Rod Satterwhite and David Greenspan are members of the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.

Tuesday, April 29, 2008 - Posts

Slave Driver Image Apparently Not Hostile Enough

    You would think that employers in Alabama would be sensitive to the whole slavery thing, having lost a war over it and serving as Ground Zero for the opening rounds of the civil rights movement in the 50s and 60s. 

     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).

posted Tuesday, April 29, 2008 11:14 AM by Lou Michels with 3 Comments

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.

posted Tuesday, April 29, 2008 10:50 AM by Lou Michels with 3 Comments