MARCH CIRCUIT UPDATE
2nd Circuit
Christianson v. Omnicom Group, ___ F.3d ___, 2017 U.S. App. LEXIS 5278 (2d Cir. March 27, 2017).
In this Title VII case alleging that plaintiff was terminated from his position because he failed to conform to gender stereotypes, the Second Circuit vacated a Rule 12 dismissal because “Christianson alleges that he was perceived by his supervisor as effeminate and submissive and that he was harassed for these reasons. Furthermore, the harassment to which he was subjected, particularly the ‘Muscle Beach Party’ poster, is alleged to have specifically invoked these ‘stereotypically feminine’ traits.” In this case, citing a 2015 EEOC administrative ruling that expanded the scope of Title VII, plaintiff asked the Court of Appeals to overturn prior Circuit precedent, Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), holding that Title VII does not prohibit discrimination on the basis of sexual orientation. The Court of Appeals declined that invitation, ruling that it must stand behind Circuit precedent. Two judges issued a concurrence, stating that “when the appropriate occasion presents itself, it would make sense for the Court to revisit the central legal issue confronted in” Simonton.
Stevens v. Shop Rite, ___ F.3d ___, 2017 U.S. App. LEXIS 4985 (2d Cir. March 21, 2017).
Plaintiff was a pharmacist with a needle phobia. When Shop Rite decided to provide customers with flu shots on demand, plaintiff was unable to do so, citing his needle phobia. The jury returned a verdict in plaintiff’s favor on his reasonable accommodation and termination claim. The district court vacated the reasonable accommodation claims but sustained the termination claim. On appeal, the Second Circuit agrees that plaintiff was unable to make out the accommodation claim and that the district court should have vacated the termination claim as well, reasoning that the administering the immunization shots was an essential job duty for which there was no reasonable accommodation.
Submitted by:
Stephen E. Trimboli, Esq.
Trimboli & Prusinowski, L.L.C.
4th Circuit
Grutzmacher v. Howard County, 851 F.3d 332 (4th Cir. 2017).
A county fire department instituted a social media policy prohibiting employees from making remarks that undermine the views of the department or are discriminatory, derogatory, or sexually violent.
While on duty, a fire department paramedic posted on his Facebook page, remarking on a gun control debate he was watching, “My aide had an outstanding idea . . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . . .” A department volunteer responded to the post enthusiastically and suggested that the paramedic “pick a black one.” The paramedic “liked” the volunteer’s comment about “pick[ing] a black one,” and commented that it was “[t]oo cool.”
After a supervisor asked the paramedic to review his posts and remove anything inconsistent with the department’s social media policy, the paramedic deleted his post about “kill[ing] someone with a liberal” and his follow-up post responding to the volunteer’s racially charged comment. The paramedic then made several posts criticizing the department’s social media policy and the “liberal socialist agenda.”
The fire department terminated the paramedic’s employment for endorsing the volunteer’s racist comments and otherwise violating the social media policy, and for insubordination. The paramedic sued the fire department for retaliatory firing in violation of his First Amendment rights. The district court granted summary judgment for the fire department and the paramedic appealed.
To state a claim under the First Amendment for retaliatory discharge, a plaintiff must show: (1) that she was a public employee speaking about a matter of public concern; (2) that her interest in speaking upon that matter outweighed the government’s interest in providing public services; and (3) that her speech was a substantial factor in the employer’s termination decision.
The Fourth Circuit concluded that some of the paramedic’s posts about gun control laws and the bounds of the fire department’s social media policy touched on matters of public concern. However, the Fourth Circuit ruled that the fire department’s interest in efficiency and preventing disruption outweighed the paramedic’s interest in making the remarks. The Fourth Circuit reasoned that the paramedic’s online commentary interfered with the department’s operations and discipline by causing internal discord and dissension within the department, prompting subordinate employees saying they did not want to work for the paramedic anymore. The paramedic’s comments, and his public flouting of the social media policy, were inconsistent with the expectations for his managerial position. By advocating for violence in his posts, the paramedic also frustrated the department’s public safety mission and threatened community trust in the fire department. Further, the department was not required to tolerate the paramedic’s disrespectful and insubordinate reaction to being asked to remove posts that did not comply with the department’s social media policy. Accordingly, the Fourth Circuit affirmed the district court’s judgment in favor of the fire department on the paramedic’s First Amendment retaliation claim.
Submitted by:
Paul Sun and Emily Erixson
5th Circuit
Heath v. Board of Supervisors for Southern University and Agricultural and Mechanical College, 850 F.3d 731 (5th Cir. 2017).
Panagiota Heath, a female math professor and practicing member of Greek Orthodox Church, filed suit against her employer claiming discrimination based on sex, national origin, and religion. She also asserted a section 1983 claim against her supervisor individually. Heath claimed that, after Mostafa Elaasar became her supervisor in 2003, he began a campaign of harassment that continued for over a decade. The alleged acts included interfering with Heath’s classes, rewriting exams, coercing a student to complain about her, denying a 2008 sabbatical request, demeaning her, and refusing to allow her to speak in department meetings, participate on committees, teach online courses or the tutoring lab, write grants or teach advanced classes.
In refusing to treat the hostile work environment claim as continuing violations, the lower court relied on the Fifth Circuit’s pre-Morgan Celestine I factors: (1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; (2) whether the alleged acts are recurring or more in the nature of an isolated work assignment or incident; and (3) whether the act has the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights. On that basis, the court looked only at alleged acts of harassment within 300 days of filing suit rather than the entire period to grant summary judgment. For the same reasons, the court dismissed the section 1983 claim. The court also dismissed the claims for discrimination based on national origin and religion for failure to exhaust administrative remedies.
Acknowledging that it had not yet expressly recognized that Morgan overruled the “on notice” factor of Celestine I, the Fifth Circuit confirmed that Morgan overruled prior cases to the extent they held that the continuing violation doctrine does not apply when an employee was or should have been aware earlier of a duty to assert her rights. The focus must be on when harassment occurred, as opposed to when a plaintiff knew of an ongoing violation, because Title VII does not separate individual acts that are part of the hostile environment claim from the whole for the purposes of timely filing and liability. Because the continuing violation doctrine applies the claims under section 1983 in the same manner as Title VII hostile work environment claims, summary judgment on Plaintiff’s section 1983 claims was likewise improper. Reversal of summary judgment on the section 1983 claim also revived the claims based on religion and national origin because section 1983 has no administrative exhaustion requirement.
Caldwell v. KHOU-TV, 850 F.3d 237 (5th Cir. 2017).
Gerald Caldwell sued KHOU–TV and Gannett Company, Inc. alleging that he was terminated in violation of the ADA and FMLA. Caldwell, who was disabled as a result of childhood bone cancer and used crutches to walk, began working as a video editor at KHOU–TV (“KHOU”) in 1995. In March or April 2014, Caldwell told his supervisor and human resources manager that he would need to take leave for two upcoming surgeries. At the time, both Caldwell’s supervisor and the human resources manager agreed but Caldwell was fired before the second surgery.
In 2014, KHOU’s parent company mandated a reduction-in-force (“RIF”) that required elimination of two editor positions. News Director Philip Bruce decided who would be fired with input from two supervisors, including Caldwell’s supervisor. Bruce decided to fire Caldwell and another editor, Parrish Murphy. Before the decision, Murphy had been individually informed of his inadequate performance and given the opportunity to improve; Caldwell was not given equivalent forewarning or provided with an opportunity to improve his performance.
Neither party contested whether Plaintiff established a prima facie case or whether Defendant articulated a legitimate business reason for its decision. Rather, Plaintiff argued that summary judgment should have been denied because there was evidence that the Defendants: (1) gave false explanations for his firing; (2) changed their explanations for firing him; (3) limited and segregated him in a way that adversely impacted his performance; and (4) did not give him the same opportunities as other employees.
On appeal, the Fifth Circuit found that Plaintiff’s evidence created a genuine issue of material fact as to whether Defendants’ explanations for firing were pretextual. The court noted that this case was not the sort of “rare instance” where the plaintiff has only presented a weak issue of fact as to whether the employer’s reason was untrue, nor was there “abundant and uncontroverted independent evidence” that no discrimination occurred. Accordingly, the court reversed the district court’s summary judgment on the ADA claim. Because the pretext arguments applied equally to the FMLA, the court also reversed the summary judgment on the FMLA claim.
Alkhawaldeh v. Dow Chemical Company, 851 F.3d 422 (5th Cir. 2017).
Dow Chemical Company (“Dow”) hired Ammar Alkhawaldeh in January 2008 to serve as a Functional Scientist/Functional Leader (“FS/FL”) in its Epoxy Research and Development Group. Dr. Bruce Hook served as Plaintiff’s direct supervisor and was responsible for annual his annual evaluations. In October 2009, Hook gave Plaintiff the lowest possible rating of 1 on Dow’s 1–5 scale. Hook also placed Plaintiff on a Performance Improvement Plan (“PIP”). Plaintiff objected to the low evaluation and the PIP.
Dow later terminated Plaintiff. He then filed suit alleging discrimination and retaliation under Title VII. The Fifth Circuit affirmed summary judgment dismissing the discrimination claim based on well-established precedent holding that a Title VII claimant must present evidence that he was treated less favorably than others outside of his protected class to establish disparate treatment, and Plaintiff had no such evidence.
With regard to the retaliation claim, Plaintiff argued that inconsistencies in Dow’s stated reasons for discharge sufficed to establish pretext. Dow’s EEOC response indicated that it fired Plaintiff because of “his poor performance in 2009 and his failure to complete a Performance Improvement Plan” in 2010. Plaintiff argued that this stated reason was inconsistent with sworn testimony of numerous Dow employees who testified that Plaintiff did complete the PIP in 2010. On the basis of this alleged inconsistency, Plaintiff argued that he raised a genuine dispute of material fact as to the issue of pretext sufficient to defeat summary judgment.
The Fifth Circuit rejected Plaintiff’s argument that he had sufficient evidence to create a material issue of pretext. Although a court may infer pretext where an employer has provided inconsistent or conflicting explanations for its conduct, the Fifth Circuit recognized that the trial court should consider numerous factors, including the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case. The ultimate question is not one of pretext, but whether a reasonable fact-finder could conclude that the employer would not have fired the employee “but for” the employee’s decision to engage in an activity protected by Title VII. Because no reasonable fact-finder could conclude that Plaintiff would not have been fired but for his protected activity in November 2009, particularly given that he received the lowest annual evaluation in October 2009 by the same person who had just a few months earlier helped him successfully appeal the Immigration and Naturalization Service’s (“INS”) denial of his O–1 visa, the Fifth Circuit found that summary judgment was proper.
Ruiz v. Brennan, 851 F.3d 464 (5th Cir. 2017).
Blanca Ruiz began working as a clerk for the Postal Service in 1990. She was born with a hearing impairment, and developed work-related carpal tunnel syndrome in 1994. After the carpal-tunnel-syndrome diagnosis, Ruiz was reassigned to a modified position. In 2010, the Postal Service initiated the National Reassessment Process (NRP) to standardize its procedures for assigning work to injured-on-duty Postal Service employees. As part of the NRP, the Postal Service offered Ruiz a different position working at the front desk of a postal facility. Because of her hearing impairment, Ruiz was unable to perform some of the tasks and, after two days, the Postal Service retracted the front desk offer and notified Ruiz that the District Assessment Team had completed a search pursuant to NRP guidelines and was unable to identify any available tasks that she could perform with her medical limitations.
Ruiz filed a complaint with the EEO Division of the Postal Service alleging that the Postal Service discriminated against her on the basis disability by denying her reasonable accommodation. The Postal Service determined that her individual complaint was subsumed by a pending administrative class action alleging disability discrimination related to the NRP. Ruiz appealed, and the EEOC issued a decision affirming and included a notice of right to file a civil action within 90 days of receiving the decision.
Ruiz then filed suit. The magistrate judge initially dismissed the case for failure to exhaust administrative remedies but the Fifth Circuit reversed and remanded because the judge did not determine whether Ruiz’s claim was subsumed within the class action. On remand, the magistrate judge decided that Ruiz’s claim was properly subsumed in the class (i.e., Ruiz’s claim were subsumed within the pending administrative class because removal from the modified-duty position, front desk job offer, and lack of accommodation were all the result of the NRP) and again dismissed the case for failure to exhaust administrative remedies. On appeal of this second ruling, the Fifth Circuit affirmed. The court recognized that, when an individual plaintiff’s claims are properly subsumed within an administrative class action, the plaintiff is unable to meet the administrative exhaustion requirement with respect to her individual claims as long as the class action is pending.
Ruiz argued on appeal that the presence of “right to sue” language in the EEOC’s decision finding that her claims were subsumed within the class also meant that she had exhausted her administrative remedies with respect to her disability claims and, therefore, she was entitled to pursue litigation. The Fifth Circuit rejected that argument, finding that the inclusion of “right to sue” language informed Ruiz of her right to litigate the EEOC’s decision to subsume her claims within the class, not her right to litigate those claims on the merits.
Submitted by:
Donna Phillips Currault
6th Circuit
Linkletter v. Western & Southern Financial Group, Inc., 851 F.3d 632 (6th Cir. 2017).
Plaintiff applied for a job with the employer defendant and was offered a position, which was later rescinded by the defendant after plaintiff signed a petition in support of a woman’s shelter that was in a dispute with the defendant. Plaintiff sued under section 3617 of the Fair Housing Act, alleging that her actions in signing a petition against the defendant employer “encouraged the residents of the women’s shelter in their rights granted by § 3604, involving discrimination in the rental or sale of housing” and that the employer’s decision to rescind her offer was “interference” with this encouragement. The district court dismissed the case for failure to state a claim.
The Sixth Circuit reversed. The Court held that the Act is “broad and inclusive” and that “rescission of an employment contract can qualify as ‘interference’ within the meaning of the statute.” This is particularly the case where the employer’s conduct left plaintiff with a “distinct and palpable” injury, i.e. loss of employment. Further, the Court pointed out that HUD has interpreted the Act’s use of the word “interference” to include employment disputes. There was no dispute over the fact that the shelter was in litigation with the employer and plaintiff signed the petition to “encourage” the women in the shelter. The defendant argued that even if the plaintiff’s employment was rescinded for signing the petition, “the underlying dispute with the women’s shelter was motivated by economics rather than by sex discrimination.” But the Court rejected this argument, stating that a violation of the Fair Housing Act can be shown either by proof of discriminatory animus or by proof of disparate impact or effect. Here, “Western & Southern’s actions against the shelter as alleged in the complaint only affected one class of people—women.” Further, the Court held that the existence of “economic (or religious or moral) motivations does not protect the defendants from housing discrimination claims when their actions had a clear discriminatory effect.” Western & Southern fell within the scope of the Fair Housing Act, as “a non-houser that has allegedly denied housing rights to women . . . .”
Submitted by:
M. Misbah Shahid
7th Circuit
Hill v. Service Employees Int’l Union, 850 F.3d 861 (7th Cir. 2017).
Appellant-Plaintiffs provided home healthcare and childcare services administered by Illinois agencies. The Illinois Public Labor Relations Act (“IPLRA”) allows public employees in a bargaining unit to choose an exclusive bargaining representative by majority vote. A majority of the providers of which appellant-plaintiffs were a part voted to have SEIU represent them. Providers are not required to join SEIU and cannot be discriminated against by the union.
Appellant-Plaintiffs sued the union and Illinois officials under 42 U.S.C. § 1983 claiming the IPLRA violates the First and Fourteenth Amendments because by authorizing the SEIU to bargain on behalf of all providers, the statue forces the appellant-plaintiffs into an “agency-like” relationship with the union. Defendants successfully moved to dismiss the complaint for failure to state a claim at the district court.
The appellant-plaintiffs argued the IPLRA creates a mandatory association, requiring a compelling state interest that cannot be achieved through significantly less-restrictive means. Citing Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), the Court explained that the appellant-plaintiffs were not required to join the union. Further, the appellant-plaintiffs’ ability to speak out against the union and their ability to refuse financial support for the union undermined their assertion that their association with the union was mandatory.
The Court distinguished the situation of the appellant-plaintiffs from cases where heightened scrutiny applied, noting they were not required to act a “public bearers of an ideological message they disagree with,” and they were not required to accept undesired members or modify the “expressive message of any public conduct they may choose to engage in.”
The Court noted that appellant-plaintiffs did not argue the IPLRA failed a rational basis analysis, and therefore affirmed the dismissal of the district court.
Submitted by:
Mark Plantan
8th Circuit
Nash v. Optomec, Inc., 849 F.3d 780 (8th Cir. 2017).
Optomec, Inc. hired Thomas Nash, a 54-year-old neuroscience technology student, as an intern for the summer and fall of 2013. Nash worked alongside three other inters—all in their early twenties—to take measurements, record data, and maintain laboratory equipment. During his internship, Nash noticed a “pattern of preference” for the younger interns, one of whom received a higher salary and another who was sent on expenses-paid business trips. John Lees, Optomec’s Vice President of Engineering, noted that Nash struggled with tasks that required “physical skill or dexterity,” and commented that Nash had trouble “understanding and troubleshooting systems.” When Nash graduated with his associates degree and inquired about a full-time position with Optomec, John Wright, one of Optomec’s engineers, expressed concern that Nash “wasn’t a particularly skilled technician” and “required very specific instructions” to complete tasks. Despite these concerns, Lees offered Nash a job in January 2014.
Even as an employee, however, Nash alleged that Lees continued to treat younger workers more favorably. Specifically, Nash noted that Lees deprived him of travel and teamwork experiences that were extended to younger workers. At the same time, Lees started to worry about Nash’s work performance, noting that he was not progressing beyond basic lab skills and was especially weak with troubleshooting and critical thinking. As Optomec continued to grow, Lees felt that the company needed to look ahead for a “higher level of functionality across the board on the team.” Lees did not believe Nash contributed to that “higher level” and ultimately fired Nash on June 6, 2014. Lees explained to Nash that the company was moving in a different direction and that the decision to terminate him was “not performance related.” According to Nash’s post-termination paperwork, however, Nash did not “possess the full breadth of skills required to successfully meet the challenges required of [his] position.” Nash filed suit against Optomec for age discrimination in violation of the Minnesota Human Rights Act. The United States District Court for the District of Minnesota held that Nash failed to establish a prima facie case of age discrimination and granted Optomec’s motion for summary judgment.
On appeal, Nash advanced several arguments to establish an inference of discrimination. First, Nash noted that the younger interns took over Nash’s job after his termination. The Court, however, rejected Nash’s argument, stating that an inference of discrimination based on the replacement of an older worker for younger workers must be based on a permanent, not temporary, replacement. Where, as here, the younger workers only briefly assumed Nash’s work, the replacement was insufficient to establish an inference of discrimination. Nash also argued that there was “no basis in fact” for his termination, because his alleged shortcomings were not tied to his job description. The Court, however, found that the termination was based on the company’s “vision for the future,” and not Nash’s inability to work in his position. Nash went on to argue that the fact that Optomec changed its explanation for his termination indicated discrimination. While the Court acknowledged that an “employer’s shifting explanation can be probative of discriminatory animus,” Optomec’s change from a “not performance related” termination to a termination based on the employee not having the “full breadth of skills required to successfully meet the challenges required” was not a “substantial change” and was sufficiently “consistent with the overall reason stated by the employer.” The Court also disregarded the “trivial matters” that Nash alleged demonstrated favoritism toward younger employees. Rather, Lee’s comment concerning Nash’s “physical dexterity issues,” “inability of think on his feet,” and “stubbornness” were merely generic workplace criticisms used to explain termination.
Although the 8th Circuit recognized a “small amount of combined probative value” from Nash’s arguments, the court relied on “two well-establish presumptions” to dismiss Nash’s claims. First, the Court found the fact that Nash was hired and fired within six months—a relatively short period of time—made it unlikely that his termination was based on age, since the employer knew Nash’s age when it hired him. Second, the Court found that the fact that Lee was only five years younger than Nash countered any reasonable inference of age discrimination. The court, therefore, affirmed the District Court’s decision and granted Optomec’s motion for summary judgment.
Wilson v. Arkansas Dep’t of Human Servs., 850 F.3d 369 (8th Cir. 2017).
In 2011, the Arkansas Department of Human Services (DHS) hired LaKeysia Wilson, an African-American woman, as a field investigator. In March 2014, DHS promoted Wilson to program supervisor. Three months after her promotion and after a confrontation with another African-American woman, Patricia Robins, Wilson’s Caucasian supervisor, began to criticize her work and gave Wilson the option of demotion or termination. On July 2, 2014, Robins stripped Wilson of her supervisory responsibilities. On September 8, 2014, Wilson filed a charge of discrimination with the EEOC, alleging harassment based on race and disability in violation of Title VII of the Civil Rights Act of 1964. Three weeks later, DHS placed Wilson on a Performance Improvement Plan. Soon thereafter, DHS disciplined Wilson for work that a Caucasian female employee did not accomplish. DHS terminated Wilson on October 22, 2014, six weeks after Wilson filed her EEOC charge. The following day, Wilson filed a second EEOC charge alleging that she was disciplined and discharged in retaliation for her initial EEOC complaint. The United States District Court for the Eastern District of Arkansas dismissed Wilson’s harassment claim for being time-barred, and dismissed Wilson’s disparate treatment and retaliation claims for failure to state a claim.
On appeal, the 8th Circuit affirmed the district court’s dismissal of Wilson’s disparate treatment claim. The court found that Wilson failed to allege a disparate treatment cause of action, because Wilson’s claim of discipline “for something that a Caucasian female employee did not accomplish” did not indicate that the Caucasian employee received less discipline. Consequently, the court concluded that Wilson did not state an actionable disparate treatment claim.
With respect to the retaliation claim, the 8th Circuit, like the district court, recognized that Wilson engaged in protected conduct when she filed the initial EEOC charge and that her termination constituted an adverse employment action. The issue before the court, however, was whether Wilson established but-for causation between the filing and the firing. Because circumstantial evidence, such as the timing of two events, can satisfy the plaintiff’s initial burden, the 8th Circuit found that “the six-week period between the EEOC charge and the termination plausibly allege[d] a but-for causal connection” to meet the minimum pleading standards.
The 8th Circuit went on to consider whether there were any “obvious alternative explanations” for DHS’ alleged conduct that would render Wilson’s complaint implausible and, consequently, subject to dismissal. The court considered Wilson’s performance problems, but concluded that the facts stated in the complaint do not establish an “obvious alternative explanation” for DHS’ decision to terminate Wilson, because there was no explanation for why DHS criticized Wilson. Accordingly, the 8th Circuit reversed the district court’s decision to dismiss Wilson’s retaliation claim for failure to state a claim, but upheld the district court’s dismissal of Wilson’s disparate treatment claim.
In his dissent, Judge Loken disagreed with the court’s decision to reverse the district court’s dismissal of Wilson’s retaliation claim, arguing that the court misconstrued the pleading standards with the summary judgment standard. Judge Loken found that Wilson’s complaint did not meet the minimum pleading standard of facial plausibility, because even though temporal proximity is sufficient to prove causation, it may not be sufficient to plead a claim of retaliation to survive a motion to dismiss. Instead, Judge Loken concluded, Wilson merely pled that there was a “mere possibility”—not a plausibility—that retaliation was the but-for causation of Wilson’s termination.
Liles v. C.S. McCrossan, Inc., 851 F.3d 810 (8th Cir. 2017).
C.S. McCrossan Construction (CSM) hired Mandy Liles in 2004. In 2009, following a promotion to Assistant Project Manager, Tom Peterson, Jr. (“Junior”) started making sexual advances toward Liles. After Liles declined Junior’s advances, he started making lewd comments toward her in person and over email. Liles reported Junior’s behavior to CMS, which reprimanded Junior for his conduct. Although Junior’s behavior ceased, Junior’s father, Tom Peterson, Sr. (“Senior”), who was CSM’s Underground Division Manager, began calling Liles names and saying bad things about her to their coworkers.
In 2010, Liles accepted a placement as the Assistant Project Manager in charge of Project Controls on the Central Corridor Light Rail Transit. Justin Gabrielson, a colleague on the same project, made numerous comments about Liles’ attractiveness. Gabrielson also exposed his stomach to Liles in an attempt to sexually arouse her. Liles rejected Gabrielson’s advances. One month later, Gabrielson emailed Liles’ supervisor to tell him that Liles was performing poorly. CMS transferred Liles into a position performing field work, where CMS continued to notice Liles’ performance deficiencies. In November 2011, CMS implemented a performance improvement plan for Liles. CMS also initiated a Corrective Action Plan that required Liles to perform a number of assignments to demonstrate her competency for the work. CMS ultimately terminated Liles in January 2012. Liles sued CMS, alleging sexual harassment, discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act. The District Court for the District of Minnesota dismissed all three counts.
To establish a prima facie case of retaliation, Liles maintained the burden to show: (1) she engaged in protected conduct; (2) a reasonable employee would have found the retaliatory action materially adverse; and (3) a causal connection between the adverse action and the protected conduct. Although the 8th Circuit determined that Liles satisfied the first two elements of her prima facie case, the court found that Liles did not establish the requisite but-for causation linking the adverse action to the protected conduct. Causation, the court explained, requires “evidence of circumstances that justify an inference of retaliatory motive.” In Liles’ case, 17 months passed between Liles’ complaints about harassment and her termination. The attenuated relationship between the protected activity and the adverse actions, combined with Liles’ documented history of performance problems, led the 8th Circuit to conclude that the district court properly dismissed Liles’ retaliation claim.
Concerning Liles’ allegations of sex discrimination, the 8th Circuit assumed that Liles could establish a prima facie case under the McDonnell Douglas burden-shifting framework, leaving her only with the burden to show that CSM’s proffered nondiscriminatory reason for her termination—poor work performance—was pretext for discrimination. Although Liles argued that there were no problems with her work performance, the court found that Liles’ argument “missed the mark,” because she failed to prove that the company used her work performance as pretext for discrimination.
Lastly, regarding Liles’ hostile work environment harassment claim, the 8th Circuit agreed with the district court, finding that the sexually-charged comments from Junior, Senior, and Gabriel were “rude and unpleasant,” but not sufficiently offensive to alter the terms and conditions of Liles’ employment. The 8th Circuit, therefore, affirmed the district court’s dismissal of Liles’ harassment, discrimination, and retaliation claims.
Mercer v. United States Dep’t of Labor, Admin. Rev. Bd., 850 F.3d 382 (8th Cir. 2017).
Michael Mercier worked as an engineer, trainer, and union representative for Union Pacific Railroad (UP). In his capacity as union representative, Mercier represented employees at disciplinary hearings, where he would regularly point out UP’s safety violations. In June 2007, Mercier texted Michael Thomas, a coworker, to find out who was “doing” Deana Symons, a student conductor. Thomas showed the message to Symons, who confronted Mercier to tell him that she found the text message harassing. Symons also reported the message to the Equal Employment Opportunity hotline. UP’s EEO manager conducted an investigation, confirmed the existence of the offensive text message and suspending Mercier pending the outcome of an EEO hearing. Before the hearing, Mercier signed a waiver agreement with UP to return to work in exchange for admitting that he violated the EEO policy, agreeing to immediate termination for any future EEO violations, taking an EEO class, apologizing to Symons, and agreeing not to retaliate against Symons or Thomas or discuss the text message incident at work.
In October 2007, Mercier falsely told another coworker that Thomas showed him a pair of Symon’s underwear. Around the same time, other employees reported to the EEO manager that Mercier was complaining about being falsely accused of harassment. In response, the EEO manager investigated whether Mercier’s actions violated his waiver agreement. The manager ultimately decided that Mercier violated the waiver and recommended his termination. On November 5, 2017, UP terminated Mercier for violating the waiver agreement. Mercier proceeded to arbitrate the decision, and the arbitrator ruled in favor of Mercier, who returned to work on April 1, 2010.
On March 27, 2008, before the arbitrator made a decision, Mercier filed a complaint with the Occupational Safety and Health Administration (OSHA), alleging that UP disciplined him in retaliation for questioning UP’s safety standards in violation to the Federal Rail Safety Act’s (FRSA) anti-retaliation provision. OSHA dismissed Mercier’s complaint, finding that Mercier’s protected activity was not a contributing factor to his termination. On appeal, the Administrative Law Judge (ALJ) agreed, finding that Mercier failed to prove that his protected activities were a contributing factor in UP’s decision to terminate his employment.
To establish a prima facie case under the FRSA whistleblower provision, a plaintiff must demonstrate that (1) he engaged in protected activity; (2) the railroad employer knew or suspected that he engaged in protected activity; (3) he suffered an adverse action; and (4) the protected activity was a contributing factor in the adverse action. The FRSA also provides that a plaintiff must initiate an action within 180 days after the date of the alleged violation. Although Mercier’s termination took place within 180 days of filing his OSHA complaint, Mercier’s suspension related to the text message fell outside the statute of limitations and, therefore, was not independently actionable. Nevertheless, the ALJ found that the text message suspension was relevant to establish whether UP violated the FRSA’s anti-retaliation provision. The 8th Circuit agreed with the ALJ’s application of the “background evidence rule,” which allows an employee to use time-barred acts as background to support a timely claim.
Mercier, nevertheless, alleged that the ALJ misapplied the contributing-factor test to determine whether his safety reports contributed to his termination. While Mercier alleged that the ALJ required him to prove but-for causation to satisfy the contributing-factor test, the 8th Circuit found that Mercier fell short of showing that the safety reports were a contributing factor to his termination. Accordingly, the 8th Circuit upheld the ALJ’s decision and dismissed Mercier’s claims against UP.
Submitted By:
Frances E. Baillon and Seth H. Garfinkel
D.C. Circuit
Stewart v. National Labor Relations Board, 851 F.3d 21 (D.C. Cir. 2017).
In Stewart v. National Labor Relations Board, the majority of a D.C. Circuit panel avoided ruling upon the viability of NLRB precedent that significantly limits the ability of employees to discontinue the automatic deduction of union dues from their paychecks upon the expiration of a collective bargaining agreement. One member of the court, writing in dissent, accused the majority of adopting a warped understanding of the NLRB’s decision to avoid answering this critical question, and indicated his own disapproval of the NLRB precedent at issue.
Under the Labor Management Relations Act, it is a crime, subject to certain exceptions, for an employer to pay money to a union. One exception is the transfer of union dues on an employee’s behalf. The LMRA provides, however, that an employee’s authorization of such transfers may not be irrevocable for longer than 1 year or beyond the termination date of the applicable collective bargaining agreement. In the NLRB’s decision of Frito-Lay, Inc., 243 NLRB 137 (1979), the NLRB ruled that these revocability requirements were satisfied by an authorization form that permitted the employee to revoke the deduction authorization during a 10 day window commencing 20 days prior to the yearly anniversary of the authorization and a second 10 day window commencing 20 days prior to the expiration of the collective bargaining agreement.
In Stewart, the applicable authorization form stated that it was irrevocable “for a period of one (1) year from the date of execution or until the termination date of the agreement between the Employer and Local 99, whichever occurs sooner, and from year to year thereafter, unless not less than thirty (30) days and not more than forty-five (45) days prior to the end of any subsequent yearly period” the employee gave notice of revocation to the employer and the union. In the interim period between the CBA’s expiration and the execution of a new CBA a year later, several employees resigned from the union and sought to revoke their deduction authorizations. The union honored the resignations but not the deduction revocations.
While all parties to the case presented the issue as one of Frito-Lay, Inc.’s viability – i.e., whether the limitation of the revocation right to a short window before the CBA’s expiration satisfied the LMRA’s requirement that the authorization not be irrevocable beyond the CBA’s expiration – the D.C. Circuit majority avoided the issue. The court did so by interpreting the NLRB’s ruling as finding that employees whose employment commenced more than one year before the CBA’s expiration did not have any window tied to the CBA in which to revoke their authorization. The court relied (and claimed that the NLRB relied) on the authorization’s language stating that revocation could be accomplished “from year to year []after” the sooner to occur of the one year anniversary or the CBA’s expiration. The court found that under this interpretation the case could not be decided based on a rote application of Frito-Lay, Inc., and remanded the case to the NLRB to explain its reasoning for any extension of Frito-Lay, Inc. to these facts.
Judge Silberman authored a dissenting opinion criticizing the majority’s re-interpretation of the NLRB’s decision. Judge Silberman argued that all parties before the NLRB had understood that the authorization permitted revocation during a 15 day window before the anniversary or the CBA’s expiration, and that the NLRB had not in fact found otherwise as the majority claimed. Accordingly, Judge Silberman would have found the viability of Frito-Lay, Inc. to be before the court, and strongly suggested that he would have found Frito-Lay, Inc. contrary to the LMRA because it substituted the ability to revoke authorization during a window before the CBA expired for the LMRA’s right to revoke authorization “beyond,” i.e., after, the CBA expired.
Johnson v. Interstate Management Company, LLC, 849 F.3d 1093 (D.C. Cir. 2017).
In Johnson v. Interstate Management Company, LLC, the D.C. Circuit held in a case of first impression within the circuit that OSHA does not provide employees with any cause of action to sue their employers for alleged violations of OSHA’s anti-retaliation provisions. Instead, the employee’s recourse is to file an administrative complaint with the Department of Labor, which may then investigate and take action on the complaint.
The facts of the case are relatively straightforward: a hotel employer fired its cook employee because it had identified several instances in which the employee had engaged in unsanitary kitchen practices. The employee sued, claiming that the termination was in fact undertaken in retaliation for his prior complaints about the employer to the Occupational Safety and Health Administration, one of which had led to the imposition of a $34,200 fine against the employer. The district court dismissed the retaliation claim.
The D.C. Circuit affirmed the district court’s dismissal, finding that OSHA did not provide a private right of action for the employee’s claim. The court looked to OSHA’s text, which provides that employees may file a complaint about alleged retaliatory actions with the Department of Labor, and that the Department of Labor may initiate an investigation and bring an action in an appropriate district court. The OSHA statute provides no express right for employees to sue on retaliation claims. The court held that OSHA did not create such a cause of action by implication because the statute specifically addresses who may bring lawsuits and reserves that authority to the Department of Labor, suggesting that Congress intended to preclude other parties such as employees from filing suit.
FedEx Home Delivery v. National Labor Relations Board, 849 F.3d 1123 (D.C. Cir. 2017).
In FedEx Home Delivery v. National Labor Relations Board, the D.C. Circuit found that the NLRB could not escape the effect of a prior D.C. Circuit decision holding FedEx single route drivers to be independent contractors, rather than employees. In the prior 2009 case, FedEx Home Delivery v. National Labor Relations Board, 563 F.3d 492 (D.C. Cir. 2009), the D.C. Circuit held that a group of single-route FedEx drivers in Wilmington, Massachusetts were independent contractors, not employees, for purposes of the National Labor Relations Act. The NLRB then attempted to find, on what the court described as “a materially indistinguishable factual record,” that single-route FedEx drivers in Hartford, Connecticut were employees.
In its second decision, the NLRB attempted to escape the 2009 D.C. Circuit ruling by purporting to adopt a new legal standard for the independent contractor analysis that was at odds with the standard applied by the D.C. Circuit. The court held that while administrative agencies may reasonably change their interpretation and implementation of the laws they administer without losing Chevron deference, prior Supreme Court decisions had found that the employee/independent contractor analysis involves a pure application of common law agency principles for which courts need not defer to the NLRB’s expertise. Accordingly, the NLRB’s new decision was not entitled to deference and the case was governed by the D.C. Circuit’s 2009 ruling.
Banner Health System v. National Labor Relations Board, 851 F.3d 35 (D.C. Cir. 2017).
In Banner Health System v. National Labor Relations Board, the D.C. Circuit affirmed the NLRB’s ruling that an employer’s confidentiality agreement was overbroad, but vacated the NLRB’s ruling that the employer’s investigative confidentiality rule was an unfair labor practice because there was no evidence that the investigative confidentiality rule was uniformly applied to all of the employer’s investigations.
The case arose out of a hospital employer’s issuance of discipline to an employee for failing to follow the hospital’s instructions regarding the sterilization of equipment. While the employee’s retaliation claim was ultimately rejected, the NLRB’s general counsel also contended, and the NLRB found, that a confidentiality agreement and investigative confidentiality policy maintained by the hospital also constituted unfair labor practices.
The D.C. Circuit upheld the NLRB’s findings regarding the confidentiality agreement, which defined “confidential information” to include, among other things, “private employee information (such as salaries, disciplinary action, etc.) that is not shared by the employee.” The confidentiality agreement stated that violations could subject employees to disciplinary action including termination. The D.C. Circuit noted that discussion of the terms and conditions of employment is protected activity under Section 7 of the National Labor Relations Act and agreed that the confidentiality agreement was overbroad and could reasonably be construed by employees to prohibit them from engaging in protected activity. The court also found that the safe harbor in the confidentiality agreement permitted discussion of employment information shared by an employee did not salvage the provision because it was ambiguous and therefore inadequate to protect employees exercising concerted activity rights. Because the agreement was not tailored to the hospital’s legitimate interests in patient confidentiality, it was overbroad and constituted an unfair labor practice.
The court disagreed, however, that the employer’s purported investigation confidentiality policy violated the NLRA. The NLRB primarily relied upon an interview form used by the hospital which, in an introductory session, advised employees to state in all interviews that the details of the investigation should be kept confidential. Notwithstanding this instruction, however, the hospital’s human resources consultant testified that the form was not shown to all employees and that the hospital did not request confidentiality in all investigations. Instead, confidentiality was only requested where multiple witnesses had to be interviewed (so that one witness’ statement did not taint another’s) and in sensitive investigations involving sexual harassment, hostile work environments, and the suspicion of abuse. While explicitly withholding comment on the NLRB’s requirement that employers adopt a case-by-case approach to investigative confidentiality, the D.C. Circuit found that the evidence did not support that the employer maintained a categorical policy and overturned the NLRB’s ruling on the purported investigative confidentiality policy.
ABM Onside Services-West, Inc. v. National Labor Relations Board, 849 F.3d 1137 (D.C. Cir. 2017).
In ABM Onside Services- West, Inc. v. National Labor Relations Board, the D.C. Circuit addressed the standards for determining the NLRB’s jurisdiction over labor disputes in the railway and airline industries, and held that the NLRB could not simply adopt another federal agency’s change in the standard without offering a reasoned explanation for its decision.
Under the Railway Labor Act, certain labor disputes involving the railway and airline industries are subject to the jurisdiction of the National Mediation Board (NMB), not the NLRB. The NMB has jurisdictions over disputes involving employers who (1) are common carriers or are directly or indirectly owned or controlled or under common control with a common carrier, and (2) perform work traditionally performed by the employees of a common carrier. The NLRB typically refers cases involving substantial jurisdictional questions to the NMB for a determination regarding jurisdiction and defers to the NMB’s determination. The NMB is regarded as a more employer-friendly agency because it lacks the NLRB’s enforcement and investigative powers.
The employer in this case was a baggage handling contractor retained by a consortium of airlines that operate out of Portland International Airport. The consortium established all of the contractor’s operating procedures and provided its operating manuals, had access to documents concerning a wide range of the contractor’s operations, had the power to approve or disapprove the contractor’s staffing plans, including a requirement to approve overtime work by the contractor’s employees, and could direct the contractor to remove specific employees from the contract. The consortium provided the contractor’s equipment, provided the contractor with office space free of charges, and required that the contractor’s employees wear uniforms displaying the consortium’s logo. The consortium did not have the power, however, to directly discipline the contractor’s employees or terminate their employment.
Prior to 2013, the NMB utilized a six factor test evaluating the totality of a contractor’s operations. Under this test, the contractor would in all likelihood have been found to be controlled by the airline consortium and subject to NMB, not NLRB, jurisdiction. In 2013, however, the NMB – without explanation or overruling its prior decisions – began requiring that airlines exercise a substantial degree of control over the firing and discipline of a contractor’s employees in order to find jurisdiction. In effect, the NMB began treating one of its six factors as outweighing the other five. The NLRB, also without explanation, began applying the NMB’s new standard. The D.C. Circuit held that under administrative law principles, agencies must provide reasoned explanations for deviations from their precedents. The fact that the NLRB essentially adopted the framework created by an independent agency did not eliminate this requirement. Because the NLRB neither provided a reasonable explanation for the NMB’s change in standards nor referred the case to the NMB to provide such an explanation itself, the NLRB’s assumption of jurisdiction was held to be arbitrary and capricious and the D.C. Circuit vacated the NLRB’s decision.
Scomas of Sausalito, LLC v. National Labor Relations Board, 849 F.3d 1147 (D.C. Cir. 2017).
In Scomas of Sausalito, LLC v. National Labor Relations Board, the D.C. Circuit applied the NLRB’s established doctrine that an employer faces strict liability for withdrawing its recognition of a union based on the union’s loss of majority support, but found that the NLRB abused its discretion in imposing a bargaining order prohibiting challenges to the union’s majority status where the record showed that the union induced the employer to withdraw recognition by concealing facts.
While the employer’s workforce had been unionized from 2000 to 2012, in 2012 the last collective bargaining agreement expired and the union did not request bargaining for over a year. Nor had employees received communications from the union or had union meetings been held for several years, despite the union’s ongoing collection of dues. In late 2013, a majority of the employer’s workforce signed a decertification petition, which was presented to the employer and filed with the NLRB. When a union organizer found out about the petition, he emailed the employer to request bargaining, but did not mention the petition. Without telling the employer, the organizer convinced 6 employees (a dispositive number for majority status) to withdraw their signatures on the petition. After comparing the petition’s signatures with the signatures in its payroll records (and without knowledge of the revocation) and finding the signatures to be authentic, the employer withdrew its recognition of the union. The union still did not tell the employer of the revocations, but rather filed an unfair labor practice charge with the NLRB. The NLRB found that the employer had wrongfully withdrawn recognition of the union and entered a bargaining order requiring a reasonable time period of bargaining and prohibiting challenges to the union’s majority status during this period.
The court noted that under an NLRA, an employer that believes its union lacks majority support has three options: to request a formal NLRB-supervised decertification election, to internally poll its employees, or to withdraw recognition from the union and refuse to bargain. When an employer, as here, elects the third, unilateral option, it acts at its peril that the union may not in fact lack majority support. The D.C. Circuit found that under this standard, the employer committed an unfair labor practice notwithstanding the fact that the employer was not told that some of the petition’s signatories had revoked their signatures. The court did hold, however, that under the circumstances of this case the imposition of a bargaining order was an abuse of discretion. The court noted that the case involved unusual facts due to the union’s withholding of material information and that there had not been a willful or deliberate NLRA violation by the employer. The court noted that under these circumstances, a decertification election could be fairly held without any risk of taint from the unfair labor practice, and that the decertification petition still had the support of more than the 30% of employees required to trigger an election.
Submitted by:
Jack Blum