11th Circuit

11th Circuit Rejects “Target of Opportunity” Argument

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
target of opportunity retaliation Alabama Employment Law
A “target of opportunity” might work for a B-52 bomber, but it won’t fly in a retaliation case.

Over 20 years ago, a lawyer in a case that I was working on made a “target of opportunity” argument in a retaliation case.  He claimed that his client engaged in protected activity more than a year before she was terminated, but that her employer used a later, relatively small instance of misconduct as a “target of opportunity” to get rid of her.   According to him, the small instance of misconduct was the first opportunity that the employer was given to retaliate against his client after her protected conduct.  In the course of that argument, the attorney eloquently made reference to the movie “Dr. Strangelove,” and it has always been a case that I remembered.

On October 10, 2017, the Eleventh Circuit Court of Appeals issued an opinion that shoots his “target of opportunity” argument out of the sky.  See Cooler v. Layne Christensen Co., No. 16-17773, 2017 WL 4512159 (11th Cir. Oct. 10, 2017).  Joseph Cooler was an African-American who was subjected to a difficult work environment in which white co-workers would use the “N Word” and call him “boy.”  He began dating a white woman in October 2013, and his co-workers increased their hostile treatment of him.  Cooler reported the treatment to a supervisor and reported other conduct in October 2013.  The supervisors never investigated or followed-up.  On May 1, 2014, Cooler was attending an out-of-town training, but missed between 20 and 40 minutes of that training.  When confronted, Cooler denied any responsibility.  His employer terminated his employment, allegedly for wasting company time and refusing to accept responsibility.

Cooler sued for retaliation, claiming that he was actually fired for his complaints about racial harassment.  In retaliation cases, an employee is required to prove that his protected complaints caused his termination.  In most cases, causation is proved by close timing between the complaints and the termination.  Generally in the Eleventh Circuit, if a termination occurs more than three months after a complaint, causation will be difficult to prove.

In Cooler’s case, at least six months passed between his complaints and his termination, which the Court found “was not close in time to his protected activity.”  Thus, Cooler’s attorney attempted to make the “target of opportunity” argument:  “[H]e argues he was fired at Layne’s first opportunity to retaliate against him.  Cooler explains that he was not disciplined in any way before the training, so missing part of the training was the first opportunity Layne had any excuse to fire him.”  The Eleventh Circuit rejected that argument by essentially finding that the missed training was not the first opportunity for retaliation.  Instead, Cooler was continuously employed during the six-month period and his employer had “a continuous opportunity to retaliate against him.”  Therefore, the Court found that the six-month period was too long, and Cooler’s claim failed for lack of causation.

One word of caution to employers:  The Eleventh Circuit did not completely obliterate the potential for a “target of opportunity” argument in future cases.  In a footnote, the Court recognized that the “target of opportunity” argument might be successful in situations “where the retaliator just assumed a position of power over the plaintiff.”

Boss Have It Out For You? Too Bad, Says 11th Circuit

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
Boss Eleventh Circuit Alabama Employment Law Title VII discrimination
Even if the boss has it out for you, it is very difficult to win a gender discrimination law suit.

Does your boss have it out for you?  The opening sentences of a recent Eleventh Circuit opinion summarize a dilemma confronting many employers:

George Dagnesses believed his boss had it out for him.  She belittled him and accosted him, and regularly made negative remarks about men.  When his boss eventually fired him, Dagnesses sued his former employer … for sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ….

Dagnesses v. Target Media Partners, No. 16-17802, 2017 WL 4329719 (11th Cir. Sep. 29, 2017).

Mr. Dagnesses lost his law suit, even though he produced substantial evidence that his supervisor, Linda Coffman, was hostile towards him.  She repeatedly belittled and second-guessed him, and on one occasion poked him the chest.  Another female supervisor testified that Coffman’s treatment of Dagnesses made her uncomforatable, but did not believe Coffman disliked Dagnesses because he was a man.

Coffman terminated Dagnesses employment and provided evidence that her decision was based upon insubordination, inappropriate communication, failure to follow instructions and poor attitude.  Dagnesses’ discrimination claim failed because he could not identify any similarly situated female employees, who engaged in similar misconduct, and were treated better than him.

The Eleventh Circuit’s analysis included one interesting bit of dicta that employees might attempt to use in the future.  Dagnesses attempted to compare himself to a female employee who was “discharged due to dissatisfaction with the quality of her work.”  The Court distinguished that female employee by saying that “quality of work” is a “lesser degree of misconduct” than “insubordination, inappropriate communication, failure to follow instructions and poor attitude.”  If a future employer fires an employee for “quality of work,” but retains employees with “bad attitudes,” I would expect the employee to argue that they were terminated even though they engaged in a “lesser degree of misconduct” than employees who were retained.

George Dagnesses’ boss may have had it out for him.  But, Dagnesses failed to prove that the reason she had it out for him was his gender.  In short, a boss can treat employees poorly, but won’t violate Title VII unless the reason for his/her treatment is a bias against race, gender or another protected class.

 

Employee Can’t Sue for Getting the “Silent Treatment”

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
silent treatment discrimination Alabama Employment Law employee
An employee receiving the “silent treatment” is not subjected to actionable discrimination

Your Mom probably told you:  “If you can’t say something nice, say nothing at all.”  In the workplace, this is sometimes great advice.  Rather than unleashing your true feelings on a co-worker, you can elect to ignore him.  Nevertheless, you can’t make everybody happy.  So, one employee who received the “silent treatment” from co-workers attempted to claim that she was being discriminated against.  The Eleventh Circuit Court of Appeals recently rejected that claim in Jones v. Allstate Ins. Co., No. 16-15628, 2017 WL 3887790 (11th Cir. Sep. 6, 2017).

Jamilia Jones’s employment with Allstate Insurance Company was complicated.  She complained that she was sexually harassed by her supervisor, and, after an investigation, Allstate fired that supervisor on May 8, 2012.  She then took disability leave in June and July 2012.   Ms. Jones testified that, upon her return to work, co-workers would not talk to her for fear of losing their jobs.  Those who would talk with her would only do so with a witness present. She resigned her employment on September 10, 2012, and later claimed that she was forced to resign because she was treated so poorly at work.  In other words, she claimed that she was “constructively discharged.”

To succeed on a claim of constructive discharge, an employee must show that her working conditions were so intolerable that a reasonable person in her position would be compelled to resign.  But, the Eleventh Circuit found that the “silent treatment” simply did not amount to intolerable working conditions.   As a result, the Court affirmed dismissal of Ms. Jones’s claim for constructive discharge — once again proving that Mom is always right.

Is Working From Home a Reasonable Accommodation?

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
ADA reasonable accommodation work from home alabama employment law
Sometimes, working from home is not a reasonable accommodation under the ADA.

The Eleventh Circuit Court of Appeals recently found that an employer was not required to allow an employee to work from home as a reasonable accommodation for her pregnancy/disability.  Everett v. Grady Memorial Hosp. Corp., No. 16-13495, 2017 WL 3485226 (11th Cir. Aug. 15, 2017).

At the outset, let me stress that the reasonable accommodation analysis under the Americans with Disabilities Act is a case-by-case determination.  The Eleventh Circuit’s ruling in Everett depends on the specific facts of that case.  In other cases, involving other jobs, work-from-home might be a reasonable accommodation.  If one of your employees suffers from an impairment and asks to work from home, proceed very carefully.

In Everett, Ana Everett was employed as the Program Manager for Grady Memorial Hospital’s car seat program.  She was diagnosed with a high-risk pregnancy in February 2015 and granted FMLA intermittent leave at that time.  On April 28, 2015, Ms. Everett presented a doctor’s note placing her on “light duty.”  In May 2015, her doctor diagnosed her with an “incompetent cervix” and said she should work exclusively from home.  Grady refused to allow Ms. Everett to work from home.  Instead, Grady placed her on unpaid leave until her doctor allowed her to return to work on October 8, 2015.

Ms. Everett asserted several claims against Grady — including a claim for failure to accommodate her pregnancy/disability because she was not allowed to work from home.  This is where the fact-intensive nature of the accommodation analysis comes into play.  The issue was whether Ms. Everett could perform the essential functions of her job if she worked from home.  In short, the Eleventh Circuit reviewed the relevant facts and found that teaching courses, supervising employees and meeting with patients were essential functions of the job.  Ms. Everett could not perform those essential functions if she worked from home.

Ms. Everett argued that Grady could assign those job duties to another employee as a reasonable accommodation, but the Eleventh Circuit rejected that argument.  “‘[T]he ADA does not require the employee to eliminate an essential function of the plaintiff’s job’ or place it upon someone else.”  Everett, 2017 WL 3485226 at *5.

Again, the Eleventh Circuit’s decision in Everett relied upon the fact that Ms. Everett’s presence at the work site was crucial to teach courses, supervise employees and meet with patients.  In other cases, particularly in those involving computer-intensive jobs, it might be reasonable to allow an employee with an impairment to work from home.

Employer “Sick and Tired” of EEOC Charges Not Liable for Retaliation

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
"sick and tired" EEOC retaliation Title VII
Sometimes, an employer “sick and tired” of EEOC complaints can fire an employee without violating Title VII’s anti-retaliation provisions.

The Eleventh Circuit Court of Appeals recently found that an employer who was “sick and tired” of EEOC complaints was not liable for retaliatory discharge of an employee.  Matthews v. City of Mobile, No. 16-13155, 2017 WL 3500052 (11th Cir. Aug. 15, 2017).  Cassandra Matthews was employed by the City of Mobile, Alabama as a Public Safety Dispatcher II in the Mobile Police Department’s Communications Unit.  When the City received 911 calls, Matthews was responsible for identifying emergencies, dispatching law enforcement officers and notifying officers of any updated information provided by callers.

On November 21, 2012, Matthews dispatched police officers to the scene of a fight.  Immediately after dispatching officers, she took a personal phone call.  A 911 operator attempted to inform Mathews that a weapon was reported at the scene.  But, Matthews did not provide that updated information to the dispatched officers.

Thereafter, Matthews met with Mobile’s Chief of Police, Michael Williams.  Williams transferred Matthews to a Traffic Unit while the Department conducted  an investigation of her failure to update the officers.  During the meeting, Williams mentioned EEOC complaints previously filed by Matthews and said that he was “sick and tired” of her EEOC complaints.  Matthews testified that Williams had her EEOC complaints on his desk during the meeting.  Matthews had filed:  (1) an EEOC charge in October 2011; (2) a second EEOC charge in February 2012; (3) a federal discrimination law suit in May 2012; (3) a third EEOC charge in October 2012; and, (4) an internal complaint of harassment and discrimination in November 2012.

On January 24, 2013, Matthews received a hearing before a Trial Board of three members — each appointed by Chief Williams.  That  Board recommended her termination for neglect of duty.

The Eleventh Circuit found that Matthews’ termination was not retaliation for her EEOC complaints.  Instead, the Court found that Matthews failed to demonstrate that the reason for termination (taking a personal call while on an emergency dispatch) was a false reason.  The Court further found that Williams'”sick and tired” statements were essentially absolved by the involvement of the Trial Board.  Even though Williams appointed the Trial Board, Matthews offered no evidence that the Board knew of her EEOC complaints, and the Court concluded that it would be impermissibly speculative to impute any such knowledge.

Matthews represents the extremely rare case where an employer can make reference to an employee’s EEOC charges during termination, and manage to avoid liability for retaliation.  For other employers, my advice is to avoid any reference to past discrimination complaints if an employee engages in misconduct worthy of termination.

FMLA: Even a Mistaken Reason Is a Legal Reason for Termination

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
FMLA Mistake
FMLA: Even a mistaken reason for termination can be a permissible reason.

A recent case arising under the Family and Medical Leave Act (“FMLA”) reinforces the maxim that an employee can be fired for a good reason, a bad reason, or no reason at all — so long as the reason does not violate federal protections.  See Neal v. T-Mobile, USA, Inc., No 16-16304, 2017 WL 270354 (11th Cir. Jun. 22, 2017).  In Neal, Latasha Neal took FMLA leave and was scheduled to return to work with T-Mobile on December 31, 2012.  Even though she exhausted her FMLA leave, T-Mobile extended her leave period to January 10, 2013.   Then, Ms. Neal negotiated a further extension with her district manager, Carl Graden, so that she was scheduled to return to work on January 22, 2013.  When she failed to return to work on that date, T-Mobile notified Ms. Neal that she had to submit a release-to-return-to-work from her physician by January 25, 2013.  If she failed to submit the release within that time, she would be deemed to voluntarily terminate her employment.

On January 25, 2013, Carl Graden called T-Mobile’s leave of absence team, which told him that Ms. Neal failed to submit the release form.  So, Graden terminated Ms. Neal’s employment.  In reality, Ms. Neal submitted the form, but it was mis-filed.  So, Graden’s reason for termination was mistaken.  Ms. Neal sued for FMLA retaliation.

The Eleventh Circuit Court of Appeal found that Ms. Neal’s termination was not retaliatory.  In particular, the Court relied upon Graden’s testimony that he did not know that Ms. Neal had submitted the return-to-work form, even though other T-Mobile employees did know.  This is simply re-enforces a previous blog post where I mentioned that ignorance of a decision-maker can sometimes be a good thing in discrimination actions:  Ignorance Can Be A Good Excuse

In a “fair” world, Mr. Graden would change his mind upon learning of the mis-filed form, and re-hire Ms. Neal.  But, the FMLA and other federal laws are not necessarily concerned with “fairness.”  Instead, so long as an employer makes employment decisions that are not based upon protected characteristics (like FMLA leave), then even unfair terminations are legal.

 

OSHA: New Decision on Lockout/Tagout

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
LOTO Lockout Tagout OSHA
OSHA’s Lockout/Tagout standard applies to all pieces of equipment that function together as one system.

OSHA’s Lockout/Tagout standard applies to all pieces of equipment that “function together as one system” when servicing or maintenance is performed on any part of that system.  Secretary of Labor v. Action Electric Co., No. 16-15792, 2017 WL 2982977 (11th Cir. Jul. 13, 2017).  The Lockout/Tagout (“LOTO”) standard is designed to protect workers performing maintenance on machines from releases of stored energy in the machines or unexpected activation of the machines.

In Action Electric, an apprentice employee was preparing to perform maintenance on fans that were part of a cooling bed system in a steel mill.   Numerous pieces of equipment were part of that system.  The fans were used to cool steel.  Separately, certain counterweights would raise and lower the cooling bed.  The fans and other equipment were in a 325 foot by 100 foot basement below the cooling bed.

The steel mill had a comprehensive set of policies requiring lockout/tagout of all the cooling bed’s equipment prior to any maintenance.  Nevertheless, an Action leadman took his apprentice into the basement before lockout/tagout procedures were complete.  While looking at the cooling fans, a counterweight was de-energized, and it fell, striking the apprentice.

OSHA issued a citation to Action arising from the death, and Action challenged that citation.  Action was able to convince an Administrative Law Judge that the LOTO standard did not apply because the counterweight was not the same equipment being serviced by the Action employee, and the employees were not servicing the fans at the time, but merely viewing them.

During the ALJ proceedings, the Secretary of Labor (through attorneys) wrote briefs clarifying that the LOTO standard applied “to all pieces of equipment that ‘function together as one system’ when servicing or maintenance is performed on any part of that system.”  The Eleventh Circuit found that the ALJ should have deferred to that interpretation of the LOTO standard, and reversed the ALJ’s decision.

Arbitration Clause Validity: Employees Must Demand Jury Trial On a Specific Issue

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
arbitration validity jury trial
Employees challenging the validity of an arbitration agreement must ask for a jury trial on the specific issue in dispute.

An employee who contests the validity of an arbitration agreement, and wants a jury to determine validity, must demand a jury trial on the specific issue in question.  See Burch v. P.J. Cheese, Inc., No. 13-15042, 2017 WL 2885095 (11th Cir. Jul. 7, 2017).  This is an interesting procedural issue which could trap many unwary lawyers.  Typically, a lawyer filing a complaint for an employee (called the “plaintiff” in court) will make a generalized request at the end of the complaint:  “Plaintiff Demands a Trial By Struck Jury.”  In Burch, the Eleventh Circuit Court of Appeals found that a generalized request for a jury trial is insufficient to actually obtain a jury trial on issues affecting the validity of an arbitration clause.

In Burch, the employee attempted to sue his former employer for discrimination in federal court in Alabama.  After being sued, the employer provided the court with a  copy of an employment contract containing an arbitration clause, and asked the court to compel arbitration.  The employee resisted arbitration by claiming that the signature on the employment contract was not his.  As a result, there was a factual issue on whether a valid, binding arbitration agreement existed.  If the employee signed the agreement, he could be compelled to arbitrate his claims.  If he did not sign the agreement, he was entitled to continue litigating in federal court.

The employee claimed that he was entitled to have a jury determine whether he actually signed the agreement.  Nevertheless, the Eleventh Circuit found that he waived any right to a jury trial on the validity of his signature.  The Court found that the generalized request for a jury trial in his complaint was not sufficient. Instead, the Federal Rules of Civil Procedure and the Federal Arbitration Act required the employee’s lawyer to demand a jury trial on the specific issue of the signature’s validity at the same time that he generally opposed the motion to compel arbitration.  Because the employee’s lawyer failed to file a jury demand on that specific issue, the employee waived his right to a jury trial.

This issue made its way to the Eleventh Circuit, because the judge in Alabama conducted a bench trial and determined that the employee’s signature was valid.  After the judge compelled arbitration, the employee appealed.   In most cases, juries are perceived to be more sympathetic to employees than judges.  As a result, employees want juries to determine as many issues as possible.   The Burch case provides an additional procedural defense to employers seeking to avoid juries, and also represents a procedural roadblock that could catch some lawyers by surprise.

You Can’t Sue a Dog for Negligence

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
negligence arrest dog
Police dogs cannot be sued for negligence.

Police departments frequently get sued by people they arrest.  Usually, the police officer performing the arrest also gets sued.  Recently, the Eleventh Circuit Court of Appeals held that a police dog could not be sued for his conduct in the course of an arrest.  Jones v. Officer S. Fransen, 857  F.3d 843 (11th Cir. 2017).  “Draco” is a police canine who was involved in the arrest of Randall Kevin Jones.  Mr. Jones sued Draco, several police officers and Gwinnett County Georgia after Draco “savagely attacked and tore” Jones’s arm.

Ultimately, the Eleventh Circuit found that Draco could not be sued, because Georgia law on negligence only permitted a suit against a “person.”  But, Judge Rosenbaum’s introduction to the case is a thoroughly-entertaining piece of legal writing:

In history and literature, the name “Draco” has been associated with some notorious characters. Draco of ancient Greece is perhaps best known for the harsh legal code he composed, which inspired the word “draconian.” Antonios Loizides, Draco’s Law Code, Ancient History Encyclopedia http://www.ancient.eu/Dracos_Law_Code/ (last visited May 12, 2017). Draco Lucius Malfoy, of course, is Harry Potter’s perpetually maleficent rival in the Harry Potter literary series.

And to the list of infamous Dracos, add Defendant–Appellant Draco. Draco is a police canine who was involved in the apprehension of Plaintiff Randall Kevin Jones. Unfortunately, Draco inflicted some serious damage on Jones when Draco refused to release his bite. Jones sued Draco, among others, for negligence. Georgia law by its terms, however, does not provide for negligence actions directly against dogs. We therefore hold as much today and reverse the district court’s denial of Defendant–Appellants’ motion to dismiss Draco.
Jones, 857 F.3d at 847-48.  Most of the Jones opinion was devoted to serious issues of law concerning the liability of Draco’s handler.   But, as the introduction indicates, the Court seemed to be amused by the attempt to directly sue a dog.  Later in the opinion, the Court noted the practical problems of serving a dog with a complaint, securing legal representation for a dog and determining a dog’s intent.  In short, Jones is a victory for police departments, K-9 officers, and dog-lovers everywhere.

 

FLSA: Restaurant Owners Can Take Tips From Employees

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
Resaturant FLSA tips minimum wage
The FLSA does not prohibit restaurant owners from taking the tips of employees who are otherwise paid the minimum wage.

In a one-sentence opinion, the Eleventh Circuit Court of Appeals recently held that the Fair Labor Standards Act (“FLSA”) does not prohibit restaurant owners from taking the tips of their employees:

Having carefully considered the written submissions and the arguments of the parties and of the amicus curiae, we conclude there is no free standing claim for relief under Section 203(m) of the Fair Labor Standards Act, 29 U.S.C. § 203(m), where, as here, there is no allegation that the employer does not pay the minimum wage.

Aguila v. Corporate Caterers IV, Inc., No. 16-15838, 2017 W 1101081 (11th Cir. Mar. 24, 2017).

With that one sentence, the Court affirmed the decision of the trial court in Auguila v. Corporate Caterers, II, Inc., 199 F.Supp.3d 1358 (S.D. Fla. 2016).  In that case, the plaintiffs were delivery drivers who claimed that they were supposed to receive tips, but their employer retained some or all of those tips.  They did not claim that their employer failed to pay them minimum wage.

At its heart, the FLSA is designed to ensure that employees are paid:  (1) minimum wage; and, (2) applicable overtime.  Section 203(m) of the FLSA deals with the minimum wage for tipped employees.  It allows employer to pay less than the federally-mandated minimum wage by using the employees’ tips as part of wages.  In short, the employer-paid wage, plus tips, should exceed minimum wage.  This “tip credit” is frequently misused by employers, who are then sued under the FLSA for failing to pay the correct minimum wage.

But, the employees in Aguila did not claim that they were paid less than minimum wage.  Instead, they argued that Section 203(m) of the FLSA gave them an independent right to retain their tips.  The employees were asking the Court to expand the scope of the FLSA beyond minimum wage and overtime to include a new right to retain tips.  They based their arguments on 2011 regulations issued by the United State Department of Labor and a decision from the Ninth Circuit Court of Appeals (traditionally one of the most liberal federal courts).  Despite those arguments, the trial court and the Eleventh Circuit in Aguila declined to expand the FLSA.

Aguila should not be taken as carte blanche authorization for employers to seize their employees’ tips.  Aside from morale problems, employees could potentially sue in state court for fraud and conversion — both of which carry the possibility of punitive damages.  Instead, Aguila should merely be read as a decision limiting the scope of federal power over employers.