By Samantha L. Brooks and Karla Grossenbacher

Seyfarth Synopsis: Employees’ use of their personal social media accounts in ways that could impact an employer’s business present challenges to employers.

In this case, a Maryland state government employee claimed that she was retaliated against for a Facebook post where she referred to a Maryland gubernatorial candidate as an “a**clown.” In granting a preliminary injunction and reinstating an employee’s job duties, the U.S. District Court for the District of Maryland held that reassignment of the employee’s duties three days after the Facebook post was retaliation for protected speech, particularly where the employer could not demonstrate how the post harmed the employer. Thomson v. Belton, No. ELH-18-3116, 2018 WL 6173443 (D. Md. Nov. 26, 2018).

The plaintiff served as the public information officer for the Natural Resources Police (NRP), a subdivision of the Maryland Department of Natural Resources (DNR). She was a public employee and not a political appointee. As the public information officer, plaintiff acted as a spokesperson for the DNR, responded to media inquiries, administered the NRP’s social media accounts, and issued press releases, among other duties.

On September 17, 2018, while in her home, using her own electronic device and her own Facebook account, she responded to a Facebook post of a colleague by referring to Maryland gubernatorial candidate Ben Jealous as an “a**clown.” Plaintiff’s comment was prompted by Mr. Jealous’ decision to veto a reporter’s participation as a panelist in the only gubernatorial debate with Governor Larry Hogan. The following day, plaintiff’s supervisor asked her whether she had posted “*a**clown” on Facebook. She acknowledged that she had, offered to delete the post, and immediately did so of her own volition. Of note, plaintiff’s Facebook post did not violate the DNR’s social medial policy. Less than one week after the post, plaintiff was stripped of the majority of her media-related duties and they were reassigned, although she was permitted to draft press releases. Neither her title nor salary were changed.

On October 9, 2018, plaintiff filed suit against Mark Belton, Secretary of the DNR, in his individual and official capacity alleging violations of plaintiff’s rights under the First and Fourteenth Amendments. She also filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction which, upon agreement by the parties, was treated as a Motion for Preliminary Injunction.

The defendant argued that plaintiff was demoted because of protracted performance issues, and not because of the Facebook post. Specifically, the defendant highlighted three instances where plaintiff had failed to communicate the happening of newsworthy events, including the discovery of a chest containing human bones at a beach in Ocean City, Maryland, the drowning death of a child, and a news article that reported a motor vehicle accident involving an NRP officer which resulted in the death of a family pet.

Since plaintiff was a public employee, the Court considered plaintiff’s claim under the Connick/Pickering standard, i.e. (1) whether there was an adverse action, (2) whether the employee was speaking as a citizen on a matter of public concern, (3) whether the employee’s interest in speaking on the matter of public concern outweighed the government’s interest in managing the workplace, (4) and whether the employee’s speech was a substantial factor in the adverse action. Thomson, 2018 WL 6173443 at *15. See Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983).

Adverse Action

The Court found that the plaintiff was subject to an adverse action. Prior to the reassignment of her media-related duties, plaintiff’s most important and most significant duties involved direct contact with the media. After reassignment, she was prohibited from such direct contact. The Court found that her new role — without the media duties — was less prestigious and less interesting. Id. at 21. The Court also noted plaintiff’s reassignment was neither trivial nor de minimus solely because plaintiff’s pay and some responsibilities remained unchanged.

Matter of Public Concern

The Court noted that plaintiff’s comment pertained to a matter of public concern. The Court further noted that discussion about political candidates — including plaintiff’s one word Facebook comment — fell within the realm of First Amended protected speech. The Court held that plaintiff’s comment was “in response to the posts of others on the issue of the candidate’s decision to veto a reporter from serving on the panel for a key election debate. This suggests that she was participating in an online public discussion . . . .” Id. at *22. Finally, the Court noted that plaintiff was speaking as a private citizen and not in the course of her official duties.

Employer’s Interest in Managing the Workplace

Defendant did not provide any evidence that plaintiff’s speech harmed NRP or DNR operations. The only harm the defendant could identify was that calling a political candidate a derogatory name and using inappropriate language was contrary to goals of the NRP. The Court held, however, that “inappropriate language unrelated to the employee’s employment, and spoken outside the workplace, does not intrinsically harm the employer’s interests.” Id. at 27.

Speech was a Substantial Factor in Adverse Action

The Court held that the reassignment of plaintiff’s duties was in retaliation for her Facebook post. The temporal proximity of plaintiff’s job assignment, just three days after Facebook post, clearly demonstrated that plaintiff’s protected speech was a substantial factor in the reassignment of her duties. Id. at 24. Of note, the Court noted that the record did not corroborate defendant’s claims that plaintiff had performance issues.

The court ultimately held that plaintiff was entitled to a preliminary injunction requiring the immediate reinstatement of plaintiff’s job duties.

Private Employer Takeaways

Have a social media policy! Employees who work for private, non-governmental employers do not generally have First Amendment protection for their speech in the workplace. Before taking any action based on an employee’s speech on social media, employers should first consult their social media policies to determine whether there has been a violation of the policy. Employers should also determine if the employee has some other interest at issue, such as speech that could implicate the protections of Title VII, speech that could violate the employer’s EEO or anti-harassment policy, or speech that implicates an employee’s rights under various union regulations, before taking any action.

Document, document, document! Employers must remember to document performance deficiencies or mistakes. If employers need to justify a personnel action or if litigation ever arises, it will be important to have a contemporaneous record of performance issues.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations, Social Media Practice Group, or Workplace Policies and Handbooks teams.

By Dawn Reddy Solowey and Latoya R. Laing

Seyfarth Synopsis: The 8th Circuit recently held that while a request for a religious accommodation  may qualify as a protected activity, it is not necessarily “oppositional” so as to give rise to an opposition-clause retaliation claim under Title VII. Employers considering requests for religious accommodation should, despite this Circuit’s narrow decision, proceed carefully when considering any request.

Last year we blogged about a Minnesota District Court’s decision holding that a religious accommodation request did not constitute a protected activity under Title VII. The plaintiff appealed the ruling.  On November 13, 2018, the Eighth Circuit Court of Appeals affirmed, holding that it could not “categorically” resolve whether a request for religious accommodation is oppositional activity for a retaliation claim, but that it would affirm the ruling for the employer on the summary judgment record in this case.

Case Background

The case is EEOC v. North Memorial Health Care, Civ. No. 17-2926 in the U.S. Court of Appeals for the Eighth Circuit. The Equal Employment Opportunity Commission (EEOC) sued the employer hospital, claiming that the employer had retaliated against an applicant by withdrawing a conditional job offer because she asked for a scheduling accommodation for her religious beliefs as a Seventh Day Adventist. On March 15, 2017, the employer moved for summary judgment. The employer argued that the retaliation claim failed on grounds including that a religious accommodation request did not amount to protected activity as a matter of law. The District Court agreed, granting summary judgment in favor of the employer.  The EEOC appealed, joined by amicus curiae that included the American Civil Liberties Union (ACLU).

What Did the Court Rule?

The 8th Circuit explained that it was considering an “issue of first impression,” namely whether “requests for religious accommodation are protected activity under Title VII’s anti-retaliation provision.”  The Court held that “the issue cannot be resolved categorically,” but affirmed the district court’s ruling on the summary judgment record in this case, holding that the applicant’s simple request for a religious accommodation was not “oppositional” activity as required for Title VII retaliation claims.

Title VII makes it unlawful for an employer to discriminate against an employee or an applicant for employment because the employee opposed an unlawful employment practice. To establish a prima facie case of retaliation, the EEOC was required to show that the applicant opposed an unlawful practice.

The Court relied on the Supreme Court case Crawford v. Metro. Gov’t of Nashville and Davidson Cty. 555 U.S. 271 (2009), emphasizing that when an employee communicates to the employer a belief that the employer had engaged in discrimination, that communication almost always constitutes the employee’s opposition to the activity.

However, in this case, the Court held that the applicant’s actions were not oppositional because “merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation.”

While the Court generally construes the statute “broadly to cover opposition to employment actions that are not unlawful,” the plaintiff’s request for religious accommodation, by itself, “did not reflect, much less communicate, any opposition or resistance to any North Memorial employment practice.”

The Court explained that at least for religious accommodation claims, “protected activity” is not always “oppositional activity.”  The Court held that in some circumstances, a religious accommodation request could form the basis for a retaliation claim, such as if an employer denied an accommodation on the grounds that it was not in fact based on a religious practice and fired the employee for making the request.  However, when the employee or applicant requests a religious accommodation, and the request is denied on the grounds that it cannot reasonably be accommodated absent undue hardship, there is no basis for an opposition-clause retaliation claim.  Instead, the employee or applicant’s exclusive claim is a disparate impact or disparate treatment claim under Title VII.

Finally, the Court noted that the applicant’s original EEOC charge had included a claim of disparate treatment.  However, the EEOC’s enforcement action alleged only unlawful retaliation.  Thus, while the Court held that the applicant’s “Title VII remedy as an unsuccessful job applicant was a disparate treatment claim under [the statute] for failure to reasonably accommodation,” there was in this case no disparate-treatment claim before the Court.

What Does This Case Signal for Employers Defending Retaliation Litigation?

In defending a retaliation claim, an employer should consider whether, in the relevant jurisdiction, there is a viable argument in its jurisdiction that a request for religious accommodation is not sufficient to establish protected activity as a matter of law.  This issue was one of first impression in the Eighth Circuit, and different courts are likely to reach different conclusions.  As always, it is important to keep in mind that the law governing retaliation claims under Title VII may differ from that under state and local laws.

What Does This Case Signal for Employers Managing Accommodation Requests?

Employers should follow a conservative approach in responding to religious accommodation requests.  Employers would be wise to assume — until there is settled, binding law to the contrary in the relevant jurisdiction on identical facts  — that a request for religious accommodation may be construed as protected activity under Title VII.  As a practical matter, this means that an adverse action that an employer takes against an employee, and that post-dates a religious accommodation request from the employee, may be challenged as retaliatory by the employee and/or the EEOC.  Further, an unlawful denial of a religious accommodation request can give rise to a disparate-treatment discrimination claim, even if there is no available retaliation claim.

Best Practices for Responding to Religious Accommodation Requests

Best practices for employers to respond to religious accommodation requests, and minimize the risk of retaliation liability, include:

  • Set up a policy and process for managing religious accommodation requests in a manner that is consistent and compliant with the jurisdiction’s law. Ensure that managers and HR are trained in the policy and process, and that employees know how to request a religious accommodation.
  • Review each religious accommodation request individually on a case-by-case basis. You can read our Roadmap for Responding to a Request for Religious Accommodation here. Given the complexities of this area of the law, it is wise to enlist the help of counsel who specializes in this area.
  • Ensure that any adverse actions taken against an employee, including those subsequent to a religious accommodation request, are based on legitimate, non-discriminatory and non-retaliatory reasons, and that the business reasons for those adverse actions are well-documented.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

By John Ayers-Mann and Patrick J. Bannon

Seyfarth Synopsis: Although an employee can prove discrimination by showing that an employer’s reasons for adverse action are pretextual, the Eleventh Circuit finds that an employee must do more than merely contest the proffered reasons to survive summary judgment.

A recent Eleventh Circuit decision illustrates that Plaintiffs in discrimination cases face a difficult path to trial. Hornsby-Culpepper pointed to the fact that male employees were given raises around the same time as when she was denied a raise and that her male predecessor was paid more despite being less qualified to show pretext. But, the court concluded that she was merely quibbling with defendant’s business judgment and that none of her evidence sufficed to create an issue of fact as to pretext.

In Hornsby-Culpepper v. Ware, D.C. Docket No. 1:15-cv-00347-SCJ (Oct. 19, 2018), the Eleventh Circuit held that an employee’s efforts to dispute her employer’s non-discriminatory reason for terminating her were insufficient absent evidence that the reasons offered were false.

Avis Hornsby-Culpepper, an African-American woman, served as the Clerk of Court for the Fulton County Juvenile Court from 2009 to 2011. In April 2011, she was terminated. The County hired Edwin Bell, an African-American man, to replace Hornsby-Culpepper. Bell earned $90,000 annually, which was similar to Hornsby-Culpepper’s salary at termination. In July 2012, the position became vacant.

Following a reduction in force, Omotayo Alli, Chief Administrative Officer for the court, submitted a request to hire a Clerk of Court. Interim County Manager David Ware approved Alli’s hiring request at a salary of $71,172. Alli hired Hornsby-Culpepper for the position and told her that she would receive her prior salary. Alli requested that the salary for the position be supplemented from the “professional services” budget. Ware denied the request.

After the denial, Hornsby-Culpepper approached Ware. She asked him why her salary increase was denied when he previously paid Bell more despite him being less qualified. Ware responded that it was because she was previously terminated. Hornsby-Culpepper believed that he denied the request because she was an African-American woman. She filed an EEOC charge in 2013 and a subsequent complaint in 2015 alleging sex discrimination and Equal Pay Act violations.

In February 2015, Hornsby-Culpepper applied for an Associate Judge position with the court, but was not selected. She believed that this was because Ware was friends with Judge Lovett, who was on the selection panel. In May 2015, Hornsby-Culpepper was terminated from her position. Hornsby-Culpepper amended her complaint, claiming that her non-selection and termination were retaliation against her for filing suit.

After discovery, defendants moved for summary judgment. Defendants claimed that plaintiff’s salary request was denied because the County Board of Commissions wanted Ware to stop supplementing salaries from non-salary budget items. Regarding plaintiff’s non-selection, defendants explained that a more qualified candidate was selected. As to plaintiff’s termination, defendants contended that she was terminated due to her performance as Clerk of Court. The district court found that plaintiff could not refute the offered reasons and granted the motion.

On appeal, plaintiff argued that defendant’s reasons were pretextual. She claimed that Ware had increased salaries for white employees, that it was questionable whether the county wanted him to stop using non-salary budgetary items for salaries, and that her prior termination was an improper consideration because it was without cause. The Eleventh Circuit rejected plaintiff’s contentions, explaining that she must do more than “merely dispute the wisdom of Ware’s reasoning.” Plaintiff also claimed that Ware was facing suit from other African-American women for sexual harassment, but the court declined to find those lawsuits to be a basis to infer discriminatory animus.

The court also rejected plaintiff’s Equal Pay Act claims. Although plaintiff disagreed with Ware’s reasons for paying her less, the court required her to show affirmative evidence that his reason was pretextual. As to plaintiff’s retaliation claims, the court found that she had adduced no evidence that the panel’s decision was retaliation due to Ware and Judge Lovett’s friendship. The court found plaintiff’s contentions surrounding her termination equally unpersuasive because plaintiff had failed to indicate evidence that contradicted Alli’s position that plaintiff was not a good fit. Accordingly, the court affirmed the district court’s decision.

Despite the evidence Hornsby-Culpepper produced, the court found that she had not met the quantum of evidence required to show pretext. In the Eleventh Circuit, the plaintiff’s evidence must do more than simply undermine defendant’s reasons, it must establish pretext itself.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Mark A. Lies, II,  Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing; “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv).”

We previously blogged about OSHA’s 2016 retaliation regulation and associated guidance, which had explained examples of post-accident drug-testing and safety incentive as instances of unlawful retaliation.  OSHA’s 2016 retaliation rule left employers uncertain about what programs were permissible and whether they would face citations for long-standing safety programs aimed at encouraging safe behaviors and reducing injury rates.

  1. OSHA’s Revised Perspective is Apparent in the New Standard Interpretation

OSHA’s new Standard Interpretation intends to “to clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.” The Interpretation explains that “evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.”

Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.

  1. OSHA Permits Consistent Post-Incident Drug Testing Policies

For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the hours following workplace safety incidents. The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” including:

  • “Random drug testing”;
  • “Drug testing unrelated to the reporting of a work-related injury or illness”;
  • “Drug testing under a state workers’ compensation law”;
  • “Drug testing under other federal law, such as a U.S. Department of Transportation rule”; and
  • “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs. Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident. For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested. OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to worker’s compensation retaliation tort claims.

3.         OSHA Permits Safety Incentive Programs

The Standard Interpretation reverses course on the 2016 retaliation regulation’s prohibition of safety programs. With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.” The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month. OSHA’s new position thus permits employers to bring back cash bonuses or the much-maligned monthly pizza party. The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries.

However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting. According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient. Employers need to undertake their choice of additional “adequate precautions,” such as:

  • “An incentive program that rewards employees for identifying unsafe conditions in the workplace;”
  • “A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;” or
  • “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace. A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding for new hires. The “mechanism for accurately evaluating employees willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses. Accordingly, if employers adopt these low-burden precautionary measures, they may bring back or now adopt safety programs that are popular and effective at reducing workplace injury rates.

For related information on drug testing requirements, we had blogged on the recent Department of Transportation (DOT) final rule amending its drug testing program for DOT-regulated employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation TeamLabor & Employment, or the Workplace Policies and Handbooks Teams.

 

By Ilana R. Morady and Jaclyn A. Gross

Seyfarth Synopsis: The Sixth Circuit recently upheld an administrative decision in favor of a miner’s whistleblower complaint, further underscoring the need for mine operators to implement strong anti-retaliation policies and keep detailed supporting records of internal investigations and employment-related decisions.

The Federal Mine Safety and Health Act (Mine Act) was originally enacted in 1977 to promote safe mining operations. Pursuant to Section 105(c) of the Mine Act, miners who believe they were terminated as a result of voicing their health or safety concerns can file a discrimination complaint with the Secretary of Labor. Recently, the Sixth Circuit ruled in Con-Ag, Inc. v. Sec’y of Labor, et al., to uphold a decision stating that Con-Ag violated Section 105(c) when it terminated one of its employees. The Federal Mine Safety and Health Review Commission declined to review the case, making the decision of the Administrative Law Judge (ALJ) the final decision of the Commission. The ALJ found that the employee was discharged in retaliation for reporting health and safety concerns to the Mine Safety and Health Administration (MSHA), the body that enforces the safety and health standards of mining operations.

A miner can establish a case of discrimination by showing that (1) he or she engaged in protected activity and (2) was subject to an adverse employment action that was at least partially motivated by that protected activity. “Protected activity” is defined broadly and includes filing complaints of alleged unsafe conditions to supervisors or the MSHA, refusing to work in unsafe conditions, requesting specific equipment or training, and participating in proceedings related to the Mine Act. Discriminatory behavior encompasses termination and demotion, but can also refer to being transferred to a less desirable position or to a reduction in pay or benefits. As discriminatory motive is difficult to prove using direct evidence, four factors are generally considered when determining whether the adverse employment action was connected to the protected activity: (1) the mine operator’s knowledge of the protected activity, (2) the operator’s hostility towards that activity, (3) the timing of the adverse action in relation to that activity, and (4) the operator’s disparate treatment of the miner.

Con-Ag conceded that the employee engaged in a protected activity when he spoke with MSHA investigators about working conditions in the mine, however it claimed that he was fired for threatening the company’s owner/manager during a conversation with a co-worker. Despite lack of direct evidence of hostility towards the employee, the ALJ found the elements of knowledge and timing to be persuasive, thus supporting her broader conclusion that “discrimination was at least one of the causes of [the employee’s] discharge.”

In response to Mine Act claims, mine operators can establish an affirmative defense by showing either that the adverse employment action was not related to the protected activity or that the action was related, but the company would have taken the same action even if the miner had not engaged in protected activity. The ALJ rejected Con-Ag’s defense as implausible and found that its asserted reason for the termination was pretextual, in large part due to the cursory nature of Con-Ag’s investigation prior to the employee’s discharge. The company never interviewed the employee and there was nothing in the record showing a history of violence, threatening behavior, or discipline whatsoever. The ALJ found that these oversights undermined Con-Ag’s argument that it would have fired the employee despite his involvement in protected activity.

In addition to upholding the ALJ’s findings, the Circuit Court denied Con-Ag’s request for review regarding back pay calculations and the order to reinstate the employee to his prior position. Con-Ag did not submit evidence pertaining to the calculations to the ALJ, but instead first raised its objection to the amount upon appeal, which the Circuit Court ruled unacceptable. With regard to reinstatement, Con-Ag claimed it was unable to comply due to the fact that it no longer owned the mine and that the employee did not wish to be reinstated. The Circuit Court held that Con-Ag failed to present sufficient proof that it no longer owned the mine and that the employee is free to decline the position.

Key Take Aways

In short, this case demonstrates the importance for mine operators to ensure that members of management are familiar with Section 105(c) and to have anti-retaliation policies in place. More specifically, those in management positions should recognize protected activity and be trained to respond appropriately when it arises. Moreover, mine operators should keep complete records of safety-related incidents and complaints in the event an MSHA investigation occurs.

For more information on this topic, please contact the authors, your Seyfarth attorney, or a member of the Firm’s Workplace Safety and Health (OSHA/MSHA) TeamWorkplace Counseling & Solutions Team, or the Workplace Policies and Handbooks Team.

 

 

By Karla Grossenbacher and Jaclyn W. Hamlin

Seyfarth Synopsis: The Fourth Circuit revived the retaliation case of a former city employee who was terminated one day after expressing an intent to file a formal grievance against her supervisor for race-based harassment, finding the plaintiff’s belief that she was being subjected to unlawful harassment to be reasonable – and noting that the city was on notice of objectionable behavior by the supervisor for some time.

When Felicia Struthers interviewed for an administrative assistant job with the city of Laurel, Maryland, three out of four of her interviewers were persuaded that she was the best and “most qualified” applicant, and she was given a job offer. Unfortunately, the interviewer who disagreed was to become her immediate supervisor. According to Struthers’ second-level supervisor, her direct supervisor had wanted to hire “someone of a different race.” Strothers v. City of Laurel, Maryland, No. 17-1237 (4th Cir. July 6, 2018). Despite this opposition, Struthers was extended a job offer.

From the inception of her employment, Struthers experienced difficulty with her immediate supervisor. Prior to beginning employment, Struthers negotiated a 9:05 a.m. starting time to enable her to put her children on the school bus. On her very first day, her supervisor marked her tardy, then overruled management’s agreement to allow Struthers to start five minutes after the office opened – demanding instead that Struthers report to work at 8:55 a.m., before the office was officially open for the day. The clashes continued, with Struthers’ supervisor insisting that Struthers ask permission before every bathroom break and report how long she spent in the bathroom; reprimanding her for alleged lack of teamwork; giving her a negative performance evaluation; and on one occasion, grabbing Struthers’ pants in an attempt to establish a dress code violation. Struthers believed that she was being harassed because of her race – a belief bolstered by her second-level supervisor’s admission that the immediate supervisor had wanted to hire someone of a different race, and by the complaints of former employees, African-American like Struthers, who had also felt harassed by the supervisor.

Struthers complained internally about her supervisor’s behavior on several occasions. Finally, she requested a grievance form, indicating that she planned to file a formal grievance the next day – but before she could do so, the City discharged her for “tardiness.” Struthers filed claims of race discrimination and retaliation; while the EEOC dismissed her discrimination claim, her retaliation claim advanced to federal litigation, where the City prevailed on summary judgment.

Struthers appealed, and in a decision published in July, the Fourth Circuit overturned the District Court’s grant of summary judgment to the City. The District Court had based its decision on a conclusion that Struthers could not possibly had a reasonable belief that the conduct of which she complained was based on her race. The Fourth Circuit disagreed, noting that the City itself had injected Struthers’ race into the conversation when, during one meeting, Struthers’ second-level supervisor had admitted that her immediate supervisor wanted to hire a white applicant for her job. Struthers’ reasonable belief was further bolstered, the Fourth Circuit noted, by other African-American former employees who had told her that they themselves felt harassed by the same supervisor, also because of their race, and by the fact that Struthers knew that her supervisor had only ever surveilled and reported policy violations upon other African-American employees.

The Court concluded that a reasonable jury could find that Struthers’ belief that she was being harassed because of her race was indeed reasonable. The Court further found that a reasonable jury could find that the supervisor’s behavior – including requiring Struthers, and Struthers alone, to report all time spent in the bathroom, and on one occasion lunging at and grabbing Struthers’ pants – to be sufficiently severe or pervasive to support a hostile work environment claim, and that the City’s action in firing Struthers the very day after she expressed intent to file a grievance was so temporally close to her protected activity as to create an inference of retaliatory animus. Based on these findings, the Fourth Circuit concluded that the District Court had erred in dismissing the case, and remanded it for further proceedings.

Takeaway for employers: The Court noted that the City was on notice, and had been for some time, of a rogue supervisor who had already been the subject of multiple complaints by African-American employees. If there is a lesson for employers to learn from this case – which is still pending – it is that no employer can afford to bury its head in the sand. Where there is smoke, there is at least the possibility of fire, and to safeguard the interests of the organization, employee complaints should be taken seriously and addressed promptly.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Michael L. DeMarino and Dawn R. Solowey

Seyfarth SynopsisTitle VII requires employers to make “reasonable accommodations” for an employee’s religious practices. But what is “reasonable” has been the subject of much debate and litigation.  The Tenth Circuit’s decision in Christmon v. B&B Airparts, Inc., No. 17-3209, 2018 WL 2344628, at *1 (10th Cir. May 24, 2018) is a good reminder that an accommodation may be reasonable — even if it is not the employee’s preference. What matters is that the employee is allowed to engage in his or her religious practice.

In Christmon v. B&B Airparts, Inc., an employee sued his former employer under Title VII, claiming that his employer failed to accommodate his religious practices by not allowing him to change his overtime shifts from Saturday to Sunday so that he could observe the Saturday Sabbath. On appeal, the Tenth Circuit held that allowing the employee to skip Saturday shifts was a reasonable accommodation and that the employer was not obligated to provide an opportunity for overtime on Sunday.

The Decision

B&B Airparts requires its employees to occasionally work overtime shifts on Saturdays. Id. Jerome Christmon, a Hebrew Israelite, regards Saturday as the Sabbath and consequently requested to work his overtime hours on Sunday. But rather than allow Christmon to work  his overtime hours on Sunday, B&B simply allowed him to skip mandatory Saturday overtime shifts without any disciplinary action.

Christmon sued B&B Airparts in the U.S. District Court for the District Court of Kansas, under Title VII of the Civil Rights Act of 1964, claiming discrimination for failure to accommodate religious practices. Specifically, Christmon claimed that B&B Airparts was required to provide him with overtime hours on Sunday.

The District Court disagreed and granted summary judgment in favor of B&B Airparts, holding that B&B Airparts provided a reasonable accommodation by allowing him to miss his Saturday shifts. On appeal, the Tenth Circuit affirmed.

According to the Tenth Circuit, the undisputed evidence showed that B&B Airparts allowed Christmon to skip mandatory Saturday shifts after he had explained his religious concern. “This relief,” the Tenth Circuit concluded, “constituted a reasonable accommodation . . . .” Id. at *2.

Rejecting Christmon’s arguments, the Tenth Circuit explained that a “reasonable accommodation does not necessarily spare an employee from any resulting cost” and “may be reasonable even though it is not the one that the employee prefers.” Id. Rather, “‘[a]ccomodate . . . means allowing the plaintiff to engage in [his] religious practice despite the employer’s normal rules to the contrary.’” Id. Hence, although Christmon requested an opportunity to make up his overtime hours on Sunday, the Tenth Circuit determined that “Title VII did not require B&B Airparts to offer Mr. Christmon’s preferred accommodation.” Id. at *3.

Important to this conclusion was the Supreme Court’s decision in Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986). There, the Supreme Court held that an unpaid leave that allows an individual to observe religious holy days is a reasonable accommodation because it avoids the “conflict between employment requirements and religious practices.” Id.

At the end of the day, B&B ‘s accommodation was reasonable because it “allowed Mr. Christmon to avoid the conflict with his religious beliefs even if he lost the opportunity for overtime.” Id.

Implication For Employers

The Tenth Circuit’s decision is a good reminder for employers of the parameters of their obligation under Title VII to provide a reasonable accommodation for religious practices. A reasonable accommodation does not necessarily have to be the employee’s first choice. Nor does it have to be free from any resulting cost to the employee.  A reasonable accommodation, however, should effectively avoid the conflict between the employee’s religious practice and the employer’s requirements.

Of course, the first step in providing an accommodation is recognizing when there is a conflict between an employer’s requirements and an employee’s religious practice. Employers should therefore be sure to provide a mechanism for their employees to express concerns over perceived conflicts or otherwise request a religious accommodation.

For more information on this topic, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis: In this case a home-care nurse complained about the quality of care her patient received from the patient’s family members. Subsequent review and inspections by the company found some “serious problems” with the employee’s care-giving — and ultimately led to her termination. The Sixth Circuit Court agreed with the employer’s analysis. Blair v. Maxim Healthcare Services, Inc., No. 17-5025 (6th Cir. Oct. 6, 2017).

The plaintiff, Teresa Blair, was a home-care nurse that provided medical care for a patient with cerebral palsy and mental retardation. Over the course of several years the plaintiff, as directed by her employer, reported numerous incidences of neglect of the home-care patient at the hands of the patient’s family. Blair complained that the patient’s mother was not mentally capable of caring for him.

Blair, though, exhibited her own employment issues on the job. According to the Court, Blair had shown up at a patient’s house when not scheduled to work; made errors on medical charts; failed to take a patient’s vital signs for the doctor; falsely reported that the doctor had ordered a patient quarantined and that Blair alone should care for the patient while he had the flu; and attempted to change her schedule without her supervisor’s permission.

Subsequently, Blair reported upon arriving at her home-care position, finding her patient in distress. After alerting authorities, Blair was told to call an ambulance. After arriving at the hospital, a doctor evaluated the patient and noted “normal vital signs and no clinical signs of illness or distress.” Blair’s supervisor told her to turn her patient’s care over to the hospital staff. Blair however continued to shadow hospital staff until that evening. The patient was released from the hospital the next day.

About a week later, the employer gave Blair a written warning indicating that she had failed to follow her supervisor’s instructions to let the hospital staff take over, among other things.

Then, after Blair’s patient’s release from the hospital, one of Blair’s supervisors and a registered nurse, visited the patient’s home and noted some “serious problems” with Blair’s care-giving. For instance, Blair had not placed a pulse-oximeter probe on the patient’s finger, which was a problem because “the doctor (and Blair’s supervisor) had ordered continuous use of the probe to measure [the patient’s] blood-oxygen saturation level.” Blair had also failed to place an ambu-bag at the patient’s bedside. “This device was supposed to be within arm’s reach so that, in an emergency, Blair could use it to help [the patient] breathe. The device was found in a closet on an upper shelf and the closet door was blocked by a large piece of equipment. “A month before, Blair had been reprimanded for the same mistake.” Blair was fired the next day.

Blair then sued the employer in Kentucky state court, asserting wrongful-discharge claims. The employer then removed the case to federal court under diversity jurisdiction. Blair amended her claims to assert that the healthcare employer had discharged her in violation of Kentucky’s Patient Safety Act. The district court granted summary judgment to the employer on all claims.

In discussion of the law in this case, the Court explained that the Kentucky Patient Safety Act requires that any “employee of a health care facility . . . who knows or has reasonable cause to believe that the quality of care of a patient, patient safety, or the health care facility’s or service’s safety is in jeopardy” to “make an oral or written report of the problem to the health care facility[.]” Citing Ky. Rev. Stat. § 216B.165(1). In addition, the Act also prohibits any “health care facility or service” from retaliating “against any agent or employee who in good faith reports[.]” Citing Ky. Rev. Stat. § 216B.165(3). To prevail on her claim under the Act, Blair needed to show (i) that she engaged in a protected activity under the Act, (ii) that the employer knew about her protected activity, and (iii) that the employer took an adverse employment action against her because of it.

Blair contended that a jury could find causation because in her view the employer falsely accused her of interfering with the Kentucky Protective Services investigation of the December 2013 incident that sent her patient to the hospital. The Court, though, concluded that Blair failed to present a genuine issue as to causation. “The 18 days between her complaint and termination are not enough to allow a reasonable jury to find that one caused the other.”

For employers, and especially healthcare employers, this case illuminates the need for constant vigilance in the company’s oversight of its staff, and the preparation of documentation relating to employee supervision and discipline.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Health Care Practice Group or the Workplace Policies and Handbooks Team.

 

By Christopher Im and Sharisse R. Deal

Seyfarth Synopsis: Private employers can face competing obligations when it comes to responding to employees’ expressive conduct. Employee rights may collide with employer obligations to maintain a safe and harassment-free work environment, not to mention the employer’s interest in maintaining productivity and avoiding adverse publicity. Here are some guiding principles.

“How’s work?” A common question, whether at a party, catching up with an old friend, or just as small talk. It is also a common topic of online conversation. It would be nice if work-related remarks were always positive, agreeable and civil, but, of course, they are not. The reality is that employees sometimes say offensive things about work, their employer, their co-workers, or a co-worker’s cherished political hero or ideals.

And what of the employee who attends a political rally—either as a protester or counter-protester—or does not attend, but merely posts or tweets an incendiary opinion about the event?

What is an employer’s recourse when such communications cross the line? Where is the line?

As a general rule, unless the employee is using company-owned equipment or systems, employers cannot police their employees’ expression. Various California statutes protect employees’ rights to engage in lawful, off-duty conduct (Lab. Code §§ 96, 98.6) and political activity (Lab. Code §§ 1102, 1103), to say nothing of the California constitutional right to privacy, which applies in both the public and private sectors. Meanwhile, the federal National Labor Relations Act prohibits employers from chilling employee participation in concerted activity with respect to their terms and conditions of employment.

Generally, as long as controversial comments and ideas are lawfully expressed, do not implicate a protected class (such as race, religion, gender), do not name or implicate the employer, and remain out of the workplace, they are none of the employer’s business.

The trouble starts when a controversial comment is not lawfully expressed, implicates a protected class, implicates the employer, or has a deleterious effect in the workplace. Competing against the employee rights set out above are the employer’s duties to prevent and correct harassment in the workplace and to provide a safe workplace. Failure to do so can lead to hostile work environment or retaliation claims, regardless of whether the harassment comes from a supervisor or a co-worker.

Not all offensive remarks will be cause for concern: to get from “how’s work?” to a hostile work environment claim, an employee’s comments must relate to a protected status and be sufficiently severe or pervasive to alter working conditions. But in todays’ highly charged political environment, many people look to their places of employment as the last bastion of civility and stability. Discussion of events, images, symbols, or social media memes concerning topics as varied as immigration, same-sex marriage, transgender rights, and the history of American slavery and its aftermath may, depending on the communication’s content and context, be freighted with racial or gender connotations.

For most people, perception is reality. Remarks or conduct that several years ago would not have raised an eyebrow may now lead to multiple disgruntled people in the HR office, seeking action. And while California employees are guaranteed privacy, the privacy right does not prevent an appropriate reaction from an employer in response to a public online posting, text message, or comment. As someone once said: “Freedom of speech does not mean freedom from consequences.”

There is no magic bullet to making sure your employees play nice. But there are several steps you can take to ensure that they know what will and will not be tolerated. You can set employee expectations by implementing or reminding them of your anti-harassment and anti-retaliation policy, your code of conduct, your “zero tolerance” policy regarding violence, your social media policy, and your rules concerning use of company internet and other electronic communication systems. We recommend that employers articulate a strong business purpose to justify any occasions when they must intrude on an employee’s privacy, and never intrude more than is necessary to serve that business purpose.

Interpretation of the laws around employee workplace rights and the intersection with employer duties to comply with anti-harassment and OSHA laws are constantly evolving, particularly with the ever-increasing use of social media. To help stay current, don’t hesitate to contact your favorite Seyfarth attorney.

 

By Erin Dougherty Foley, Ashley K. Laken, and Craig B. Simonsen

Seyfarth Synopsis: According to the EEOC in this just filed lawsuit, a home care services provider in North Carolina violated federal disability rights law when it rejected telecommuting requests from an employee whose asthma and COPD “made her sensitive to workplace smells.” 

Earlier this month, the Equal Employment Opportunity Commission filed suit against a home healthcare company to “correct unlawful employment practices on the basis of disability.”  In the complaint, filed in EEOC v. Advanced Home Care, Inc., No. 1:17-cv-00646 (M.D.N.C. July 12, 2017), the EEOC alleges that Advanced Home Care, Inc. refused to provide Elizabeth Pennell, a “qualified individual with a disability,” with a reasonable accommodation, and discharged her in violation of the Americans with Disabilities Act.

According to the EEOC, Pennell was a case manager for patients requiring home services. As a case manager, Pennell was required to spend part of her day on telephone calls. In 2015, Pennell began to experience frequent asthma attacks and flare-ups of bronchitis.  After collapsing at work after a heavy bout of coughing, she was hospitalized where she was diagnosed with chronic bronchitis and COPD.

The complaint alleges that as a “consequence of asthma, bronchitis, and COPD, Pennell experiences wheezing, severe bouts of coughing, and asthma attacks,” and that Pennell’s physical impairments “substantially limit her in the major life activity of breathing. . . and constitute a disability under the ADA.” The EEOC alleges that scents and odors aggravate Pennell’s COPD and asthma, that she worked in a cubicle in close proximity to hundreds of other employees, and that she was therefore subjected to these types of irritants, including the smell of smoke on other employees’ clothes.

The EEOC claims that Pennell’s supervisor “ignored Pennell’s repeated requests to telework” and that teleworking would have allowed Pennell to be away from actual and potential respiratory irritants. The EEOC also claims that Pennell’s supervisor told her she would terminated if she could not return to work without restrictions.  The complaint alleges that Pennell could have performed the essential functions of her position with the reasonable accommodation of telework.  The EEOC also claims that as a consequence of Pennell’s disability, she had difficulty talking continuously for extended periods of time, and if she had been allowed to telework, she would not have been required to take inbound calls and therefore would have spent less time on the phone.

Employers should note that this scenario is somewhat unusual but that telecommuting has been an issue on the EEOC’s radar for the last several months (i.e., is working from home a reasonable accommodation?). Right how we only have the EEOC’s allegations and no response from the employer.  (We’ll be keeping an eye on this litigation to see how it plays out.)  However, the critical take away (regardless of how the employer responded) is the proper handling and response to employee accommodation requests.  Company policies and procedures as well as internal manager training systems for these sorts of requests and responses should be well set out and diligently followed.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.