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. SeeNeal 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.
Employees may be waiving their right to reinstatement by requesting more leave after the expiration of 12 weeks of FMLA leave.
Employees may be waiving their FMLA rights by requesting additional leave at the end of their statutorily-mandated 12-week period. See Jones v. Gulf Coast Health Care of De., 854 F.3d 1261 (11th Cir. 2017). Rodney Jones was an activities director at a nursing home who underwent rotator cuff surgery. His employer had a policy requiring a fitness-for-duty certification before returning from FMLA leave. When Mr. Jones was not medically cleared at the end of his FMLA 12-week period, he requested, and received, an additional 30 days of leave. While on that extended leave, he visited Busch Gardens theme park twice, and vacationed in St. Martin. Upon returning to work Mr. Jones was terminated because his employer believed he was well-enough to work at an earlier point.
The Jones case actually discusses several issues of significance for employers and employees under the FMLA.
Waiver of Rights by Requesting Additional Leave
Mr. Jones’s employer gave him an additional 30-days of leave, but “[s]ignificantly, this additional leave was not an extension of Jones’s FMLA leave.” The Eleventh Circuit stopped just short of announcing a concrete rule on waiver. Nevertheless, the Court is clearly learning towards such a rule: “Relevant caselaw suggests that an employer does not interfere with an employee’s right to reinstatement if that employee is terminated after taking leave in a excess of the 12 weeks permitted by the FMLA.” The Court found that “Jones likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave ….” Nevertheless, the Court found other reasons to uphold the termination.
Fitness for Duty
“[A]n employee returning from FMLA leave who cannot perform the essential functions of his job due to a physical condition need not be reinstated or restored to another position.” Moreover, an employer may lawfully condition reinstatement upon receipt of a fitness-for-duty certification from a physician. But, the employer must have a uniformly-applied fitness-for-duty policy.
Mr. Jones argued that his employer did not have a uniformly applied policy, because it allowed other employees to return on light duty, but not him. The Eleventh Circuit rejected that argument and placed significant limits on the ability of employees to compare themselves to others. The Court found that comparator employees must be “similarly situated.” And, the employees that Jones compared himself to were not similarly situated because they: (1) held different jobs with different duties; and, (2) were recovering from different maladies.
Retaliation – Time Limits for Causation
While the Eleventh Circuit’s decision with regard to reinstatement significantly limits employees’ rights, another part of the Jones opinion helps employees asserting retaliation. Jones claimed that his termination was not related to his vacations, but was retaliation for seeking FMLA leave. A retaliation claim requires proof that termination was caused by a request for FMLA leave. The most frequent way to prove causation is through temporal proximity — a short period of time between assertion of FMLA rights and retaliation. In the Eleventh Circuit, a period of two or three months between assertion of rights and termination usually satisfies the temporal proximity requirement.
Before Jones, Eleventh Circuit courts were split on whether the time limits for causation begin at the beginning or at the endof the FMLA leave. Remember, FMLA leave is essentially three months of leave. In Mr. Jones’s case, he was fired four months after requesting FMLA leave, but only one month after the end of his FMLA leave.
The trial court found that Mr. Jones’s time began running from the beginning of his request for FMLA leave, and that a delay of four months for termination was too long to establish causation. The Eleventh Circuit reversed that decision and established a new rule for retaliation claims: temporal proximity “should be measured from the last day of an employee’s FMLA leave until the adverse action at issue occurs.” Because only one month passed from the last day of Jones’s FMLA leave to his termination, the Court reversed dismissal of his retaliation claim.
In summary, Jones is a good news/bad news case for employers. On the one hand, the Eleventh Circuit made it more difficult for employees to assert claims for interference with FMLA rights. On the other hand, the Court made it easier to prevail on retaliation claims.
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.
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.
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 Encyclopediahttp://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.
A federal judge recently recognized gender dysphoria as a disability.
A federal judge in Pennsylvania recently found that an employee with gender dysphoria could sue under the Americans with Disabilities Act. See Blatt v. Cabela’s Retail, Inc., 2017 WL 2178123 (E.D. Pa. May 18, 2017). Kate Lynn Blatt claimed that she was terminated by Cabela’s because of her sex and disability — gender dysphoria. Cabela’s asked United States District Court Judge Joseph F. Leeson, Jr. to dismiss the ADA claims.
The ADA’s express language says that the term “disability” does not include “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disordersnot resulting from physical impairments, or other sexual behavior disorders.” 42 U.S.C. §12211 (emphasis added). And, Ms. Blatt claimed that she was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder.” Blatt, 2017 2178123 at *2 (emphasis added).
While Ms. Blatt’s claim would appear to be barred by the ADA’s definition of a disability, Judge Leeson refused to dismiss the claim. He found that the ADA intended to only exclude those people “identifying” with a different gender. But, gender dysphoria “goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.” Blatt, 2017 2178123 at *2.
Judge Leeson’s opinion appears to be an effort to avoid a constitutional question. Ms. Blatt claimed that the ADA’s exclusion of gender identity disorders violated her Equal Protection Rights. In order to avoid that issue, Judge Leeson found that Ms. Blatt was not excluded. But, in avoiding the constitutional question, Judge Leeson may have extended the ADA beyond its intended scope. The ADA, and its definition of “disability,” was passed by Congress in 1990. At that time, the Third Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders merely used the term “gender identity disorder.” But, in 1994, the Fourth Edition of that Manual replaced the term “gender identity disorder” with the more descriptive term “gender dysphoria.” Kothmann v. Rosario, 558 Fed. Appx. 907, 908 n.2 (11th Cir. 2014). Thus, Judge Leeson’s attempt to distinguish between “gender identity disorder” and “gender dysphoria” may be an error based on differences in time and definitions.
Nevertheless, Blatt provides yet another reason for employers to proceed cautiously when disciplining transgender employees. Under Title VII’s sexual discrimination provisions, employers must be careful to avoid disciplining transgender employees for failure to conform to gender stereotypes. Discussion on Transgender Protections. Now, employers must also consider whether an employee’s gender dysphoria is a disability and entitled to protection.
An employee was ordered to pay $235,249.80 in legal fees after filing a frivolous discrimination claim.
The Eleventh Circuit Court of Appeals just gave employees a reason to think twice before filing a frivolous law suit. The Court required an employee to pay his employer $235,249.80 for filing a frivolous employment discrimination claim. See Hamilton v. Sheridan Healthcorp, Inc., No. 16-10667, 2017 WL 2665040 (11th Cir. Jun. 21, 2017)(“Hamilton II“). This was the second time that Dr. Dwain Hamilton filed an appeal with the Eleventh Circuit.
In 2015, the Court affirmed dismissal of Dr. Hamilton’s discrimination claims against his employer, Sheridan Healthcorp. See Hamilton v. Sheridan Healthcorp, Inc., 602 Fed. App’x 485 (11th Cir. 2015)(“Hamilton I“). In Hamilton I, Dr. Hamilton claimed that he was transferred from a night shift position to day shift, and later terminated, because of his race. But, the trial court and the Eleventh Circuit both found that he was unable to establish a basic, prima facie, case of discrimination. Dr. Hamilton also attempted to claim that he was terminated in retaliation for complaining about discrimination. Yet, the Eleventh Circuit found that he offered no evidence to support that claim, and actually changed his testimony in an after-the-fact attempt to create a claim.
After prevailing, Sheridan Healthcorp asked the trial court to award it $235,249.80 in attorneys’ fees spent defending Hamilton I. Employers rarely win such requests, because fees can only be awarded if an employee’s claim is “frivolous, unreasonable, or groundless.” Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). Courts are usually reluctant to call any claim “frivolous,” but that’s exactly what the trial court did in Hamilton II. The Eleventh Circuit reviewed the trial court’s decision and affirmed in Hamilton II.
Hamilton II provides a warning to employees: Think carefully before filing that employment discrimination claim. If a court finds that claims are frivolous, then the employee is potentially on the hook for the employer’s legal fees.
Employers should carefully review their EPL policies for coverage of wage claims or risk a denial coverage.
I strongly recommend that my business clients purchase Employment Practices Liability (“EPL”)Insurance. Employment-related claims are extremely costly to defend — even frivolous claims. But, it’s important to do your homework when purchasing EPL Insurance. Many EPL Insurance policies do not cover claims related to employee wage disputes. So, it’s vital that you ask your insurance agent about the full scope of coverage under your policy. A Birmingham company learned that lesson the hard way in a recent decision issued in the Northern District of Alabama. See American Chemicals & Equipment, Inc. v. Continental Casualty Co., No. 6:15-cv-00299-MHH, 2017 WL 2405102 (N.D. Ala. Jun. 2, 2017).
In American Chemicals, the employer purchased EPL Insurance. But, the insurance policy contained an explicit exclusion for claims arising under the Fair Labor Standards Act as well as any “law anywhere in the world governing wage, hour and payroll practices.” Also, the definition of a covered “loss” under the policy did “not include any compensation earned by the claimant but unpaid by the Insured ….”
One of American Chemicals’ employees sued in state court claiming that the company failed to pay him the salary and sales commission rate that he was promised when he accepted his offer of employment. American Chemicals asked its insurance company for a defense of the claim, but the insurance company refused to provide that defense, because the claim was excluded by the policy. After settling with the employee, American Chemicals sued its insurance company claiming breach of contract, bad faith failure to pay an insurance claim, negligence and wantonness.
The American Chemicals decision focused upon the insurance company’s duty to defend. Insurance companies frequently have a duty to defend a claim (i.e., pay for the lawyer), even if a claim is not covered. American Chemicals asked United States District Court Judge Madeline Haikala to enter an order finding that the insurance company breached its duty to defend — even if the wage claim was not covered. After interpreting the policy, however, Judge Haikala found that American Chemicals was not entitled to a defense — under its primary argument. Nevertheless, Judge Haikala found an issue that the parties did not argue. The employee’s underlying claim asked for punitive damages, and Judge Haikala found that a punitive damages request might require a defense from the insurance company. So, Judge Haikala ordered the parties to submit briefs to her on that issue. As a result, American Chemicals’ case is severely damaged, but still alive.
The key takeaway here is to ask your insurance agent if wage claims are covered by your EPL policy. If there is a wage exclusion, you need to seriously consider purchasing a separate wage-based policy. FLSA claims are becoming more frequent, and some employee-focused law firms are concentrating on wage and hour claims, because employers regularly make inadvertent mistakes in paying their employees. Here’s a link to a good article discussing the pros and cons of obtaining coverage for wage claims: EPLI Wage Claims
Employers can sometimes be required to compensate employees for time spent driving to their work site.
A recent decision from the Eleventh Circuit Court of Appeals demonstrates that, sometimes, employers are required to compensate employees for time spent driving to a work location. See Meeks v. Paco County Sheriff, No, 16-16932, 2017 WL 2116130 (11th Cir. May 15, 2017). In Meeks, a deputy sheriff drove his personal car to a “secure location” at the beginning of every shift. He retrieved a patrol car from the “secure location” and drove to his patrol zone. His employer refused to compensate him for the time driving from the “secure location” to his patrol zone.
The Portal-to-Portal Act discusses activities, associated with work, that are not compensable under the Fair Labor Standards Act. Employers are not required to pay employees for: (1) traveling to and from the actual place of performance of the principal activity or activities which the employee performs; or, (2) activities which are preliminary to or postliminary to the employee’s principal activities. 29 U.S.C. § 254(a). But, an employee’s principal activity or activities are compensable. Meeks, 2017 WL 2116130 at *2.
In Meeks, the Eleventh Circuit found that the time driving to the patrol zone was compensable, because it was part of the deputy’s principal activities. The term “principal activities” includes all activities that are an “integral and indispensable” part of the employee’s duties. Meeks, 2017 WL 2116130 at *2. An activity is “integral and indispensable” if it is an intrinsic element of the activity and one with which the employee cannot dispense if he is to perform the activities. Id. The Court found that driving the patrol car from the “secure location” to the patrol zone was an “intrinsic element” of the deputy’s principal activity — patrolling for crime. Because driving to the patrol zone was part of the deputy’s principal activities, that drive time was compensable.
In most cases, time spent by an employee driving to work is not compensable under the Fair Labor Standards Act — particularly time spent driving from home to work. But, Meeks demonstrates that there are always exceptions in the law. Employers should review their drive-time compensation policies to ensure that they are complying with the FLSA.
The Alabama Supreme Court Required Arbitration of a Retaliatory Discharge Claim.
The Alabama Supreme Court loves arbitration. Arbitration is a private dispute resolution process. As part of an employment contract, an employer and employee can agree that any work-related dispute will be privately-resolved through arbitration, rather than through a law suit in court. In SSC Selma Operating Co. v. Fikes, No. 1160080, 2017 WL 2209884 (May 19, 2017), the Alabama Supreme Court required arbitration of a retaliatory discharge claim under Alabama law.
The Alabama Legislature has authorized several types of retaliatory discharge claims, but the most common claim arises from an allegation that an employer terminated an employee because that employee filed a claim under the Alabama Workers’ Compensation Act. See Ala. Code § 25-5-11.1. In Fikes, the employee claimed that she returned to work following an on-the-job injury and was fired by her employer. She sued for retaliatory discharge under Section 25-5-11.1.
But, the employee previously agreed to an Employment Dispute Resolution program, which required arbitration of all “employment related disputes,” except disputes that “relate[d] to worker’s compensation.” The employee argued that her retaliation claim “related to workers’ compensation,” and should not be arbitrated, because she was fired because of her workers’ compensation claim. Nevertheless, the Supreme Court disagreed. The Court found that the intent of the agreement was to require arbitration of “those employment-related disputes the [employee] would ordinarily be entitled to have resolved by a jury trial, i.e., disputes sounding in tort ….”
The Fikes case is another in a long line of recent cases from the Alabama Supreme Court requiring arbitration. Arguably, these decisions reflect a “strong federal policy favoring enforceability of arbitration contracts ….” Koullas v. Ramsey, 683 So.2d 415, 416 (Ala. 1996). Regardless of the reasons, if an employer enters into a valid arbitration agreement with an employee, the odds are substantial that Alabama’s courts will require arbitration of almost any employment-related claim.
