Alabama Employment Law Archives - Page 10 of 16

11th Cir: No Snatching Victories from Jaws of Arbitration Defeats

September 23, 2016Robert C. Lockwood

Labor arbitration and court victories — The Eleventh Circuit Discourages Parties From Trying to Snatch Court Victories From Arbitration Defeats

The Eleventh Circuit Court of Appeals issued an entertaining opinion reinforcing its presumption that courts should not overturn arbitration decisions in labor disputes. Wiregrass Metal Trade Council AFL-CIO v. Shaw Environmental & Infrastructure, Inc., No. 15-11662, 2016 WL 4702017 (11th Cir. Sept. 8, 2016). In Wiregrass, an arbitrator ordered reinstatement of an employee who was terminated from employment, but a federal district court reversed that decision. Chief Judge Ed Carnes provided this introduction to the case:

A dispute involving the interpretation of a collective bargaining agreement was submitted to an arbitrator, as both parties had agreed their disputes would be. As usually happens, the losing party was not happy with the loss. See Saturn Telecommunications Servs., Inc. v. Covad Communications Co., 560 F.Supp.2d 1278, 1279 (S.D. Fla. 2008) (Jordan, J.) (“Everyone supposedly loves arbitration. At least until arbitration goes badly.”). As too often happens, instead of accepting it and moving on, the loser moved the district court to set aside the arbitration award, which it did. Then the former winner, who had become a loser, appealed that decision to this Court. We reverse the district court’s decision and restore the polarity of the parties to the status they were in when they left arbitration. We do so because of the law’s insistence that arbitration losers who resort to the courts continue to lose in all but the most unusual circumstances, of which this is not one.

Wiregrass, 2016 WL 4702017 at *1.

The employee in Wiregrass was a government contractor at a federal facility, and he was terminated for possessing government property without authorization. The arbitrator ordered him reinstated to employment, because he did not know that the property in question was government-owned. The federal district court reversed the arbitrator, because the arbitration agreement did not contain language requiring knowledge that the property was government-owned.

As a result, the appeal focused primarily upon whether the arbitrator interpreted the arbitration agreeement to include a knowledge requirement, or if she modified the agreement to impose a knowledge requirement when none was intended. Interpretations by arbitrators are permissible, but modifications of the agreement are not. Judge Carnes recognized that the arbitrator’s decision could be plausibly viewed as either a modification or an interpretation:

Given what we have and what we don’t have from the arbitrator, one could fairly characterize her decision as an interpretation of the agreement or as a modification of it. One characterization is as fair as the other. So we are, like Buridan’s ass, stuck between two equally plausible choices. Did the arbitrator interpret the possession policy and discover an implied knowledge requirement, or did she impermissibly modify the policy by simply adding that requirement?

Wiregrass, 2016 WL 4702017 at * 6. Despite that dilemma, Judge Carnes found guidance in the Supreme Court’s decision in United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).

The rule of Enterprise Wheel is that, when it is “not apparent” from the arbitrator’s stated reasoning (or lack thereof) whether she permissibly interpreted a collective bargaining agreement or impermissibly modified it, and one can plausibly read the award either way, the court must resolve the ambiguity by finding that the award is an interpretation of the contract and enforcing it. The rule reflects a strong, albeit not irrebuttable, presumption that the arbitrator has interpreted the agreement instead of modifying it.

Wiregrass, 2016 WL 4702017 at *6. Judge Carnes concluded by reinforcing the presumption that arbitration awards should be upheld:

The Enterprise Wheel presumption, which we apply today, helps keep the promise of arbitration. By presuming, in the absence of evidence to the contrary, that an arbitrator’s award rested on an interpretation and not a modification of an agreement, we discourage parties from trying to snatch court victories from the jaws of arbitration defeats.

Id. at *7.

Wiregrass is an entertaining and informative review of the Eleventh Circuit’s presumption in favor of arbitration decisions. In this case, that presumption favored the employee, because the arbitrator awarded reinstatement. Nevertheless, in future decisions, the presumption could easily work in favor of the employer.

“Everybody’s Doing It” Does Not Prove a Title VII Claim

August 31, 2016August 31, 2016Robert C. Lockwood

Judge Scott Coogler recently granted summary judgment in favor of an employer in a Title VII race discrimination case where the employee used a generalized claim of “everybody’s doing it” to try to prove her case. See McGuire v. 3M Company, No. 6:14-cv-02015-LSC, 2016 WL 4073961 (N.D. Ala. Aug. 1, 2016). Arzealar McGuire claimed that she was terminated by 3M Company because of her race.

As part of a typical Title VII case, an employee like Ms. McGuire is required to show that a “comparator” (typically another white employee) committed similar misconduct and was treated more favorably. In this case, Ms. McGuire was terminated based upon her disciplinary history, which included three suspensions in 26 months.

To meet her burden of demonstrating a comparator, Ms. McGuire generically alleged that fourteen other other employees committed misconduct, but were not disciplined as severely. But, she presented no documentation to back-up those claims. Thus, Judge Coogler found that she could not meet her burden of proof:

The only evidence McGuire presents on these fourteen employees is her deposition testimony. However, McGuire either admits she does not know the disciplinary histories of thirteen of the employees or she does not provide any evidence of their disciplinary histories. Specifically, McGuire has not provided any evidence of an employee who was disciplined for sleeping on the job, making sexually inappropriate comments, falsifying overtime records, engaging in sustained attendance misbehavior, violating company badge policy, and leaving work in violation of the company’s relief policy. Because McGuire had an extensive disciplinary history and it contributed to her termination, a proper comparator should likewise have an extensive disciplinary history.

McGuire, 2016 WL 4073961 at *3.

Ms. McGuire’s tactic is one that we see frequently in employment discrimination cases. Employees claim that “everybody’s doing it” and thus claim that multiple “oomparator” employees establish their discrimination claim. Fortunately, many judges in Alabama have required more than such generalized claims in order to prove discrimination. Instead, plaintiffs like Ms. McGuire are required to identify comparators who engage in similar misconduct and similar amounts of misconduct.

Trust Your “Company Doctor” and Violate the ADA

August 29, 2016Robert C. Lockwood

Physician Disability Discrimination — Reliance Upon a Doctor’s Advice Can Result in Disability Discrimination

Relying upon advice from a physician could cause employers to unintentionally commit disability discrimination in violation of the Americans with Disabilities Act (ADA). The ADA permits employers to terminate employees with a disability if those employees represent a “direct threat” to the safety of themselves or others. Employers frequently rely upon doctors to determine if the employee represents a “direct threat.” One federal judge in Alabama has found that reliance upon a doctor’s opinion on the “direct threat” issue can be discrimination. See Pollard v. Drummond Co., Inc., No. 2:12-CV-03948-MHH, 2015 WL 5306084 (N.D. Ala. Sep. 10, 2015).

In Pollard, Mr. Pollard worked in a coal mine and injured a finger on-the-job. He was sent to an in-house physician for treatment of the finger injury and disclosed to the physician that he was taking a prescribed narcotic, methadone, for back pain. Based upon that narcotic prescription, the in-house physician found that Mr. Pollard represented a “direct threat” to himself or others working with heavy machinery in the mine. Mr. Pollard then used the terms of a collective-bargaining agreement to obtain review by an independent physician. That second physician examined Mr. Pollard and also concluded that he represented a “direct threat” to himself or others.

Despite opinions from those two physicians, Judge Madeline Hughes Haikala found issues requiring a jury trial on whether Drummond Coal Company committed disability discrimination. The “direct threat” defense must be based upon “an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Judge Haikala’s opinion hinged on two crucial legal findings. First, “[a]n employer may not rely upon the recommendation of a physician who, like [the company doctor], conducts a cursory examination and bases his opinion at least in part on a general assumption that all patients with the same disability have the same limitations.” Pollard, 2015 WL 5306084 at *7. Additionally, “an assessment based on the known possible side effects of medication, as opposed to an individualized inquiry into a patient’s present ability to perform his functions, is insufficient.” Id. Based upon those legal findings, as well as the fact that Mr. Pollard apparently performed his job for three years without any manifestation of side effects, Judge Haikala refused to dismiss the case based upon the “direct threat” defense.

The Pollard opinion is a difficult one for employers who rely upon physicians when making fitness-for-duty determinations. Practically, Pollard forces employers to interject themselves into determinations made by health care professionals. Employers cannot simply rely upon a doctor’s opinion regarding an employee’s ability to work. Instead, Pollard effectively requires employers to second-guess physicians with questions like: (1) Did you conduct an extensive examination of this patient?; (2) Did you base your opinion on general assumptions about patients with the same condition?; (3) Did you base your opinion on an individualized inquiry into this patient’s present ability to perform the functions of his job? Moreover, what happens if an employer asks the physician those kinds of questions, and the physician misrepresents the extent of his examination?

Unquestionably, Pollard requires employers to proceed cautiously when making employment decisions based upon a physician’s opinion.

“Cleaning House” OK Under Title VII

August 22, 2016Robert C. Lockwood

Employer "Cleaning House" - Equal Employment Opportunity Claims — Cleaning House Does Not Violate Equal Employment Opportunity Provisions of Title VII

A managerial decision to “clean house” in order to eliminate workplace disruptions is a legitimate, nondiscriminatory reason for terminating an employee under Title VII. Holmes v. Jefferson County Pub. Sch. Dist., No. 15-15198, 2016 WL 4056029 (11th Cir. 2016). Holmes arose from the Information Technology department of the Jefferson County School District. That department hired a black female, April Holmes, in 2009 and a black male, Kenneth Mitchell in 2011. A white male, Kenneth Stubbs, had worked in the department for roughly 30 years. In 2011, substantial conflicts arose between Ms. Holmes and Mr. Stubbs, leading to two meetings with the District’s Superintendent.

In 2012, a new Superintendent, Albert Cooksey, was elected. Mr. Cooksey was aware of the conflicts in the IT department and decided, in his words, to “clean house.” He terminated Ms. Holmes and Mr. Mitchell. Mr. Cooksey retained Mr. Stubbs because of his greater level of experience and because Cooksey believed Stubbs was not a part of the conflicts. Ms. Holmes sued and claimed that her termination was based upon her race in violation of Title VII of the Civil Rights Act of 1964.

The Eleventh Circuit found that Mr. Cooksey’s desire to “clean house” was a legitimate, nondiscriminatory reason for terminating Ms. Holmes. The court also found that Ms. Holmes failed to meet that reason “head on” and rebut it. Indeed, the court found “Ms. Holmes does not dispute that there was conflict within the department. Nor does she dispute that Mr. Stubbs had more experience than she did.”

The court recognized that termination of the department’s two black employees, while retaining the lone white employee, was a potential issue. Nevertheless, the court found that “the sample size is too small to conclude without more that this shows causation rather than coincidence. Further, the record demonstrates that the first person Mr. Cooksey recommended to fill one of the recently vacant IT technician positions was African-American.”

Holmes recognizes that an employer’s desire to limit workplace disruptions is a valid defense to Title VII claims. Obviously, that defense is rebuttable by the employee, so employers should not generically rely upon a desire to “clean house” as a defense in all Title VII claims. Instead, if an employer possesses adequate documentation of the workplace disruptions, it will possess a good starting point for obtaining dismissal of the Title VII claims.

Judge Acker Continues To Limit Wrongful Termination Claims

August 16, 2016August 16, 2016Robert C. Lockwood

In two previous posts, I wrote that United States District Court Judge William Acker provided employers with a weapon against employees making multiple claims of wrongful termination: Judge Acker’s Weapon , Judge Acker Softens Position. In ADA, ADEA, and Title VII retaliation cases, employees must prove that the protected characteristic was the “but for” cause of termination. In other words, the employee must prove that the characteristic was the only reason for termination. Judge Acker’s earlier rulings prohibited employees from filing complaints that claimed they were terminated because they were disabled, or old, or made claims of discrimination.

On May 26, 2016, the Eleventh Circuit Court of Appeals reversed Judge Acker’s reasoning in Savage v. Secure First Credit Union, No. 15-12704, 2016 WL 2997171 (11th Cir. May 26, 2016). The Court found that Rule 8(d) of the Federal Rules of Civil Procedure expressly permits plaintiffs to plead alternative and inconsistent claims. So, employees are allowed to file a complaint claiming that they were terminated because they were disabled, or old, or made claims of discrimination.

Undeterred, Judge Acker issued a new opinion last Friday: Jones v. Allstate Ins. Co., No. 2:14-cv-1640-WMA, 2016 WL 4259753 (N.D. Ala. Aug. 12, 2016). Judge Acker found that Savage merely prevented him from applying his “but for” analysis at the beginning of a case at the motion to dismiss stage. Nevertheless, he found that Savage did not control at the summary judgment stage — when depositions and discovery are complete. As a result, he dismissed wrongful termination claims under the ADA, FMLA retaliation and Title VII retaliation. Effectively, he found that each of those claims cancelled the others out.

Almost certainly, the employee in Jones will appeal, and it will be interesting to see how the Eleventh Circuit addresses Judge Acker’s analysis. For now, however, Judge Acker’s analysis effectively forces employees to limit the number of discrimination claims that they pursue.

Title VII or a Bull Fight?

August 15, 2016Robert C. Lockwood

Title VII or Bull Fight? — Sometimes Title VII litigation is like a bull fight.

In an entertaining opinion, Judge Virginia Emerson Hopkins used a bull-fighting analogy in the course of denying a motion to dismiss employment discrimination claims. See Harris v. Koch Foods of Ashland, LLC, No. 1:15-CV-2181-VEH, 2016 WL 3997247 (N.D. Ala. Jul. 26, 2016). Tracy Harris sued her employer for violations of Title VII and the Equal Pay Act. Judge Hopkins entered her opinion after Koch moved to dismiss the third complaint filed by Harris.

Like a matador waving her red cape, Harris’s filing of a new complaint induced Defendants … to charge in with a partial motion to dismiss in the hope that they could gore a count or two. But la matadora is too swift, or at least the bulls charged too soon. The motion will be DENIED.

Judge Hopkins’s opinion proceeds to take swipes at both parties — criticizing a “bizarre argument” by the defendants, while calling certain assertions by the plaintiff “ludicrous” and “laconic.” At the end of the day, however, Judge Hopkins found sufficient detail and legal merit in Ms. Harris’s third complaint to survive the motion to dismiss.

Employees Have 6 Months To Enforce Arbitration Awards

August 10, 2016Robert C. Lockwood

Gavel and dollar sign from arbitration dispute — Arbitration of Employment Law Disputes

Employees have only six (6) months to ask a Judge to enforce an arbitration award that is entered under a collective bargaining agreement. See Harris v. Oak Grove Resources, LLC, No. 2:16-cv-00015-JEO, 2016 WL 3997254 (N.D. Ala. Jul. 26, 2015). Anthony Harris relied upon a collective bargaining agreement to contest his termination from employment. On June 21, 2013, an arbitrator ordered Mr. Harris reinstated to employment with back pay. The arbitrator ordered the parties to negotiate the amount of back pay owed to Mr. Harris, and agreed to keep his file open until February 15, 2014 to resolve any disputes.

Mr. Harris claimed that Oak Grove refused to negotiate, and instead unilaterally issued him a check on February 28, 2014 in an amount below what Mr. Harris claimed was owed. Mr. Harris then waited until December 3, 2015 to file a claim in the Circuit Court of Jefferson County, Alabama seeking “enforcement” of the arbitration award.

Oak Grove removed the case to federal court and argued that Mr. Harris’s state law claims should be dismissed because they were preempted by Section 301(a) of the Labor Management Relations Act. Magistrate Judge John Ott agreed, finding: “an employee’s claim for enforcement of an arbitration award rendered under a collective bargaining agreement [is] preempted by section 301(a) of the LMRA.” After reaching that conclusion, Judge Ott further relied upon other authorities to hold that an employee possesses only six months from the time a section 301 claim accrues to assert a claim.

In this case, Mr. Harris’s claim would have accrued at least by February 28, 2014 — when Oak Grove sent the check. But, Mr. Harris waited a year and ten months from that date to seek enforcement of the award. As a result, Judge Ott found that Mr. Harris’s claim was barred by the six-month statute of limitations.

Harris and the authorities relied upon by Judge Ott provide employers and employees with a definite, fixed timeline to resolve any disputes related to an arbitration. Employees who fail to assert their rights within that six-month timeline do so at their own peril.

Failure to Predict Future Leads to OSHA Liability

August 8, 2016August 9, 2016Robert C. Lockwood

OSHA Liability for Alabama Employers Requires a Crystal Ball — Use your crystal ball to predict OSHA liability

The Eleventh Circuit has affirmed an OSHA fine against an employer, who failed to predict that its employee would be run-over by a dump truck. Pepper Contracting Svcs. v. OSHA, No. 14-0714, 2016 WL 3971718 (11th Cir. Jul. 25, 2016).

In Pepper, a construction company was re-paving a roadway. Part of the re-paving involved “milling” the road — a process by which old asphalt is removed from the road and deposited in a dump truck. If you’ve ever been stuck in a construction zone, you know this is a slow process — proceeding 10 feet per minute, or under 3 miles per hour. A foreman directed an employee, Alex Diaz, to clear a roadside obstruction approximately 90 feet in front of the milling activities. That duty required Diaz to stand in the road while working with a shovel. The foreman did not inform the milling crew that Diaz was working ahead of the project.

Two dump trucks were located in the area where the milling was occurring. One of the dump truck operators honked his horn at the other driver. The second driver was startled, accelerated his truck away from the milling operations, and struck Diaz who was 83 to 88 feet away.

This seems like a tragic, unpredictable accident. Nevertheless, OSHA fined Pepper Contracting for failing to furnish its employees with a place of employment free of recognized hazards that are likely to cause injury or death. The Eleventh Circuit affirmed that decision. The Court relied upon three critical facts: (1) the foreman left Diaz standing in the path of the milling convoy; (2) the foreman permitted the milling convoy to continue work even though Diaz was in the path; and, (3) the foreman failed to warn the dump truck drivers that Diaz was in their path.

Pepper demonstrates the difficulties faced by employers in industries using heavy equipment. A random, unpredictable series of events can lead to tragic consequences, and potential liability.

USERRA Claims Are Subject to Arbitration

August 4, 2016September 1, 2016Robert C. Lockwood

Employees asserting claims of military service discrimination can be forced to arbitrate those claims if they sign a valid arbitration agreement. See Bodine v. Cook’s Pest Control, Inc., No. 15-13233, 2016 WL 4056031 (11th Cir. Jul. 29, 2016). In Bodine, Mr. Bodine claimed that his supervisor made disparaging remarks, took work away from him, and ultimately terminated him because of his service in the United States Army Reserves. As a result, he sued Cook’s Pest Control under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).

However, Mr. Bodine also signed an employment contract requiring arbitration of all employment disputes. He claimed that the arbitration clause was void, because it contained terms that violated USERRA: (1) a provision allowing the arbitrator to impose attorneys’ fees and costs on Mr. Bodine; and, (2) a six-month statute of limitations. USERRA explicitly provides that there is not statute of limitations for USERRA claims and and that court costs and fees cannot be assessed against a USERRA plaintiff like Mr. Bodine.

The Eleventh Circuit recognized that USERRA also has a “non-waiver” provision which prevents employees like Mr. Bodine from waiving their USERRA rights. Based upon that provision, Mr. Bodine argued that the entire arbitration provision was void, because it would force him to waive some of his USERRA rights.

The Eleventh Circuit disagreed. It found that the “non-waiver” provision would void only the two offending provisions of the arbitration clause — not the entire clause. Thus, the Eleventh Circuit affirmed an order sending Mr. Bodine’s USERRA claims to arbitration.

Holding Last Paycheck Does Not Make Exempt Employees Overtime-Eligible

July 27, 2016Robert C. Lockwood

Check

Frequently, employers will refuse to issue a final paycheck to a terminated employee. Usually, this occurs because the employee has caused damage of some kind (property or financial) to the employer. The Eleventh Circuit Court of Appeals recently held that holding a final paycheck does not convert an overtime-exempt employee into a “non-exempt” overtime-eligible employee. Pioch v. IBEX Engineering Svcs., No. 15-10845, 2016 WL 3254138 (11th Cir. Jun. 14, 2016).

In Pioch, the employee was paid by the hour, but was exempted from overtime by the FLSA’s “computer employee exemption.” Over a four-year period, the employee collected $147,230 in per diem payments for time allegedly traveling from IBEX’s main office in Nevada to a location in Florida. In actuality, the employee had purchased a house in Florida, was not traveling from Nevada and was not eligible for the per diem payments. Thus, IBEX withheld his pay for the last three weeks prior to his resignation.

The employee sued and argued that withholding his pay converted him to a non-exempt, overtime-eligible employee during the three weeks his pay was withheld. After an extensive analysis, the Eleventh Circuit held that an employee’s exempt status “does not evaporate simply because the employer withholds a final paycheck.” Pioch, 2016 WL 3254138 at *6.

In short, holding a final paycheck does not magically confer overtime eligibility on an employee. Nevertheless, this does not mean that employers are immune from all types of liability. In fact, the Eleventh Circuit’s Pioch opinion repeatedly emphasized that Pioch might possess a breach of contract claim against his employer. Such a claim is resolved in state court instead of federal court.

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