In employment cases, arbitrators frequently enter decisions that are not employer-friendly.
Business owners frequently think that arbitration agreements are good for business. That belief is fostered by pro-business organizations like the U.S. Chamber of Commerce, which actually advocates for arbitration of employment disputes here: Protect Employment Arbitration Agreements
Certainly, in some circumstances, arbitration agreements are good things. They can offset difficult venues, or employee-friendly judges. But, in life, there is a cost that comes with almost every benefit. In my experience, employment law arbitrators tend to “split the baby” and enter decisions under which nobody obtains a complete “victory.” For example, the arbitrator might reverse a termination decision and impose a ten-day suspension instead. In some cases, the arbitrator doesn’t even compromise, and instead flat-out reverses an employer’s reasonable termination decision.
That’s what happened recently in Peco Foods, Inc. v. Retail Wholesale and Dep’t Store Union Mid-South Council, No. 17-13269, 2018 WL 1324860 (11th Cir. Mar. 15, 2018). In Peco Foods, a supervisor reminded employees during a safety meeting that throwing ice was prohibited during work hours. In response, Larry Richardson said: “I don’t throw ice, I throw lead.” Richardson’s employer interpreted that statement as a threat of gun violence and terminated his employment. Richardson’s union filed a grievance challenging the termination, and an arbitrator reversed the decision — finding that the statement was not a threat.
Richardson’s employer appealed the arbitration decision to federal court. But, courts are extremely reluctant to overturn arbitration decision. Nevertheless, the employer argued that threats of workplace violence are so serious that the courts should reinstate the termination as a matter of public policy. The Eleventh Circuit Court of Appeals rejected that argument, primarily because there were factual disputes over whether Richardson’s statement was actually a threat.
Employers with unionized facilities frequently can’t avoid arbitration agreements. But, other employers should think carefully and consult with counsel before embracing arbitration of employment-related disputes.
Religious accommodations can require employers to make difficult decisions.
The Eleventh Circuit Court of Appeals issued an opinion on March 9, 2018 which provides guidance to employers on their duty to accommodate the religious beliefs of employees. See Patterson v. Walgreen Co., No. 16-16923, 2018 WL 1224391 (11th Cir. Mar. 9, 2018). Darrell Patterson is a Seventh Day Adventist, and his beliefs prohibit him from working during his Sabbath — sundown on Friday to sundown on Saturday. He was hired by Walgreens as a customer care representative, and Walgreens initially accommodated his beliefs.
Patterson was promoted a number of times and became a training instructor. The training classes he taught were regularly scheduled between Sunday and Thursday, but sometimes emergency trainings were needed on Friday nights or Saturdays. In those circumstances, Walgreens allowed Patterson to swap shifts with other available trainers. But, when Patterson could not find a replacement, he was disciplined. In 2011, Walgreens scheduled Patterson for an emergency training on Saturday. Patterson asked another training instructor to cover for him, but that trainer was not available. Patterson did not ask several other employees about their availability to cover for him.
Patterson met with Walgreen’s Human Resources representative the next week. That representative suggested that he return to a prior position as a customer care representative or look for another job at Walgreens that had a large employee pool from which Patterson could find employees willing to switch shifts. Patterson refused unless he received a guarantee that he would not have to work on his Sabbath. Walgreens terminated his employment because of his refusal to work on the Sabbath and his refusal to look for another position with more likely availability.
The analysis of religious accommodation cases is similar to other discrimination cases under Title VII of the Civil Rights Act of 1964. An employee establishes a prima facie case of discrimination by showing: (1) he had a bona fide religious belief that conflicted with an employment requirement; (2) he informed his employer of that belief; and, (3) he was discharged for failing to comply with the conflicting employment requirement. If the employee establishes a prima facie case, the burden shifts to the employer to demonstrate that it either offered the employee a reasonable accommodation or could not do so without undue hardship.
The Eleventh Circuit’s Patterson decision focused on the reasonable accommodation offered by Walgreens. The court found that “[a]n employer may be able to satisfy its obligations involving an employee’s Sabbath observance by allowing the employee to swap shifts with other employees, or by encouraging the employee to obtain other employment within the company that will make it easier for the employee to swap shifts and offering to help him find another position.” Patterson, 2017 WL 1224391 at *3. Importantly, Walgreens was only required to make shift swapping available — if Patterson could find another employee to swap. Walgreens was not required to guarantee a shift swap. “Walgreens was not required to ensure that Patterson was able to swap his shift, nor was it required to order another employee to work in his place.” Id. at *4.
The Court further found that Walgreens’ offer to allow a transfer to a customer care representative position was also a reasonable accommodation, and that Patterson “had a duty to make a good faith attempt to accommodate his religious needs through the means offered by Walgreens.” Id.
The Patterson decision is useful for Alabama employers. It firmly establishes that the duty to accommodate an employee’s Sabbath observance is not unlimited. In most circumstances, offering the employee the ability to swap shifts should suffice. Nevertheless, every situation is unique and employers should proceed cautiously if they are contemplating taking an employment action based upon a Sabbath observance or other religious belief.
The EEOC cannot revive a discrimination claim that is barred by the statute of limitations.
The Eleventh Circuit Court of Appeals recently held that the United States Equal Employment Opportunity Commission (“EEOC”) cannot revive a discrimination claim that is barred by the statute of limitations. See Stamper v. Duval County School Bd., No. 15-11788, 2017 WL 3033148 (11th Cir. Jul. 18, 2017).
In 2007, Stamper filed a charge of race and disability discrimination. On February 26, 2009, the EEOC issued a dismissal and notice of rights (also known as a “right to sue letter”) concluding that it could not establish a violation of the statutes. Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act both required Stamper to file a law suit (if any) within 90 days of the right to sue letter. Yet, Stamper did not file suit.
Instead, on July 9, 2011, Stamper filed a request for reconsideration with the EEOC. On December 15, 2011, the agency sent Stamper a “Notice of Revocation,” which attempted to vacate the dismissal of her first charge and revoked the letter terminating processing of that charge. Stamper then filed a second charge of discrimination, and she received a second notice of right to sue on November 5, 2012. Stamper then filed suit within 90 days. A trial court found that her lawsuit was untimely and the Eleventh Circuit affirmed.
The Court relied upon the agency’s own regulations. In particular, 29 C.F.R. § 1601.19(b) allows the EEOC to reconsider a decision to dismiss a charge of discrimination. But, that regulation only affects the 90-day statute of limitations if the EEOC reconsiders within 90 days of its dismissal decision. In short, if the EEOC reconsiders within 90 days, the right to sue is revoked and the statute of limitations is re-set. But, if the EEOC reconsiders after 90 days, the right to sue is not revoked and the statute of limitations is not affected.
In this case, the EEOC reconsidered Stamper’s right to sue more than two years after the fact. As a result, the Eleventh Circuit found that it did not properly revive Stamper’s claims, and affirmed dismissal.
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.
Judge Abdul Kallon recently found that an employee with a hearing impairment posed a direct threat to himself or others under the ADA.
A recent decision from an Alabama federal judge provides guidance to employers who are attempting to determine if an employee’s disability is a “direct threat” under the Americans with Disabilities Act. See Lewis v. United States Steel Corp., No. 2:14-cv-01965-AKK (N.D. Ala. Dec. 20, 2016). Alonzo Lewis was an “oiler” at U.S. Steel’s Fairfield, Alabama plant. U.S. Steel used audiovisual warning systems to alert employees that cranes, forklifts and/or trailcars were in motion in the plant.
Lewis is hearing impaired and admitted that sometimes he could not hear alarms in the plant. After a supervisor noticed that Lewis did not react to an alarm, U.S. Steel required him to undergo a hearing test. When Lewis failed the test, U.S. Steel refused to allow him to enter the facility and began the process of attempting to find a reasonable accommodation. Unfortunately, U.S. Steel could not identify any jobs in the facility which did not involve exposure to the mobile equipment. As a result, U.S. Steel terminated Lewis’s employment.
Lewis sued under the Americans with Disabilities Act. While his hearing disability was uncontested, U.S. Steel claimed that he was a “direct threat” to his own health and safety or the safety of others. Lewis claimed that he was not a direct threat, because he worked in the U.S. Steel facility for eight years without incident. He relied upon a decision from United States District Court Judge Madeline Haikala to support that argument. I wrote about Judge Haikala’s opinion here: https://employingalabama.com/2016/08/29/trust-doctor-violate-ada/
United State District Court Judge Abdul Kallon provided employers with an important distinction from Judge Haikala’s analysis of the direct threat defense. In Judge Haikala’s case, there was no “individualized or objective proof” that the employee posed a direct threat to himself or others. In the Lewis case, however, Judge Kallon found that the failed hearing test was “objective, individualized evidence” that could be relied upon by U.S. Steel to make an employment decision. Because Lewis was a direct threat, Judge Kallon found that his ADA case should be dismissed.
Judge Kallon also provided an alternative basis for dismissal. He found that U.S. Steel possessed a nondiscriminatory reason for termination: “safety concerns due to his inability to hear warning signals.” Lewis failed to demonstrate that U.S. Steel’s safety concerns were not legitimate concerns, so Judge Kallon found another reason for dismissal.
Judge Kallon’s reliance on “individualized, objective evidence” provides effective guidance for employers when considering whether an employee poses a direct threat to himself or others. If an employer possesses individualized, objective evidence that the employee poses a danger, then the employer is more likely to win an ADA discrimination case.
Indefinite Leave Is Not a Reasonable Accommodation Under the ADA.
Employers are not required to give indefinite extensions of leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”). Luke .v Board of Trustees of Fla. A&M Univ., No. 15-13995, 2016 WL 7404677 (11th Cir. Dec. 22, 2016). In Luke, the plaintiff was a patrol office for the Florida A&M University police department. She injured her knee and took leave in September 2013. On June 10, 2014, after an approved nine-month leave, she requested an extension of leave based upon her doctor’s assessment that she would be unable to work patrol shifts for “at least another six months.” Florida A&M denied that request and terminated her employment.
The Eleventh Circuit Court of Appeals affirmed the dismissal of the patrol officer’s ADA law suit. Among other things, the officer claimed that Florida A&M failed to provide her with a reasonable accommodation, when it refused to extend her leave. The Eleventh Circuit rejected that argument: “While a leave of absence might be a reasonable accommodation in some cases … an accommodation is unreasonable if it does not allow someone to perform his or her job duties in the present or in the immediate future.” Luke, 2016 WL 740467 at *3 (emphasis added). The Court found that the six-month extension request did not satisfy the “present or immediate future” requirement.
The Luke decision provides an interesting contrast to the position taken by the EEOC regarding leave as a reasonable accommodation. On May 9, 2016, the EEOC published its position that employer-provided leave is a required accommodation under the ADA. That publication can be found here: EEOC ADA Leave Publication
The EEOC’s position avoids any reference to the Eleventh Circuit’s “present or immediate future” requirement. Instead, the EEOC seeks to shift the burden to employers to prove that a particular leave would an “undue burden.” Fortunately for employers, the Eleventh Circuit does not appear to be overly persuaded by the EEOC’s publication. In the same paper, the EEOC took the position that employers are required to place a disabled employee “in a vacant position for which he is qualified without requiring the employee to compete with other applicants for open positions.” The Eleventh Circuit rejected that position earlier this month in an opinion that I discussed here: Job-Competition Policy Can Be a Defense to ADA
Luke provides some guidance to employers — a six month leave request does not meet the “present or immediate future” requirement. For shorter leave requests, however, employers should proceed with caution, because the Eleventh Circuit has not provided guidance on the “immediate future” requirement.
An inability to work in summer heat can make an employee unqualified to perform the essential functions of a job under the ADA.
If an employee cannot work outside in the summer heat, she is unqualified for a job that requires outside work and cannot file a claim under the Americans with Disabilities Act. This point was confirmed by the Eleventh Circuit Court of Appeals in Perry v. City of Avon Park, No. 15-14525, 2016 WL 6819669 (11th Cir. Nov. 18, 2016). As discussed below, Perry provides at least two tips for employers to follow. First, a written job description helps establish the essential functions of a job. If the employee cannot perform the essential functions found in a job description, it is very difficult to win a claim under the ADA. Second, employers are not required to change their job descriptions as an accommodation to employees with medical conditions.
In Perry, the employee was employed as a maintenance technician/assistant. Her primary duties took place outside doing manual labor in Avon Park, Florida. Ms. Perry was recovering from breast cancer and also suffering from mental health issues. A physician placed work restrictions on Ms. Perry to avoid direct sunlight and to work no more than four hours outside in temperatures above 50 degrees and below 80 degrees.
The City actually tried to accommodate Mr. Perry and gave her a thermometer with instructions to return to City Hall if temperatures exceeded her threshold. Because Avon Park is located in South Florida, the temperature restriction was exceeded almost immediately. When the City asked Ms. Perry’s physician if there was any possibility of accommodating Ms. Perry’s restrictions, the physician stated that there was no way Ms. Perry could work unless the temperature restrictions were met.
The City terminated Ms. Perry’s employment, and she sued under the ADA. The Eleventh Circuit found that Ms. Perry was not qualified for her position because she could not perform the essential functions listed in her written job description — the majority of which required outside work. The Court also rejected two “reasonable accommodations” proposed by Ms. Perry.
First, the Court found that Avon Park was not required to change her job description to eliminate the essential function of outside work. Second, the Court found that Avon Park was not required to abide by the physician’s restrictions, because those restrictions would prevent Ms. Perry from performing the essential function of outside work on a consistent basis.
Perry demonstrates that written job descriptions are extremely important to defending ADA claims. If an employee cannot perform the essential functions of a job as listed in a job description, it will be very difficult for them to establish a claim for disability discrimination.
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. SeeSaturn 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.
An Employer’s Decision to Prohibit Dreadlocks Does Not Constitute Race Discrimination
The Eleventh Circuit Court of Appeals has ruled that an employer does not commit race discrimination by prohibiting African-American employees from wearing dreadlocks. See EEOC v. Catastrophe Management Solutions, No. 14-13482, 2016 WL 4916851.
Catastrophe Management Solutions (“CMS”) interviewed Chastity Jones for a position as a customer service representative. During the interview, Ms. Jones wore a blue business suit and wore her hair in short dreadlocks. During a meeting after the interview, CMS’s Human Resources Manager offered a group of employees (including Ms. Jones) positions as customer service representatives. After that meeting, Ms. Jones spoke to the HR Manager about scheduling issues, and the HR Manager informed Ms. Jones that CMS could not hire her “with the dreadlocks.” Allegedly, the HR Manager said: “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” When Ms. Jones refused to cut her hair, the HR Manager requested that Ms. Jones return her hiring paperwork.
CMS had a race-neutral grooming policy which read as follows: “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines…. [H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable[.]”
The United States Equal Employment Opportunity Commission sued CMS for race discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit recognized that the concept of “race” today might be different from the concept of race when Title VII was enacted in 1964. Indeed: “It may be that today ‘race’ is recognized as a ‘social construct’ … rather than an absolute biological truth.” Catastrophe Management Solutions, 206 WL 4916851 at *7. Nevertheless, the Court declined to adopt a more-contemporary concept of race: “But our possible currently reality does not tell us what the country’s collective zeitgeist was when Congress enacted Title VII half a century ago. ‘That race is essentially only a very powerful idea and not at all a biological fact is, again, an emerging contemporary understanding of the meaning of race.'” Id.
Utilizing a contemporary concept of race, the EEOC argued that a ban on dreadlocks amounted to race discrimination: “black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race.” Id. at *9. But, the Eleventh Circuit rejected that argument by relying upon cases from the 1970’s holding “that Title VII protects against discrimination based upon immutable characteristics.” Id. at *8.
The court then extended that rationale to find that “Title VII protects person in covered categories with respect to their immutable characteristics, but not their cultural practices.” Id. at *9. The court concluded: “That dreadlocks are a ‘natural outgrowth’ of the texture of black hair does not make them an immutable characteristic of race.” Id. “[D]iscrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not.” Id.
Catastrophe Management Solutions should not be interpreted as carte blanche authority for employers to terminate African-American employees on the basis of hairstyle. In fact, the Eleventh Circuit recognized that “the distinction between immutable and mutable characteristics of race can sometimes be a fine (and difficult) one ….” Nevertheless, this case provides employers with increased protection if they possess a race-neutral grooming policy which is uniformly enforced without regard to race.
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.
