Even after nearly 30 years of practicing employment law, I still learn new things regularly.  Last week, a friend on LinkedIn posted about an ADA “interference” claim being filed by the EEOC.  Now, I’m very familiar with ADA discrimination and retaliation claims, but I’ve never encountered an interference clam.  So, my first thought was: “This is just another example of EEOC overreach.”

But, another friend quickly slapped some education on me.  The ADA explicitly provides that it is “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by [the ADA].” 42 U.S.C. § 12203(b).

I suspect that I haven’t seen any ADA interference claims because most employers who try to “coerce, intimidate, threaten or interfere” with ADA rights are probably getting sued for discrimination or retaliation.  Nevertheless, I decided to do a deeper-dive on the status of ADA interference claims in the Eleventh Circuit.

You can forgive your friendly, neighborhood employment lawyer for a lack of familiarity with ADA interference claims.  Even the Eleventh Circuit Court of Appeals admits that it “has not yet had occasion to explain the proper standard for evaluating an ADA anti-interference claim.” Atchison v. Bd. of Regents of Univ. Sys. of Georgia, 802 F. App’x 495, 508 (11th Cir. 2020).

Even so, the Court has found that a person must actually possess ADA rights to pursue an interference claim.  See EEOC v. STME, LLC, 938 F.3d 1305 (11^th Cir. 2019).  The primary holding of the STME case is that an employer did not violate the ADA when it fired an employee for taking a vacation in Ghana – because of a fear that the employee would contract the Ebola virus.  I actually wrote about STME here: Fear of Ebola

But, I completely glazed over the interference claim.  The EEOC tried to assert a claim that a threat of termination prior to the vacation was an “interference” under the ADA. But, the Eleventh Circuit rejected that claim.  At the time of the threatened termination, the employee was not actually disabled by Ebola and thus had no right to a reasonable accommodation under the ADA. She had not associated with, or even planned to associate with, any known person disabled by Ebola either.  So, because she did not possess any ADA rights, there was nothing to interfere with.

Atchison v. Bd. of Regents of Univ. Sys. of Georgia, 802 F. App’x 495, 508 (11th Cir. 2020), was actually a claim by a student claiming discrimination by Georgia Tech.  Among other things, the student argued that a $1,229.63 fee imposed by Georgia Tech for retrieving and copying records interfered with his ADA rights.  He also argued that inclusion of a picture of a red stapler (a reference to the movie “Office Space”) mocked him and interfered with his rights.  Without establishing any particular standard for reviewing interference claims, the Eleventh Circuit found that neither action was an interference with ADA rights.

There have been several decisions from the various District Courts in the Eleventh Circuit discussing ADA interference claims.  At least one from Alabama is notable.

In Mosely v. AMNS Calvert, LLC, No. 1:20-00517-KD-M, 2022 WL 843773 (S.D. Ala. Mar. 21, 2022), Judge Dubose adopted the following elements for analysis of an ADA interference claim:

1. The plaintiff exercised a right protected by the ADA;
2. The defendant coerced, intimidated, threatened, and/or interfered with the plaintiff’s enjoyment of his or her ADA rights; and,
3. The defendant’s actions were motivated because the plaintiff exercised a right protected by the ADA.

Mosely, 2022 WL 843773 at *8.  The plaintiff in Moseley requested a reasonable accommodation and then was assigned a heavy workload, was subjected to heightened scrutiny, and was placed on a Performance Improvement Plan.

Judge DuBose found that the ADA’s interference provision only prohibits “discriminatory conduct that is so severe or pervasive that it will have the effect of causing a protected person to abandon the exercise of his or her ADA rights.”  Id. at *9.  Judge DuBose found that the heavy workload and heightened scrutiny allegations did not meet that high standard.

Judge DuBose found that placement on a Performance Improvement Plan might meet the standard.  But, the plaintiff still failed in element three because she could not show that placement on the PIP was the result of her request for accommodation.  Instead, the unrefuted evidence showed that the plaintiff had performance issues that pre-dated her request for accommodation.  And, those performance issues, which continued after the request for accommodation, were the basis for the PIP.

Here are my takeaways:

1. ADA interference claims are rare.
2. The law on ADA interference claims is still developing in the Eleventh Circuit
3. The standard for proving an ADA interference claim appears sufficiently high that most employees will simply sue for discrimination or retaliation.
4. To avoid any ADA claim (interference, discrimination or retaliation), an employer should never consider an employee’s disability or ADA rights when making an employment decision.

Here is a quick, off-the-cuff ranking of the most important decisions in employment law for the Eleventh Circuit:

1.  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  The big grandaddy of them all.  This case establishes the burden-shifting scheme which guides the analysis of most employment cases.
2. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); and,  Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).  These cases establish the Faragher/Ellerth defense to sexual harassment claims.  In summary, if you have an effective, well-disseminated policy prohibiting sexual harassment and an employee fails to utilize that policy, they will probably be barred from suing.
3. Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. 2019).  Most employees suing for discrimination point to differential treatment of other employees — called “comparators.”  This decision “clarifies” that comparators  must be “similarly situated in all materials respects.”
4. Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1326 (11th Cir.2011). McDonnell-Douglas is the big grandaddy, but this is the first case to reference the “convincing mosaic” standard.  Used by employees who cannot identify a sufficient comparator, the convincing mosaic standard asks whether the evidence,” when viewed as a whole, “yields the reasonable inference that the employer engaged in the alleged discrimination.”
5. Drago v. Jenne, 453 F.3d 1301 (2006).  Employees suing for retaliation must prove that they were terminated because of their protected conduct.  They usually try to do that by showing close timing between their conduct and termination.  Drago establishes that a 3-month gap between protected conduct and termination is not close-enough to establish causation.
6. Beasley v. O’Reilly Auto Parts, 69 F.4th 744 (11th Cir. 2023).  This is a relatively new case and the ramifications are still shaking out.  Some claim that it requires proof of an “adverse employment action” to sue for failure to accommodate under the ADA. At a minimum, the employee just show that the failure to accommodate “negatively impacts the employee’s hiring, advancement, discharge, compensation, training, and other terms, conditions, and privileges of his employment.”
7. Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199 (11th Cir.2001).  The burden on employers who interfere with employees’ FMLA rights is different than other employment statutes.  In these claims, the burden is on the employer to demonstrates that it would have taken an action “for a reason wholly unrelated to the FMLA leave.”
8. Bostock v. Clayton County, Ga., 140 S. Ct. 1731 (2020).  Recognizing that discrimination against employees based on sexual orientation violates Title VII.  Interestingly, before Bostock, the Eleventh Circuit already prohibited discrimination based on “gender nonconformity.”  Glenn v. Brumby, 663 F.3d 1312, 1316–17 (11th Cir. 2011).
9. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999).  This was a Supreme Court decision so unfavorable to disabled employees that a Republican Congress passed the Americans with Disabilities Act Amendments Act — making it much easier for employees to sue for disability discrimination.
10. Pollard v. Drummond Co., Inc., No. 2:12-CV-03948-MHH, 2015 WL 5306084 (N.D. Ala. Sep. 10, 2015).  I just really dislike this decision.  Two doctors told an employer that an employee on methadone could not work in a coal mine.  Nevertheless, the Court found a triable issue for purposes of disability discrimination.  Here’s a link to my blog post about it:  Trust Your “Company Doctor” and Violate the ADA

 

My friend, Ron Sykstus, recently invited me to participate in his Next Lawyer Up podcast. Ron is an awesome  attorney who is a partner with the Bond & Botes law firm. Next Lawyer Up has 130 podcast episodes featuring attorneys across the Southeast. The  podcast is a “show where lawyers talk about lawyering and how they got into law.”

In addition to the practice of law, the podcast touches on news, politics, career building and philanthropy. Notable lawyers from around Alabama have been guests, including former Lt. Governor Bill Baxley, former Lt. Governor and prominent trial lawyer Jere Beasley, and U.S. Senator Doug Jones.

I’m honored to be included in Ron’s list of distinguished guests.  Here’s a link to our episode: Episode 130 – Next Lawyer Up with Ron Sykstus featuring Robert Lockwood | Bond & Botes Law Offices (bondnbotes.com)

Here’s a cautionary tale for  lawyers: Don’t tell a federal judge that a fact is “undisputed” when it is in dispute.  And, don’t double-down on calling it undisputed when the Judge holds a hearing to ask you about it.  See McClinton v. Capstone Logistics, LLC, No. 2:20-cv-543-AMM, 2023 WL 3274937 (N.D. Ala. May 4, 2023).

Richard McClinton sued Capstone Logistics claiming that he was discriminatorily fired in violation of federal law.  Capstone claimed there was no discrimination and that McLinton was fired falsifying a Corrective Action Form.  McLinton testified at deposition that he did not falsify the form.  McLinton’s former supervisor said that McLinton did falsify the form.  This is the quintessential dispute of material fact which is submitted to a jury for resolution.

Nevertheless, Capstone’s lawyers filed a summary judgment brief asking for dismissal of the case and repeatedly claiming it was undisputed that McLinton falsified the form.  McLinton responded and demonstrated that this crucial fact was in dispute. “On reply, Capstone’s counsel did not withdraw but rather persisted in their misrepresentation that it was undisputed that Mr. McLinton doctored the Corrective Action Notice.”  McLinton, 2023 WL 3274937 at *3.

United States District Court Judge Anna M. Manasco denied Capstone’s motion for summary judgment and scheduled a hearing for its lawyers to explain “why this misrepresentation does not violate their duty of candor to the court and Federal Rule of Civil Procedure 11(b)(3).”  McLinton, 2023 WL 3274937 at *3.

Most lawyers would come to the hearing hat-in-hand and beg for forgiveness.  Capstone’s lawyer took a different approach.  He claimed that the summary judgment argument was merely “unclear.”  Judge Manasco told the attorney that his argument was “nonresponsive to the Court’s concern about misrepresentation.”  McLinton, 2023 WL 3274937 at *4. Nevertheless, counsel persisted in calling his summary judgment brief “unclear.”  Id.  Moreover, he persisted with his argument “[e]ven after the court explained that Capstone’s pleading had not been merely ‘unclear,’ but had been ‘the opposite of … true.”  Id.

At the conclusion of the hearing, Judge Manasco ordered counsel to “brief the issue of appropriate sanctions.”  McLinton, 2023 WL 3274937 at *5. At this point, most lawyers would roll over and play dead.  But, Capstone’s lawyers decided to challenge the judge.  They claimed: (1) she was acting “in contravention of Rule 11”; (2) their filings “accurately stated the undisputed facts”; and, (3) sanctions weren’t appropriate because Judge Manasco wasn’t actually misled by any representation.  Id.  To make matters worse, they said that Judge Manasco had applied an “overly literal” and “hasty” reading of their summary judgment brief.  Id.

Unsurprisingly, Judge Manasco was not convinced to withhold sanctions.  Instead she found:

Based on Capstone’s post-hearing brief, the court finds that Capstone’s counsel did not inadvertently, overzealously, or even recklessly stumble into a regrettable mistake—after they deliberately misrepresented a fact, they later repeated that misrepresentation, and still later were not discouraged or deterred by the court’s inquiry, nor by the clearly stated risk of sanction.

McLinton, 2023 WL 3274937 at *5.

Ouch.

Judge Mansaco issued the sanction of admonishment with circulation.  “The admonishment is to not make material misrepresentations to a tribunal.” McLinton, 2023 WL 3274937 at *8.  She also ordered that the admonishment must be circulated to every attorney in Capstone’s law firm, which is composed of more than 500 lawyers in 36 offices across the United States.

It’s easy for me to Monday Morning Quarterback this case.  I don’t know all of the facts or the strategies that went into Capstone’s arguments. But, based on Judge Manasco’s version of events, I probably would have adopted a different strategy.

It should also be noted that Judge Manasco was also unhappy with Mr. McClinton’s lawyer.  In a separate opinion she sanctioned him with a public reprimand for willfully failing to comply with her orders regarding length, formatting and filing of briefs.  McLinton v. Capstone Logistics, LLC, No. 2:20-cv-543-AMM, 2023 WL 3274937 (N.D. Ala. May 4, 2023).

What you say on social media can get you fired. But, sometimes you can sue for it.  That’s the lesson to be learned from the Alabama Supreme Court’s recent case in Flickinger v. King, No. SC-2022-0721, 2023 WL 3029709 (Ala. Apr. 21, 2023).

Daniel Flickinger was an associate attorney for a Birmingham law firm who posted the following message about George Floyd on Facebook:

Things I think about: If I were a seven-time felon, with my most recent prison stint stemming from robbing and holding a pregnant woman at gunpoint in her home, would I choose to die in a fentanyl and methamphetamine numbed strangulation if it meant being worshipped in a nationwide funeral and my family receiving millions of dollars? Purely hypothetical.

The next day, Flickinger was called into a meeting with the partners at his law firm and forced to resign.  During that meeting, the partners showed Flickinger social media posts allegedly generated by Lawrence King – another attorney at a completely different law firm.  Flickinger claimed that King created a “counterfeit” social media profile with his law firm photograph and law firm information.  The partners told Flickinger that they communicated with King who could “control” the distribution of information favorably for the partners and their firm.  After Flickinger resigned, King issued social media posts speaking favorably about the firm.  King also issued other posts “gloating” about his ability to get people fired if he disagreed with their opinions.

Flickinger sued King and King’s law firm for: (1) defamation; (2) invasion of privacy; and (3) tortious interference with Flickinger’s employment.  The trial court granted a motion to dismiss all claims and Flickinger appealed.  The Alabama Supreme Court affirmed dismissal of Flickinger’s defamation and invasion of privacy claims but reversed dismissal of the tortious interference claim.

King tried to argue that Flickinger must show “fraud, force or coercion” that led to Flickinger’s termination.  The Court rejected that argument and noted that the “fraud, force or coercion” requirement was eliminated from Alabama case law in 2009.  The Court also noted that Flickinger was terminated almost immediately after King contacted his law firm.

To be clear, this was a reversal of a motion to dismiss.  To survive dismissal, Flickinger was only required to allege the basic requirements of a tortious interference claim – and the Supreme Court found that he met that lenient standard.  Flickinger must now go through discovery and prove that King got him fired.

At the end of the day, I imagine both Flickinger and King are regretting their conduct on social media.  Actions have consequences.  Flickinger spoke out and lost his job.  King allegedly gloated on social media and got sued.  Be careful what you say on social media, because it can (and will) be used against you.

I am excited to announce that I will be a speaker at the 2023 DRI Employment and Labor Law Seminar to be held from May 3-5, 2023 in New Orleans. The name of my session is: “Litigation Workshop: An Off-The-Record Discussion About The Record At Trial And On Appeal.”  I will be moderating a discussion with The Honorable Cory Wilson, Fifth Circuit Court of Appeals
The Honorable Donna Phillips Currault, United States Magistrate Judge, New Orleans, LA.

This is a truly unique opportunity to improve your litigation skills.  Judge Wilson and Judge Currault will provide unique insight from their experience on their strategy for creating an effective record for trial and appeal.

To register, please click the following link then the “Register Now” button.

https://www.dri.org/education-cle/seminars/2023/employment-labor

I hope to see you there!

Regards,

Robert Lockwood

Alabama employers should immediately review their employee handbooks to ensure that they are not creating an employment contract with their employees.  Most employers know that they need to have a disclaimer at the beginning of their handbooks.  But, a recent case from the Alabama Supreme Court demonstrates that some disclaimers are not as effective as others.  See Davis v. City of Montevallo, No. 1210016, 2023 WL 180252 (Ala. Jan. 13, 2023).

A quick review of Alabama employment law.  In the absence of an employment contract, all employment in Alabama is “at will” — meaning that the employment relationship can be terminated by the employer or employee at any time for no reason whatsoever.  But, an employee handbook can create an employment contract if it offers specific promises that are accepted by the employee.  Employers can avoid accidentally creating an employment contract by including a provision in their handbook that essentially says:  “This handbook is not a contract.”

In Davis, the City of Montevallo distributed an employee handbook with a disclaimer, but the handbook also contained a promise that specific procedures would be followed in the event of termination (including notice and a hearing).  Even though Mr. Davis was an “at will” employee, he argued that the City was still required to follow the termination procedures before he could be fired.  The language of the disclaimer was crucial to the Court’s decision:

I acknowledge having been given a City of Montevallo Personnel Handbook and have been asked to carefully read it. I have been informed that I may ask my supervisor any questions that I do not understand. I understand that nothing in this Handbook can be interpreted to be a contract for employment for any specified period of time or to place a limitation on my freedom or the City’s freedom to terminate the employment relationship at any time. I also understand that the City retains the freedom to change the Policies and Procedures with the approval of the Mayor and City Council.

The Supreme Court distinguished between the reason for terminating an employment relationship and the means used to terminate the relationship.  The Court found that Montevallo’s disclaimer permitted the city to terminate for no reason, but that the procedural language in the handbook also provided a promise regarding the means by which Mr. Davis would be terminated.  The Court reversed dismissal of Mr. Davis’s lawsuit.  Presumably, he will be reinstated and given notice and a termination hearing.

Fortunately, the Court also provided clear guidance on how to avoid Montevallo’s fate by noting that a different result would occur if different handbook language was used:

“This Handbook and the policies contained herein do not in any way constitute, and should not be construed as a contract of employment between the employer and the employee, or a promise of employment.”

or

“The policies in this booklet are not an expressed or implied contract of employment.”

The key lesson from Davis is that some disclaimers are better than others at preventing the creation of an employment contract.  Therefore, Alabama employers should immediately review their handbooks to make sure that their disclaimer language unequivocally says:  “This handbook is not a contract.”

Do you have questions about the federal vaccine mandates? Are you struggling with federal compliance in the face of Alabama’s new law limiting vaccine requirements?

If so, please join me next Wednesday, November 17 at 1:00 CST for a free webinar discussing the mandates and compliance issues. I’m teaming with ADP to provide guidance on, and potential solutions to, many of the issues employers are facing.

Clink on this link to register:  REGISTER FOR FREE VACCINE MANDATE WEBINAR

 

COVID-19 has wreaked havoc on the lives of almost every American.  It has also devastated many businesses which were forced to shut down by government order or simple lack of customers.  Faced with devastating losses, many businesses have attempted to get insurance coverage to reimburse them.  The general idea is:  My business closure for COVID-19 reasons is no different from closure because of a fire.  So, my insurance should pay for my COVID-19 losses in the same manner as a closure for a fire.

Insurance companies disagree with that basic analysis.  In most cases, insurance companies are denying coverage for COVID-19 businesses losses.  As a result, businesses around the country are suing trying to get courts to award them coverage.  Usually, these claims are litigated in federal court.  And, the vast majority of federal courts are holding that COVID-19 business claims are not covered by insurance.

An insurance policy is a contract.  So, courts deciding these coverage issues have to interpret the contract.  The language of almost every policy only provides coverage for: “direct physical loss or damage.”  As a result, most insurance companies differentiate between a “physical loss” to fire and a non-physical loss caused by COVID-19.  After all, the brick-and-mortar business is still standing.  Additionally, some policies have exclusions — provisions that deny coverage for specific reasons.  Many policies specifically exclude any loss or damage caused by a virus.  Because of those provisions, most federal judges in Alabama have found that COVID-19 business losses are not covered by insurance.

1.   Hillcrest Optical, Inc. v. Continental Cas. Co., No. 1:20-CV-275-JB-B, 2020 WL 6163142 (S.D. Ala. Oct. 21, 2020).  Judge Beaverstock focused on the word “physical”  and found that there must be some “tangible” alteration to the property.  Because COVID-19 does not tangibly alter property, business losses are not covered.
2. Part Two, LLC v. Owners Ins. Co., No. 7:20-cv-01047-LSC, 2021 WL 135319 (N.D. Ala. Jan. 14, 2021).  Judge Proctor found that coverage was precluded by a virus exclusion.
3. Pure Fitness, LLC v. Twin City Fire Ins. Co., No. 2:20-CV-775-RDP, 2021 WL 512242 (N.D. Ala. Feb. 11, 2021).  Judge Proctor again found coverage barred by a virus exclusion.
4. The Woolworth, LLC v. Cincinnati Ins. Co., No. 2:20-CV-01084-CLM, 2021 WL 1424356 (N.D. Ala. Apr. 15, 2021).  Judge Maze found that there was no physical damage or loss.  “A virus does not physically alter the property it rests on.  A virus does not require property to be repaired, rebuilt or replaced.  A virus can simply be wiped off the surface with disinfectant, so there is no ‘physical damage,’ no ‘physical loss,’ and no ‘period of restoration’ of property.”  Notably, Judge Maze also relied upon a 2020 decision from the Eleventh Circuit Court of Appeals, applying Florida law to hold that “dust and debris” in a restaurant cannot be a “direct physical loss” because it “merely needs to be cleaned.”  See Mama Jo’s, Inc. v. Sparta Ins. Co., 823 Fed. Appx. 868 (11th Cir. 2020).
5. Ascent Hosp. Mgmt. Co, LLC v. Employers Ins. Co. of Wausau, No. 2:20-cv-770-GMB, 2021 WL 1791490 (N.D. Ala. May 5, 2021).  Magistrate Judge Borden found that “direct physical loss must be a loss requiring repair or replacement.”  He also applied a contamination exclusion to deny coverage.
6. Dukes Clothing, LLC v. The Cincinnati Ins. Co., No. 7:20-cv-860-GMB, 2021 WL 1791488 (N.D. Ala. May 5, 2021).  Judge Borden again denied coverage, finding that “direct physical loss or damage required an actual physical change to property that COVID-19 particles cannot cause.”

Against this tide of decisions stands one federal judge in Alabama:  Judge Haikala.  Each of the foregoing six cases was dismissed immediately after filing.  In a recent opinion, however, Judge Haikala refused to follow that trend.  See Serendipitous, LLC v. The Cincinnati Ins. Co., No. 2:20-cv-00873-MHH, 2021 WL 1816960 (N.D. Ala. May 6, 2021).  Notably, the insurance policy in Judge Haikala’s case did not have a virus exclusion.  Thus, she was only confronted with the issue of whether COVID-19 business closure was the result of “accidental physical loss or accidental physical damage.”  Judge Haikala focused on “physical loss,” noting that “loss” can be defined as “the act of losing possession.”  And, the restaurants in Judge Haikala’s case alleged that they were forced to “close completely” either as a result of government orders or the need to clean when an employee tested positive.  Consequently, she refused to dismiss the restaurants’ complaint.

Almost certainly, Judge Haikala’s case will continue and the parties will conduct discovery on the exact nature of damages suffered by the restaurants.  And, after discovery the insurance company will again move to dismiss the claim at the summary judgment stage.  There is some possibility that Judge Haikala could change her analysis in the interim.  Also, the Eleventh Circuit might issue a decision directly addressing the “physical loss or damage” issue.  But, for now, Judge Haikala has provided a path that businesses might try to follow to obtain coverage for their COVID-19 losses.