in the same position by noting that the company was operating on a very tight budget that precluded new hiring and employees were being moved around throughout the hospital to ensure critical positions were filled. Other employees were assigned to perform the essential elements of Woodard’s old job, which the court said essentially caused “her old job to disappear”.

Given that the requirements for the job were still there, I’m pretty sure that an employer does not get the flexibility under USERRA to simply shift somebody out of their old job and into a new one because it was able to manage staffing the old position with the remaining employees. The language of the statute is clear—it requires a return to work in the position the employee would have had if she had not left. The court’s opinion is not clear on how the employer demonstrated that it could not have reassigned the duties of the new position to remaining employees when Woodard returned and simply put Woodard back into her old job. I think this may be an issue revisited on appeal because it seems inconsistent with the plain language of the statute.

In other words, you don’t get to reassign an employee simply because other people have proved capable of doing her job while she’s gone. If the obligations to perform those tasks remain, and the company has not reorganized that position out of existence, I think a good case could be made that the requirement to put the employee back in that position remains and the employer’s obligation is to shuffle staffing to make up for any other shortfalls rather than having the burden fall on the returning service member.

The EEOC and “No Re‑employment” Clauses

On April 3, at an ABA Labor and Employment Law Section meeting in California, an EEOC attorney stated that the Commission will oppose so-called “no rehire” or “re‑application” clauses in settlement agreements, or any other type of employment agreements. A no rehire clause is typically used to preclude an employee, who has left the company and filed an EEOC charge or a lawsuit, from setting up a retaliation claim by re-applying for work at the same company. As the EEOC surely knows, a former employee applying under these circumstances confronts the employer with a choice: either rehire the employee (who was frequently a problem employee in the first place) or deny the application and set‑up an endless loop of retaliation claims when the employee files a charge saying that the reason she wasn’t hired is because of the previous protected conduct of filing a charge of discrimination.

This is the kind of shortsighted viewpoint that makes the EEOC actually work against its statutory role as a conciliator. In fact, the Commission’s opposition to these clauses reduces the likelihood of settlement or conciliation.  Without a “no rehire” provision, an employer really can’t rid itself of claims from the aggrieved employee. It’s not uncommon to see ex-employees try to get a job with a former employer (in a career and location where they feel comfortable, know the job, and may know the personnel) after filing an EEO charge.   

The fact that the employee is willing to return to the workforce notwithstanding her earlier claim that it was a hostile environment, managed by racists, sexists, or discriminates against the elderly, casts more than a little doubt on the veracity of the original charge, but the Commission seems to ignore this.

The speaker at the ABA conference stated that the reason the Commission opposes these clauses is that frequently the employee does not realize how broad in scope the no rehire clause actually is. In other words, the Commission wants to save the employee from her own bad judgment. Saving people from themselves has never been a particularly successful philosophy for a government program and it doesn’t work well here either. Employers should know that if they are involved with the Commission, a no rehire clause may be a showstopper as far as settling the charge or case is concerned.