First Circuit
Teixeira v. Town of Coventry, 882 F.3d 13 (1st Cir. 2018).
Employee was terminated after her return from her third medical leave in a three-year span. Her employer, the Town of Coventry, Rhode Island (the “Town”), asserted that her dismissal was because of poor performance. Employee filed suit against the Town and her supervisor and alleged that she was discriminated against because of her disability and retaliated against for taking medical leave. A week-long trial was held. At the trial’s conclusion, the trial judge instructed the jury using an adapted version of the McDonnell Douglas framework, over Employee’s objection. The jury returned a verdict in favor of the Town and the supervisor.
Pursuant to Rule 59 of the Federal Rules of Civil Procedure, Employee filed a motion for a new trial. Employee based her motion on instructional error. The trial judge denied the motion. The First Circuit reviewed the case to determine whether the denial was an abuse of discretion. The First Circuit held that the trial judge did not abuse his discretion. Further, the Court held that the McDonnell Douglas framework can, in the trial court’s discretion, be put to effective use in the shaping of jury instructions. The Court further held that trial courts must not provide a mechanical and mindless recitation of the McDonnell Douglas process steep in extensive legalistic terms. But a trial court, such as this one, can use the framework as part of the jury instructions as long as it is translated in everyday parlance and fit to the facts and circumstances of the case.
Submitted by:
Ali Khorsand
Adler Pollock & Sheehnan
One Citizens Plaza, 8th Floor
Providence RI 02903
401.274.7200
akhorsand@apslaw.com
Second Circuit
Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018).
Writing for the majority, Chief Judge Katzmann says the following: (1) sexual orientation discrimination is discrimination because of sex “because one cannot fully define a person’s sexual orientation without identifying his or her sex” and “sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted.” (2) Discriminating against an employee because he is gay necessarily takes into account that employee’s sex, because sexual orientation is a “proxy” for sex. In other words, “a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.” (3) Gender stereotyping also factors into the analysis. Title VII already prohibits stereotyping. In this instance, discrimination on the basis of gender is rooted in stereotypes about the appropriate gender roles for men and women. Stereotypical male behavior has the man attracted to women. Gays and lesbians undercut that stereotype. (4) This form of discrimination also constitutes associational discrimination. The Second Circuit has already deemed it illegal to fire a man because he is engaged to a black woman. The reasoning is that the man is punished for his interracial association. The same logic applies to gays who are fired because they associate with men.
The majority ruling rejects the argument that Title VII cannot reach this far because Congress has rejected efforts over the years to add sexual orientation as a protected class. But, the majority concluded, reading tea leaves into congressional inaction is tricky because bills die in Congress for many reasons. It is also not enough for defendants to argue that Congress did not have sexual orientation discrimination in mind in 1964 when the Act was passed. The majority notes that courts have interpreted Title VII to cover subsets of gender discrimination even though Congress did not endeavor to outlaw that behavior, including sexual harassment, which the Supreme Court held violates Title VII in 1986, more than 20 years after Title VII was enacted.
Stephen Bergstein, Esq.
Bergstein & Ullrich, LLP
5 Paradies Lane
New Paltz, New York 12561
(845) 419-2250
www.TBULaw.com
www.secondcircuitcivilrights.blogspot.com
Fifth Circuit
Rayborn v. Bossier Parish Sch. Bd., 881 F.3d 409 (5th Cir. 2018).
The plaintiff, Lori Rayborn, was a former nurse at Parkway High School within the Bossier Parish School District, where her children also attended school. In 2011, a diabetic student at Parkway committed suicide due to bullying at the school, and in connection with an action brought by the student’s parents against the Bossier Parish School Board, Rayborn’s notes were subpoenaed. Two administrators met with Rayborn to discuss the notes in advance of production, and during that meeting, Rayborn expressed concerns over the school’s failure to put the deceased student on a 504 health plan and a number of other “red flags” in the school’s handling of the student’s health needs. After that meeting, Rayborn alleged the two administrators treated her differently, giving her cold stares, avoiding conversation with her, and reprimanding her. Ultimately, Rayborn was given a mandatory transfer to another school within the system. The transfer did not involve a reduction in pay or benefits, but she was no longer at the same school as her own children, and she raised several concerns regarding the facilities at her new school. Rayborn filed two grievances, to which she received no response, and she claimed she was given a false evaluation. She quit within a few months of the transfer.
Rayborn sued the School Board as well as the two administrators, in both their personal and official capacities, contending that the defendants were liable for retaliating against her for expressing her views about the administrator’s inadequacies in handling various medical situations and impugning her liberty and reputational interests in violation of the Fourteenth Amendment. She also claimed that the defendants’ actions amounted to intentional infliction of emotional distress. The District Court granted summary judgment in favor of the defendants on all counts, and Rayborn appealed.
The Fifth Circuit examined Rayborn’s retaliation claim under both Louisiana’s whistleblower statute, La. Rev. Stat. § 23:967, and the First Amendment. As to § 23:967, the Court found that Rayborn’s claim failed because she could not show an adverse employment action, and the cold stares, rude conduct, and transfer she allegedly suffered after voicing her concerns was not sufficient to meet the high standard for constructive discharge. As to the question of an adverse employment action, the Court observed that Rayborn’s transfer did not result in a reduction of pay, benefits, prestige, or otherwise an objectively worse position. (Circuit Judge James Dennis dissented on this one point, finding that Rayborn’s evidence of subjectively worse facilities was sufficient to at least defeat summary judgment.) With respect to the First Amendment retaliation claim, recognizing that municipal liability requires an official policy that prompts or moves unconstitutional conduct, the Court found that Rayborn’s claims against the School Board and the two administrators in their official capacities failed because she failed to identify a specific school policy or custom in accordance with which they allegedly violated her constitutional rights. As for the claims against the administrators in their individual capacities, the Court found that Rayborn enjoyed no right to protection as a citizen addressing matters of public concern under the First Amendment because her notes were authored and her concerns were raised pursuant to her official responsibilities – they were not given by Rayborn as a citizen acting outside her official responsibilities. As such, the Court ruled that the two defendants had a viable qualified immunity defense.
Finally, the Court rejected Rayborn’s Fourteenth Amendment and IIED claims. As to the former, while the Court recognized that discharge from public employment can give rise to procedural due process claims in certain circumstances (i.e., under circumstances that put the employee’s reputation, integrity, or honor at stake), Rayborn was not discharged. As to the IIED claim, the Court felt the defendants’ conduct was not so extreme and outrageous or more than a reasonable person could be expected to endure, as required to support liability under state law.
Creative Vision Resources v. NLRB, ___ F.3d ___, 2018 WL 851771 (5th Cir. Feb. 14, 2018).
Plaintiff staffing company succeeded another company as the staffing provider for garbage trucks in New Orleans. Instead of approaching and negotiating with union that had represented employees of the predecessor company, the plaintiff set its own initial terms and conditions. The union filed an unfair-labor-practice charge against the plaintiff, alleging violations under Section 8(a) of the National Labor Relations Act. The administrative law judge concluded, among other things, that the plaintiff was not the “perfectly clear” successor of the predecessor company and thus was within its right to set initial terms and conditions. The NLRB reversed, and the plaintiff appealed to the Fifth Circuit.
In a substituted opinion, the Fifth Circuit ruled that the plaintiff staffing provider was the perfectly clear successor of the predecessor labor supply company and thus had an obligation to recognize and bargain with the incumbent union. More specifically, the Court found that the staffing provider did not provide sufficient and timely notice of its intent to change the workers’ terms and conditions of employment, thereby clarifying that it was an ordinary rather than perfectly clear successor. In addition, the Fifth Circuit found that a union bargaining demand was not required to trigger the provider’s duty, as a perfectly clear successor, to not unilaterally set initial terms of employment. The Court further held that the plaintiff forfeited any argument that the complaint issued by the NLRB was void because it was issued by an Acting General Counsel serving at the time in violation of the Federal Vacancies Reform Act because it failed to timely raise this objection to the Board.
Submitted by:
Laura E Carlisle
Baker, Donelson, Bearman,
Caldwell & Berkowitz, PC
201 St. Charles Avenue, Suite 3600
New Orleans, Louisiana 70170
(504) 566-8643
lcarlisle@bakerdonelson.com
Sixth Circuit
Ohlendorf v. United Food & Commercial Workers Int’l Union, Local 876, 883 F.3d 636 (5th Cir. 2018).
In Ohlendorf v. United Food & Commercial Workers Int’l Union, Local 876, two former union employees sued under the Labor Management Relations Act (“LMRA”) and the National Labor Relations Act (“NLRA”) after their union refused to honor their demand that dues not be deducted from their paychecks. The Section 302 of the LMRA imposes criminal liability on an employer that deducts union dues from an employee’s paycheck and on a union for accepting such dues, unless the employee authorizes the deduction. 29 U.S.C. § 186(b). Here, both of the employees had made the necessary authorizations, but attempted to revoke them three years later. When their union insisted that the employees follow the established revocation protocol, they filed a putative class action under the LMRA and the NLRA.
The collective bargaining agreement that covered the plaintiffs provided a yearly, 15-day window during which employees could revoke their authorization for union dues to be deducted from their paychecks. Unless revoked by certified mail during this period, the checkoff authorizations were irrevocable. The plaintiffs here signed the authorizations at hire, but resigned their union memberships three years later. When they resigned their memberships, the plaintiffs also sent written revocations of their dues checkoffs. But they did so by regular mail and outside that annual 15-day window. The union thus refused to accept the revocations.
The Sixth Circuit held that there was no statutory cause of action that would allow the plaintiffs to sue under Section 302 of the LMRA, a criminal statute. Furthermore, the court refused to find an implied right of action under Section 302 of the LMRA, as it does not specify the individuals protected or their ability to sue. The Sixth Circuit also rejected the plaintiffs’ NLRA claim, which alleged that the union had breached its duty of fair representation. Although the court characterized the union’s refusal to accept a revocation sent approximately a month before the revocation period as “head scratching,” the union’s actions were not “arbitrary, discriminatory, or in bad faith,” so as to violate the NLRA.
Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595 (6th Cir. 2018).
The Sixth Circuit in Mosby-Meachem v. Memphis Light, Gas & Water Division, found in favor of an employee who alleged disability discrimination after her employer denied a request to work from home for 10 weeks. Although the employer submitted evidence that in-person attendance was an essential function of the employee’s job, a jury returned a verdict for the employee, and the Court of Appeals concluded that there was enough evidence in the record to justify the verdict.
Mosby-Meachem was an in-house attorney for MLG&W, a public utility. Due to complications related to her pregnancy, Mosby-Meachem requested that she be permitted to work from a bed either at home or at the hospital for a period of 10 weeks. MLG&W denied the request, explaining that physical presence is an essential function of the job, and that teleworking would create concerns about maintaining confidentiality. Mosby-Meachem sued and a jury awarded her compensatory damages. The district court also awarded equitable relief based on lost pay and forced use of sick leave, even though Mosby-Meachem’s license to practice law was temporarily suspended for part of the covered period due to her failure to pay her annual membership fee.
On appeal, MLG&W pointed to evidence that in-person attendance was an essential function of Mosby-Meachem’s job. The evidence included her job description, several items of which inherently required in-person attendance. Yet, the Sixth Circuit affirmed the denial of MLG&W’s motions for judgment as a matter of law and for a new trial, as well as the award of equitable relief. The court emphasized testimony from Mosby-Meachem’s colleagues and clients that she could do her job from home and evidence that in eight years of working at MLG&W, she had never performed some of the items listed in her job description that would require in-person attendance. Further, there was evidence that other employees were allowed to telecommute on occasion, and that Mosby-Meachem had herself previously worked remotely without incident. Finally, the court affirmed the award of equitable relief, because neither party had been aware Mosby-Meachem’s license to practice was suspended at the time, and unauthorized practice of law is an issue for the state bar, not the court.
Submitted by:
Kamil Robakiewicz
Miller Canfield
One Michigan Avenue, Suite 900
Lansing, Michigan 48933
robakiewicz@millercanfield.com
Seventh Circuit
Rodrigo v. Carle Foundation Hospital, 879 F.3d 236 (7th Cir. 2018).
The plaintiff, a medical resident diagnosed with Restless Leg Syndrome, a sleep disorder, claimed his hospital-employer violated the ADA by failing to provide him with a reasonable accommodation for his disability, discriminating against him because of his disability when it terminated him from its medical residency program, and retaliating against him for engaging in protected activity under the ADA. The defendant hospital had a policy that required medical residents to pass the United States Medical Licensing Examination (“USMLE”) Step 3 test within a certain time frame before they would be offered a contract for the third year of the hospital’s residency program. The hospital also had a policy that “[m]ore than two failures of USMLE Step 3 … will result in termination from the program.” Following his first two medical residency program years, plaintiff twice failed to pass the required “Step 3” examination. He attributed these failures to fatigue brought on by his newly diagnosed sleep disorder. Before his third attempt to pass Step 3, plaintiff did not request an accommodation for a disability. However, his supervisor suggested he take a leave of absence to focus on passing Step 3 and reminded plaintiff that under the hospital’s policies, he would be terminated from the residency program if he failed the test a third time. After initially rejecting the leave offer, plaintiff changed his mind and took three weeks off to prepare for his third attempt to pass Step 3. He was provided a twelve‐week extension for his second program year by the hospital. Shortly after the extension ended, plaintiff took the Step 3 test for the third time. About one month later, he reported to the hospital he had failed the Step 3 test again. He was terminated from the residency program.
The ADA prohibits employment discrimination against a qualified individual on the basis of disability. The ADA defines the term “qualified individual” as an individual with the required skill, experience, education, and other job-related prerequisites for the position and who, with or without reasonable accommodation, can perform the essential functions of his or her job. Prohibited discrimination includes failing to make a reasonable accommodation for the known physical or mental limitations of an otherwise qualified individual with a disability, unless the accommodation would impose an undue hardship of the business operations of the employer. Unlike the ADA’s anti-discrimination provisions, its anti-retaliation provision is not limited to protecting “qualified” individuals. Instead, the ADA protects any individual who engages in protected activity under the ADA. To prevail on an ADA retaliation claim, a plaintiff must demonstrate that he or she engaged in protected activity, that he or she suffered an adverse action, and there is a causal connection between the two.
The Seventh Circuit rejected all of plaintiff’s arguments seeking reversal of the district court’s summary judgment order. Notably, in the proceedings below, plaintiff had admitted that passing the Step 3 test was a core qualification for employment as a third year medical resident in the hospital’s program. On appeal, however, plaintiff attempted to “recast” his Step 3 failures as non-essential job functions. The Seventh Circuit rebuffed plaintiff’s arguments stating that “[n]o matter how the requirement of passing Step 3 is framed, whether as a core qualification or as an essential function, the evidence supports only one conclusion: a resident who cannot pass the test in the requisite time frame is not a “qualified individual” for the third Program year.” Passing the exam required for medical licensure was a legitimate requirement to be deemed “qualified” for ongoing participation in the hospital’s medical residency program. Because plaintiff failed to pass the Step 3 exam, he was not a “qualified individual” for the third year medical residency position under the ADA. His ADA discrimination and accommodation claims failed as a matter of law.
The Seventh Circuit also rejected plaintiff’s retaliation claim. In asserting that the hospital “retaliated” against him by refusing to waive its Step 3 passage requirements, the Seventh Circuit concluded that plaintiff was “really alleging a discrimination or accommodation claim rather than a true retaliation claim. [ ] Carle’s alleged ‘retaliation’ was simply an enforcement of its Step 3 policy, and the retaliation claim is thus a collateral attack on the legitimacy of that requirement.” The Court held that plaintiff “may not make an end‐run around the ‘qualified individual’ requirement by simply reframing a discrimination or accommodation claim as one for retaliation. Because he is not a qualified individual for the purposes of his discrimination and accommodation claims, he is not a qualified individual for his mislabeled retaliation claim.” Even if the claim was properly asserted as a claim for retaliation, the Seventh Circuit found that summary judgment for the defendant hospital should be affirmed because plaintiff presented no evidence demonstrating a causal connection between his asserted protected activity and either his termination or the refusal to reinstate him.
Verfuerth v. Orion Energy Systems, Inc., 879 F.3d 789 (7th Cir. 2018).
SOX forbids publicly traded companies from retaliating against an employee for “any lawful act done by the employee … to provide information … regarding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities fraud], any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders,” when the information or assistance is provided to a government agency or to a person with supervisory authority. 18 U.S.C. § 1514A(a). To succeed on a Sarbanes‐Oxley claim, a plaintiff must prove that he engaged in protected whistleblowing, that his employer knew he engaged in protected whistleblowing, and that his whistleblowing was a contributing factor in some adverse action taken by the employer against the employee. Harp v. Charter Communications, Inc., 558 F.3d 722, 723 (7th Cir. 2009). Verfuerth claimed he was protected from retaliation following his complaints to board members about various issues including “attorney overbilling, intellectual property disputes, conflicts of interest, and violations of internal company protocol.” The Seventh Circuit held that complaints about such practices do not constitute complaints related to “fraud” within the meaning of SOX and “an executive who advises board members to disclose a fact that the board already knows about has not ‘provided information’ about fraud. At most, he has provided an opinion. … Nothing in Sarbanes-Oxley, or any other federal statute, prevents a company from firing its executives over differences of opinion.” As the Seventh Circuit noted, “[a] person does not become a whistleblower just by advising his colleagues about their own disclosure obligations and then doing nothing when they fail to follow his advice.”
The Seventh Circuit also rejected Verfuerth’s attempt to salvage his SOX claim by alleging he complained about these activities to the SEC. Setting aside that Verfuerth adduced no evidence that anyone at Orion knew or even could have known about his alleged attempt to report any issues to the SEC, the Seventh Circuit found Verfuerth’s argument unavailing since Verfuerth, “as Orion’s CEO during the relevant period, bore ultimate responsibility for disclosing material information to the SEC. Thus, if Orion’s failure to disclose the complained‐of conduct to its shareholders amounted to securities fraud, then Verfuerth participated in that fraud when he knowingly filed SEC reports in June and August of 2012 that made no mention of these issues.”
Grussgott v. Milwaukee Jewish Day School, Inc., 882 F.3d 655 (7th Cir. 2018).
In 2012, the U.S. Supreme Court adopted the “ministerial exception” to employment discrimination laws, which provides that under the First Amendment, religious organizations may hire and fire ministerial leaders without governmental interference. et a Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al., 565 U.S. 171 (2012).
Grussgott is the first case in which the Seventh Circuit has been asked to define the ministerial exception since the Supreme Court’s landmark unanimous decision in Hosanna-Tabor. The Seventh Circuit concluded that the plaintiff’s “role as a teacher of [ ] faith to the next generation outweighed other considerations” and demonstrated she was covered by the ministerial exception. Even accepting plaintiff’s version of the facts as true, the Court found that plaintiff falls within the ministerial exception as a matter of law. Her integral role in teaching Judaism and the school’s motivation in hiring her demonstrated her role furthered the school’s religious mission, notwithstanding the school’s nondiscrimination hiring policy.
Submitted by:
Ines Monte
Littler Mendelson
321 North Clark Street, Suite 1000
Chicago, IL 60654
imonte@littler.com
D.C. Circuit
Dunning v. Ware, ___ F.3d ___, 2018 WL 1052765 (D.C. Cir. Feb. 1, 2018).
D.C. Circuit in unreported opinion emphasizes that employee’s showing that employer’s justification is a pretext, standing alone, is insufficient to preclude summary judgment; employee must present evidence permitting an inference that employment decision was based on a protected characteristic.
Submitted by:
Jack Blum
Paley Rothman
4800 Hampden Lane 6th Floor
Bethesda, MD 20814
301-968-3415
jblum@paleyrothman.com