Eleventh Circuit

Judge Acker Continues To Limit Wrongful Termination Claims

Robert C. Lockwood
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Wrongful Termination
Wrongful Termination Claims

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.

 

Failure to Predict Future Leads to OSHA Liability

Robert C. Lockwood
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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

Robert C. Lockwood
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military service discrimination
Military service discriminatoin: USERRA Claims Can Be Subject to Arbitration

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.