For the week of June 16, 2008
In what was characterized by the Court as "a close case," the 10th U.S. Circuit Court of Appeals has reversed a judgment in favor of Alaska Airlines on an issue of age discrimination, and remanded the case for trial. The case arose after an employee revealed his pending retirement plans during an interview for promotion, and then was denied the position. Maughan v. Alaska Airlines, Inc., 10th Cir., No. 07-6198, June 12, 2008.
Curtis Maughan worked as a Quality Control (QC) Supervisor/Representative, responsible for overseeing the maintenance work performed by vendors on the Airlines’ planes. In 2004, Maughan applied for a promotion, and was interviewed for the position. During that interview, Maughan was asked about his "five-year goals." He responded that he planned to retire within that time, as he would be eligible for retirement with the next 18 months. He was not selected for the position. When Maughan subsequently asked his supervisor why he was not promoted, the supervisor told him that "word on the street" was that Maughan did not get the position because he told the interview panel that he planned to retire. One day after that conversation, Maughan received a performance evaluation that was critical of his work performance. Within a month, the supervisor recommended Maughan’s termination.
Although Maughan contacted the company’s human resources manager and reported that he believed that he had been discriminated against and harassed because of his age, Alaska never conducted an investigation into that complaint. Instead, Maughan was offered a severance package in exchange for a release, an offer which he refused. Instead, Maughan filed suit under the Age Discrimination in Employment Act (ADEA). The Airlines moved for summary judgment. The district court granted that motion, finding that Maughan failed to offer evidence that Alaska’s proffered reason for the termination – Maughan’s poor performance – was simply a pretext for discrimination.
Under the now-familiar McDonnell Douglas burden-shifting analysis, once a plaintiff has shown a prima facie case of discrimination, the employer must provide evidence of a legitimate business reason for its actions. In order to carry the ultimate burden of proof, the plaintiff then must show that the proffered reason was simply a pretext for discrimination. Such pretext can be shown by inconsistencies or contradictions in the employer’s reasons, including actions contrary to a written company policy.
In this unpublished opinion, the Tenth Circuit reversed the lower court’s decision, holding that while it was a close case, Maughan put forth enough evidence to undermine the company’s proffered reason for his termination. Maughan was able to show that his March 2005 performance review criticized some of the same characteristics that were praised in a December 2004 review; he showed that an issue included in the March review had actually occurred much earlier in 2004 without prior reprimand or comment; and he presented evidence that the company acted contrary to a written policy when it failed to investigate his complaints of age discrimination.
While Maughan’s evidence of pretext was not "abundant," it was not refuted by the Airlines, and therefore was sufficient to allow the case to go to a fact finder/jury for decision. While many courts have recognized that an employer may make reasonable inquiries into the retirement plans of its employees, this inquiry seemed to have led inexorably to the employee’s termination. In this instance, the company’s failure to follow its written policies was a critical factor in the Court’s decision. Had an investigation been done pursuant to the existing policy, the Airline may have been able to more fully document the issues related to Maughan’s termination, and may then have been able to provide the "uncontroverted independent evidence" entitling it to judgment as a matter of law in this case.
Tuesday, June 17, 2008
Wednesday, June 11, 2008
Issue: FMLA does not support retaliation claim by employee who did not actively participate in spouse’s previous FMLA lawsuit
For the week of June 9, 2008
The Family and Medical Leave Act allows employees to take reasonable leave for certain reasons spelled out in that Act. The FMLA includes prescriptive provisions – which create a series of substantive rights, consisting primarily of 12 weeks of unpaid leave – along with proscriptive provisions, which bar employers from penalizing employees and other individuals from exercising rights granted under the FMLA. The 5th U.S. Circuit Court of Appeals recently addressed the issue of whether the anti-retaliation provisions of the FMLA automatically protect the co-worker/spouse of an employee from retaliation, and held that it does not. Elsensohn v. St. Tammany Parish Sheriff’s Office, 5th Cir., No. 07-30693, June 6, 2008.
Lawrence Elsensohn is employed by the St. Tammany Parish Sheriff’s Office as a law enforcement officer, in the rank of sergeant. His wife, Wendelle, also had been employed with that Office, but left her employment after bringing – and settling – an FMLA complaint against that employer. According to Elsensohn, he had not been involved in his wife’s FMLA claim, other than to provide "moral support" to her. Although Elsensohn would have been a witness on his wife’s behalf, he did not have to testify, because the case settled in or around October 2004.
In early 2005, Elsensohn alleged that he was being harassed by the Warden of the St. Tammany Parish Jail, and that the harassment was related to his wife’s FMLA claim. After he reported to Internal Affairs about the harassment, Elsensohn was assured that there would be no further problem. In fact, during the following months, Elsensohn received excellent performance reviews. However, when Elsensohn applied for a number of promotions in 2006, he was denied in each instance. In response to his queries to his supervisor, Elsensohn was told that he would not be receiving a promotion of any kind, and that his chances for advancement were "closed off." Shortly thereafter, Elsensohn was involuntarily placed on a night shift, losing his holiday and overtime pay opportunities. In that position, he also was precluded from seeking secondary and supplemental employment.
In December 2006, Elsensohn filed a lawsuit against the Sheriff’s Office and two individual defendants, alleging that the defendants’ actions interfered with, restrained, and denied his rights under the FMLA. He alleged that the actions were taken as a result of his association with his wife, who had opposed the defendants’ unlawful practices related to her FMLA rights. Specifically, Elsensohn relied on a section of the FMLA that makes it unlawful for an employer to discriminate against an individual because that person "has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right" provided under the FMLA, or has "testified, or is about to testify" in any legal proceeding under the Act.
The defendants moved to dismiss the claims, arguing that Elsensohn’s action was a purely derivative claim, which is not permitted under the FMLA. Further, the defendants argued that Elsensohn did not testify for his wife, nor was "about to testify" on her behalf, since her claim had been settled. The district court agreed with that argument and dismissed Elsensohn’s FMLA claim. The Fifth Circuit upheld that dismissal of the claim, stating that Elsensohn did not satisfy the literal criteria set forth under the statute. First, he had not provided information of any kind in his wife’s FMLA action; in fact, he averred that he had "attempted not to involve himself in his wife’s FMLA claim." Similarly, he never had testified in any proceeding related to his wife’s claim, and was not "about to testify," since her suit was settled prior to the actions of which Elsensohn ultimately complained.
This case may have been decided on a hyper-technical interpretation of the FMLA, but it provides a reminder to employers that the FMLA prohibits retaliation against those who assist others in FMLA claims through evidence and testimony. While courts typically avoid broadening the protections of anti-retaliation statutes through judicial interpretation, employers should recognize that these claims are decided on a case-by-case basis. Had there been evidence of Elsensohn’s participation in his wife’s FMLA legal action, the case may have gone very differently. A careful review of the factual issues associated with retaliation claims is critical prior to taking any adverse employment action against an individual associated with someone who has brought an FMLA claim against the employer.
The Family and Medical Leave Act allows employees to take reasonable leave for certain reasons spelled out in that Act. The FMLA includes prescriptive provisions – which create a series of substantive rights, consisting primarily of 12 weeks of unpaid leave – along with proscriptive provisions, which bar employers from penalizing employees and other individuals from exercising rights granted under the FMLA. The 5th U.S. Circuit Court of Appeals recently addressed the issue of whether the anti-retaliation provisions of the FMLA automatically protect the co-worker/spouse of an employee from retaliation, and held that it does not. Elsensohn v. St. Tammany Parish Sheriff’s Office, 5th Cir., No. 07-30693, June 6, 2008.
Lawrence Elsensohn is employed by the St. Tammany Parish Sheriff’s Office as a law enforcement officer, in the rank of sergeant. His wife, Wendelle, also had been employed with that Office, but left her employment after bringing – and settling – an FMLA complaint against that employer. According to Elsensohn, he had not been involved in his wife’s FMLA claim, other than to provide "moral support" to her. Although Elsensohn would have been a witness on his wife’s behalf, he did not have to testify, because the case settled in or around October 2004.
In early 2005, Elsensohn alleged that he was being harassed by the Warden of the St. Tammany Parish Jail, and that the harassment was related to his wife’s FMLA claim. After he reported to Internal Affairs about the harassment, Elsensohn was assured that there would be no further problem. In fact, during the following months, Elsensohn received excellent performance reviews. However, when Elsensohn applied for a number of promotions in 2006, he was denied in each instance. In response to his queries to his supervisor, Elsensohn was told that he would not be receiving a promotion of any kind, and that his chances for advancement were "closed off." Shortly thereafter, Elsensohn was involuntarily placed on a night shift, losing his holiday and overtime pay opportunities. In that position, he also was precluded from seeking secondary and supplemental employment.
In December 2006, Elsensohn filed a lawsuit against the Sheriff’s Office and two individual defendants, alleging that the defendants’ actions interfered with, restrained, and denied his rights under the FMLA. He alleged that the actions were taken as a result of his association with his wife, who had opposed the defendants’ unlawful practices related to her FMLA rights. Specifically, Elsensohn relied on a section of the FMLA that makes it unlawful for an employer to discriminate against an individual because that person "has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right" provided under the FMLA, or has "testified, or is about to testify" in any legal proceeding under the Act.
The defendants moved to dismiss the claims, arguing that Elsensohn’s action was a purely derivative claim, which is not permitted under the FMLA. Further, the defendants argued that Elsensohn did not testify for his wife, nor was "about to testify" on her behalf, since her claim had been settled. The district court agreed with that argument and dismissed Elsensohn’s FMLA claim. The Fifth Circuit upheld that dismissal of the claim, stating that Elsensohn did not satisfy the literal criteria set forth under the statute. First, he had not provided information of any kind in his wife’s FMLA action; in fact, he averred that he had "attempted not to involve himself in his wife’s FMLA claim." Similarly, he never had testified in any proceeding related to his wife’s claim, and was not "about to testify," since her suit was settled prior to the actions of which Elsensohn ultimately complained.
This case may have been decided on a hyper-technical interpretation of the FMLA, but it provides a reminder to employers that the FMLA prohibits retaliation against those who assist others in FMLA claims through evidence and testimony. While courts typically avoid broadening the protections of anti-retaliation statutes through judicial interpretation, employers should recognize that these claims are decided on a case-by-case basis. Had there been evidence of Elsensohn’s participation in his wife’s FMLA legal action, the case may have gone very differently. A careful review of the factual issues associated with retaliation claims is critical prior to taking any adverse employment action against an individual associated with someone who has brought an FMLA claim against the employer.
Issue: Prohibition on union buttons may violate National Labor Relations Act
For the week of May 26, 2008
The 9th U.S. Circuit Court of Appeals has overturned a decision by the National Labor Relations Board related to a hospital’s prohibition on union buttons. According to the Ninth Circuit, prohibiting the buttons violated of nurse/employees’ rights under the National Labor Relations Act. Washington State Nurses Ass’n v. NLRB, 9th Cir., No. 06-74917, May 20, 2008.
Washington State Nurses Association (WSNA) is a union representing approximately 1200 registered nurses at Sacred Heart Medical Center, an acute care hospital in Spokane, Washington. In the fall of 2003, WNSA and Sacred Heart began negotiations for a new collective bargaining agreement, as the then-existing agreement was to expire in January 2004. Those negotiations continued well into 2004, extending past the CBA’s expiration date.
During the period of negotiations, nurses at Sacred Heart wore buttons that included a number of different union-related messages, specifically including one that said: "RNs Demand Safe Staffing." On February 27, the hospital issued a memo that banned the nurses from wearing that particular button in any areas where the nurses "may encounter patients or family members." The memo stated the reason for the prohibition as "patients and family members may fear that the Medical Center is not able to provide adequate care." No nurse was disciplined for wearing that button.
Within a week after the memo, WSNA filed an unfair labor practice charge with the NLRB. After a hearing, an Administrative Law Judge found that the hospital had engaged in an unfair practice by prohibiting the button. A three-member panel of the Board subsequently reversed that decision, finding that "special circumstances" supported the prohibition, since the button’s message could "disturb patients."
A federal appellate court can overturn the findings of an agency such as the NLRB when those findings are not supported by substantial evidence on the record considered as a whole. Applying that rationale, the Ninth Circuit overturned the Board’s decision, with direction to reinstate the ALJ’s original holding in favor of the WSNA. The Court found that the Board has long recognized that union members have a protected right to wear union insignia in the workplace and, in fact, that restrictions on the wearing of union insignia in immediate patient care areas are presumptively invalid, unless special circumstances exist to preclude those insignias. The employer bears the burden of proving such special circumstances, including, presumably, any adverse impact on patient care.
The Ninth Circuit held that there was no evidence in the record to support the hospital’s assertion of "special circumstances," as there was no actual testimony that any patients had been disturbed or upset by the message on the buttons. Although the Board concluded that the button’s "inherently disturb[ing]" message was enough to support a finding of special circumstances, that approach was contrary to the basic principle – specifically cited by the Ninth Circuit – that conjecture is no substitute for evidence. Without more, the hospital did not carry its burden, and the Board’s decision could not stand.
The message to employers is clear: special circumstances justifying a restriction on union insignia must be established by substantial evidence in the record. Speculation or conjecture related to the effect of a union-related message or insignia will not be sufficient to defend against a claim of unfair labor practices. Witness testimony, affidavits by management or HR personnel, and documentation of complaints are evidence of the type that can effectively support such a defense.
The 9th U.S. Circuit Court of Appeals has overturned a decision by the National Labor Relations Board related to a hospital’s prohibition on union buttons. According to the Ninth Circuit, prohibiting the buttons violated of nurse/employees’ rights under the National Labor Relations Act. Washington State Nurses Ass’n v. NLRB, 9th Cir., No. 06-74917, May 20, 2008.
Washington State Nurses Association (WSNA) is a union representing approximately 1200 registered nurses at Sacred Heart Medical Center, an acute care hospital in Spokane, Washington. In the fall of 2003, WNSA and Sacred Heart began negotiations for a new collective bargaining agreement, as the then-existing agreement was to expire in January 2004. Those negotiations continued well into 2004, extending past the CBA’s expiration date.
During the period of negotiations, nurses at Sacred Heart wore buttons that included a number of different union-related messages, specifically including one that said: "RNs Demand Safe Staffing." On February 27, the hospital issued a memo that banned the nurses from wearing that particular button in any areas where the nurses "may encounter patients or family members." The memo stated the reason for the prohibition as "patients and family members may fear that the Medical Center is not able to provide adequate care." No nurse was disciplined for wearing that button.
Within a week after the memo, WSNA filed an unfair labor practice charge with the NLRB. After a hearing, an Administrative Law Judge found that the hospital had engaged in an unfair practice by prohibiting the button. A three-member panel of the Board subsequently reversed that decision, finding that "special circumstances" supported the prohibition, since the button’s message could "disturb patients."
A federal appellate court can overturn the findings of an agency such as the NLRB when those findings are not supported by substantial evidence on the record considered as a whole. Applying that rationale, the Ninth Circuit overturned the Board’s decision, with direction to reinstate the ALJ’s original holding in favor of the WSNA. The Court found that the Board has long recognized that union members have a protected right to wear union insignia in the workplace and, in fact, that restrictions on the wearing of union insignia in immediate patient care areas are presumptively invalid, unless special circumstances exist to preclude those insignias. The employer bears the burden of proving such special circumstances, including, presumably, any adverse impact on patient care.
The Ninth Circuit held that there was no evidence in the record to support the hospital’s assertion of "special circumstances," as there was no actual testimony that any patients had been disturbed or upset by the message on the buttons. Although the Board concluded that the button’s "inherently disturb[ing]" message was enough to support a finding of special circumstances, that approach was contrary to the basic principle – specifically cited by the Ninth Circuit – that conjecture is no substitute for evidence. Without more, the hospital did not carry its burden, and the Board’s decision could not stand.
The message to employers is clear: special circumstances justifying a restriction on union insignia must be established by substantial evidence in the record. Speculation or conjecture related to the effect of a union-related message or insignia will not be sufficient to defend against a claim of unfair labor practices. Witness testimony, affidavits by management or HR personnel, and documentation of complaints are evidence of the type that can effectively support such a defense.
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