Monday, April 14, 2014

Court Holds Placing Pregnant Employee on Paid Leave Not a "Per Se Reasonable Accommodation"

A federal district court in California granted in part and denied in part a defendant-employer's Rule 12(b)(6) motion to dismiss a plaintiff's claims, primarily based on pregnancy discrimination, holding that their placing the plaintiff, who was pregnant and merely had lifting restrictions, on total disability leave was not a reasonable accommodation.

The facts of the case are simple.  The plaintiff, Azucena Tapia, became pregnant and when the pregnancy advanced, she informed the employer, Artistree, Inc. and Michaels, Inc., that she needed accommodation, including no heavy lifting or pushing and a 5-10 minute restroom break every 3 hours.  Tapia gave the employer a doctor's note in support of these accommodations, however, the employer allegedly failed to engage in a good faith interactive process to determine whether an appropriate accommodation would be possible, telling Tapia that they would not accommodate her restrictions or attempt to find a position where she could continue to work for the duration of her pregnancy.  Instead, they told her she should have her doctor place her on total disability, which she did.

Plaintiff claimed she could have worked throughout her pregnancy had defendants accommodated her restrictions as originally recommended.  Tapia did not work the remainder of her pregnancy, gave birth, and while she was in the hospital recovering, an HR rep called Tapia and told her that she could lose her job if she did not return to work that same day.  Defendants allegedly did not offer her an accommodation when Tapia explained that she would not be able to return to work immediately due to her C-section.  Tapia was terminated 13 days later with defendants citing  job abandonment. 

In denying defendants' motion to dismiss plaintiff's pregnancy discrimination claims, the court stated that, "it is not clear that Plaintiff was offered a 'reasonable accommodation.'  It is true that 'in appropriate circumstances, reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment.'"  However, the court stated, "paid leave is not a 'per se reasonable accommodation," noting that this employer offered only one possibility to the Plaintiff:  take total disability leave for the duration of her pregnancy.  The court then noted that the employer never sought to engage in the "interactive process" required, nor attempted to determine whether Plaintiff's disability could have been accommodated in another way. 

The court also noted precedent which held leave is a reasonable accommodation when it is likely the employee will be able to return to work and stated that this employer should have known that the Plaintiff would be giving birth around August 2012 and would need additional leave following the birth.  Thus, the court held that granting the Plaintiff leave for the duration of her pregnancy only to require her to return to work within two weeks of giving birth via C-section does not appear to be a reasonable accommodation.  Therefore, the employer's motion to dismiss plaintiff's claims regarding pregnancy discrimination was denied.

The case is Azucena Tapia v. Artistree, Inc., et al., Case No. CV 14-01381 DDP

Thursday, April 10, 2014

Wisconsin Social Media Protection Act

Wisconsin Governor Scott Walker signed the Wisconsin Social Media Protection Act (2013 Wisconsin Act 208) into law this past week, giving employees in Wisconsin more privacy in the workplace, though the legislation provides several exceptions for employers. 
The new law prohibits employers from doing the following:
1. Request or require an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account.

2. Discharge or otherwise discriminate against an employee for exercising the right under subd. 1. to refuse to disclose access information for, grant access to, or allow observation of the employee’s personal Internet account, opposing a practice prohibited under subd. 1., filing a complaint or attempting to enforce any right under subd. 1., or testifying or assisting in any action or proceeding to enforce any right under subd. 1.
3. Refuse to hire an applicant for employment because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.
However, as stated above, the law does provide for several exceptions which does allow an employer to obtain access to an employee's social media or terminate an employee's employment for failing to provide access.  Those exceptions are in the following situations:
1. Requesting or requiring an employee to disclose access information to the employer in order for the employer to gain access to or operate an electronic communications device supplied or paid for in whole or in part by the employer or in order for the employer to gain access to an account or service provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes.

2. Discharging or disciplining an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization.

3. Subject to this subdivision, conducting an investigation or requiring an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account, if the employer has reasonable cause to believe that such a transfer has occurred, or of any other alleged employment−related misconduct, violation of the law, or violation of the employer’s work rules as specified in an employee handbook, if the employer has reasonable cause to believe that activity on the employee’s personal Internet account relating to that misconduct or violation has occurred. In conducting an investigation or requiring an employee to cooperate in an investigation under this subdivision, an employer may require an employee to grant access to or allow observation of the employee’s personal Internet account, but may not require the employee to disclose access information for that account.
4. Restricting or prohibiting an employee’s access to certain Internet sites while using an electronic communications device supplied or paid for in whole or in part by the employer or while using the employer’s network or other resources.
5. Complying with a duty to screen applicants for employment prior to hiring or a duty to monitor or retain employee communications that is established under state or federal laws, rules, or regulations or the rules of a self
regulatory organization, as defined in 15 USC 78c (a)(26).
6. Viewing, accessing, or using information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain.

7. Requesting or requiring an employee to disclose the employee’s personal electronic mail address.
Then, interestingly enough, the legislation states that this law does not apply to those in the financial services industry who use the account or device to conduct business that is subject to regulation and it also does not apply to situations where the employer "inadvertently" (yes, the statute uses the term "inadvertently") accesses an employee's personal account through a system the employer pays for to monitor the network, " so long as the employer does not use that access information to access the employee's personal Internet account." 
The law also provides protections for students and prospective students in the educational realm from having to disclose the same, as well as tenants in the landlord-tenant realm--both of which have exceptions as well. 
Enforcement will be handled by the Equal Rights Division ("ERD"), which is the Wisconsin administrative agency typically associated with enforcing the Wisconsin Fair Employment Act ("WFEA").  However, the penalties for a violation found under this Act are rather weak as a person found to have violated this law "may be required to forfeit not more than $1,000."  The word "may" is emphasized because it's not mandatory (the word "shall" is used to require such a fine).  If an employee is discharged, or otherwise discriminated against in violation of this law, or an applicant not hired in violation of the law or a student is expelled, suspended or otherwise penalized in violation of this law, a complaint may be filed and it will be handled like a discrimination complaint with the ERD with the remedy being the same remedy afforded in discrimination cases:  make-whole.  The same for violations in the landlord-tenant relationship if a violation is found.
As is the case with any new law, it'll be interesting to see this law enforced and litigated.  Either way, it is good to see Wisconsin keep ahead of trends in the law as technology always presents unique challenges for the law.  As of last year, only 13 states had similar laws with only another 25 states merely considering such legislation.

Tuesday, April 8, 2014

NLRB Holds Hospital's Rule Barring "Negativity" Violates NLRA

On April 1, 2014, the National Labor Relations Board ("NLRB") ruled that Hills and Dales General Hospital's work rules barring "negativity" and requiring employees to represent their employer "in the community in a positive and professional manner" violated the National Labor Relations Act as the three rules instituted by the hospital were overbroad and ambiguous, and could be interpreted by employees as prohibiting activity protected by Section 7 of the NLRA.

The rules implemented stated as follows:

We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

We will represent Hills and Dales in the community in a positive and professional manner in every opportunity.

We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

The hospital had enacted these three rules in response to low employee morale and in an attempt to change the Hospital's culture.  The remedy ordered in this case was that the Hospital had to rescind the unlawful rules. There were no claims that the Hospital had disciplined any employee for violating those rules. An employer who disciplines an employee for violating an unlawful rule will be ordered to, among other remedies, revoke such discipline and "make whole" the disciplined employee for the employee's economic losses.

11th Circuit Reverses Summary Judgment, Holds District Court Applied Incorrect Standards on Plaintiff's ADA and ADEA Claims

In a decision overturning a district court's grant of summary judgment of plaintiff Anthony Mazzeo's age discrimination and disability discrimination claims, the Court of Appeals for the Eleventh Circuit held that the plaintiff presented enough evidence to make out prima facie cases under the ADEA, ADAAA and the state-equivalent claims as the lower district court applied incorrect standards in each claim in dismissing the claims.

Mazzeo worked for defendant Color Resolution Int'l, LLC ("CRI") providing technical and sales service to its customers in Florida and southern Georgia.  In 2007, Mazzeo was diagnosed with a herniated disc and torn ligaments in his back.  The herniated disc caused Mazzeo pain along his lower back, which spread down his right leg and intermittently affected his ability to walk, sit, stand, bend, run, and lift objects weighing more than 10lbs.  Mazzeo discussed his condition with CRI in 2008 and then in early 2009, Mazzeo discussed his potentially needing back surgery which would require him to miss 2 weeks of work and have 3-to-6 months of restricted activity.  Mazzeo's supervisor, a Mr. Boyd, allegedly remarked that such a procedure would "likely require a longer recovery period of six to eight weeks." 

On February 25, 2009, Mazzeo informed Mr. Boyd that his back surgery had been scheduled for the second week of March.  The very next day, Mr. Boyd initiated Mazzeo's termination paperwork.  CRI cited declining sales revenue, over a period of years, as the reason for Mazzeo's termination.  Mazzeo was 46-years-old at the time of his termination.  A mere ten days after Mazzeo's termination, CRI offered a similar sales position to a 23-year-old recent college graduate, who began working for CRI on March 23, 2009.

In beginning their discussion on why they were reversing the lower court's grant of summary judgment, the 11th Circuit discussed the enactment of the ADA Amendments Act of 2008 (the "ADAAA") because Mazzeo's back problems, scheduled surgery and termination all occurred after when the ADAAA went into effect.  In granting summary judgment, the district court judge found that Mazzeo's physician's affidavit about Mazzeo's impairment was "insufficient, conclusory, and did not demonstrate that Mr. Mazzeo was disabled because it 'contain[ed] no detailed discussion as to whether [the] back condition affected any of [Mr. Mazzeo's] life activities."  The district court also cited a pre-ADAAA 11th Circuit opinion for the proposition that there could be "no disability based on physician's lifting restrictions where the plaintiff testified she could still work."  The district court also noted that the post-surgery work restrictions Mazzeo discussed with Mr. Boyd were no more than a "transitory impairment and, therefore, insufficient to establish that CRI regarded Mazzeo as disabled."  The 11th Circuit covered the ADAAA, the EEOC's guidance and concluded that Mazzeo's physician's affidavit more than showed that Mazzeo was able to make out a prima facie case on his ADA and state-equivalent claims.

In addressing Mazzeo's ADEA claim, the court noted that Mazzeo argued for the "standard version" of the ADEA prima facie case whereas CRI argued for the reduction-in-force ("RIF") standard.  The 11th Circuit stated that which version is adopted depends on Mazzeo's ability to present sufficient evidence that he was replaced by a younger individual.  The district court held that the new 23-year-old CRI employed did not replace Mazzeo and that Mazzeo was not replaced by anyone.  However, the Court held that a plaintiff may demonstrate that he was replaced by showing that, after his termination, some of his former responsibilities were delegated to another employee, in addition to that other employee's own responsibilities.  The Court then held that the district court erred in applying the RIF prima facie case standard as the evidence, viewed in light most favorable to Mazzeo, showed that his position was not eliminated and that he was replaced by the 23-year-old.  On remand, the 11th circuit directed the lower court to use the standard version of the ADEA prima facie case in evaluating CRI's motion for summary judgment.

The case is Anthony Mazzeo vs. Color Resolutions Int'l, LLC, Case No. 12-10250 (11th Cir., March 31, 2014)

Tuesday, April 1, 2014

2nd Circuit Holds an Employee's Inability to Sit for a Prolonged Period of Time May Constitute a Disability Under the ADA

Claiming that she was unable to sit for a prolonged period of time, plaintiff Carmen Parada sued her employer, Banco Industrial de Venezuela, C.A. ("BIV"), for discriminating and retaliation against her in violation of the Americans with Disabilities Act ("ADA") and the analogous State and local anti-discrimination statutes, inter alia.  The district court granted summary judgment in favor of BIV on all of Parada's federal claims and declined to exercise supplemental jurisdiction over her remaining claims, holding that Parada's inability to sit for a prolonged period of time did not constitute a "disability," as that term is defined under the ADA.  The Court of Appeals for the Second Circuit affirmed in part and vacated and remanded in part.

Six months into her job, Parada fell on a sidewalk and hurt her back severely enough that she could no longer sit for long periods of time and prompted her to stand for portions of the workday and to ice her neck and back.  After her doctors diagnosed Parada with lumbosacral and cervical sprains and several spinal disc herniations, Parada was directed to avoid sitting for prolonged periods.  Soon thereafter, Parada requested an ergonomic chair from BIV and even offered to pay for the chair, to no avail.  After repeatedly requesting the ergonomic chair, Parada took a leave of absence that had no specific return date.  For the next several months after, Parada and BIV disputed the extent of her disability, duration of leave, and BIV's repeated requests for additional medical documentation of her disability.  Once Parada's options for leave ran out, she was promptly terminated for failing to return to work.

In the Court's discussion, they noted that even prior to the 2008 amendments to the ADA, they recognized that an impairment "substantially limits" a major life activity if the impaired person is "[s]ignificantly restricted as to the condition, manner or duration under which [she] can perform" the activity.   They also noted that the EEOC listed "sitting" as a major life activity.  The Court then noted the district court's erroneous interpretation of precedent as having created a per se rule when it did not as the plaintiff's in the case cited had vague statements about their difficulties with "prolonged" sitting and that, without more, was not sufficient enough to support a finding of an ADA violation.  The Court noted the importance of the rejection of bright line tests and the need for fact-specific inquiries in ADA claims.

Thus, the lesson to be learned repeatedly in ADA cases is that they are highly fact-specific and employers ought to gather as much information as they can before deciding not to accommodate an employee and terminating them pursuant to attendance policies.  In this case, the 2nd Circuit found that Parada's case may qualify as a "disability" under the ADA (not to mention the likelihood that it may be held a "disability" under the ADAAA as well).  On remand, Parada's case will still come down to specific facts on the nature and extent of her inability to sit for a prolonged period, should it not settle and go that far.

The case is Parada v Banco Industrial de Venezuela, CA, 2ndCir, March 25, 2014, Lohier, R, Jr).

Tuesday, March 18, 2014

Federal Court Allows Disability Discrimination Claims to Go Forward Against Employer's Third-Party Benefits Administrator

In an interesting case out of the United States District Court in Maine, an employer's third-party benefits administrator's Rule 12(b)(6) motion to dismiss was denied by the Court, with the Court finding that they are liable for acts under the Americans with Disabilities Act (ADA) and Maine state law.

The case involves a Bank of America ("BOA") employee, Elizabeth Brown, who was sexually assaulted by a male co-worker at a party outside of work.  After the incident, Brown was fearful of returning to work and being around this co-worker and alleged she suffered from physical and psychological after-effects (panic attacks, difficulty sleeping, mood swings, and Post-Traumatic Stress Disorder (PTSD)) of the assault, thus, she approached BOA for an accommodation, which was refused, and lead to her termination after she missed enough days under BOA's attendance policy. 

When Brown returned to work, she immediately reported the incident to her manager, who then instructed Brown to take a week off, without pay, and that they would check-in with her after they spoke to the co-worker.  All the supervisor did was tell the co-worker to "stay away from Ms. Brown."  Brown then asked to be moved to a more distant cubicle in the common room in which they worked, and this request was denied because the supervisor believed the "stay away" instruction was sufficient.  Thus, Brown stated should would not return to work and would be applying for leave.  Brown then sought medical attention, which BOA requested records of.

BOA authorized Aetna to handle disability and "FMLA" claims.  Thus, Brown's doctor faxed an FMLA form to Aetna for medical leave and then Brown called Aetna to find out what documentation she needed to obtain short-term disability (STD) and FMLA leave.  Aetna later denied Brown's claim for STD and upheld its denial on appeal.  There was then some apparent communication issues between Brown and Aetna but BOA eventually communicated to Brown that she needed to provide more medical documentation to Aetna to justify continuing leave.  Thus, Brown had her doctor fax "BOA/Aetna" more documentation to substantiate her leave.  Aetna then stated they needed even more information, which Brown supplied and asked if that would be enough but Aenta never replied and told BOA that she was being placed on a "LOA-closed" status and directed BOA to take action within 3 days, which was her termination.

Aetna's Motion to Dismiss Under Rule 12(b)(6)

Brown subsequently filed suit against BOA and Aetna alleging disability discrimination and failure to accommodate claims under the ADA and state law.  Aetna filed it's Rule 12(b)(6) motion to dismiss claiming that they (1) are not a proper defendant in an ADA discrimination action and that (2) it cannot be held liable as BOA's agent for any civil wrongs committed by BOA as Brown's employer.

Under their first point, Aetna argues that they are not a "covered entity" under the ADA as a third-party benefit claim administrator, not an "employer," and that even if they are considered a "covered entity," they are shielded from liability under the safe harbor provisions of 42 U.S.C. sec. 12201(c).  "This is so, in Aetna's view, because 'Aetna administered the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance.'  Aetna argues that BOA's benefit plan was not 'subject to state laws that regulate insurance' because sec. 502(a) of ERISA completely preempts any such state law."  Aetna then further claims there is no agency relationsip because her causes of action arise out of her employment contract with BOA and that Aetna was not a party to any contract with Brown and therefore cannot be held liable for BOA's decisions regarding the conditions or decision to terminate Brown.

Court's Decision

The Court concluded that this issue came down to whether Aetna was constructively Brown's "employer" as an agent for BOA under the statutory definition in 42 U.S.C. sec. 12111(5)(A) which states an "employer" is, in relevant part:

"a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person."

The Court noted that both parties relied on Carparts, which is a 1994 case out of the 1st Circuit that described three potential theories under which a plan provider would be an "employer" under the ADA for purposes of Title I of the ADA.  After an in-depth discussion, the Court concluded that Aetna would only be liable as an "agent" of BOA if either: (1) the bulk of the "relevant indicia of employment" are within Aetna's control, (citing Lopez, 588 F.3d at 86-88; Camacho, 369 F.3d at 576-78); or (2) Aetna exercised control over one aspect of Brown's employment so significant that it was "intertwined" with BOA for the purposes of the ADA.  (citing Carparts, 37 F.3d at 17).

Because Brown relied on the theory that Aetna can be held liable as BOA's agent because Aetna acted on BOA's behalf in "providing and administering employee health benefits" and because she plead this is several areas of her Amended Complaint, this sufficiently established that Aetna might have been Brown's "employer" under the 1st Circuit's framework.  Because the issue is whether the pleadings were sufficient, this allowed Brown's claims to proceed against Aetna and the Court noted that, "the overriding lesson from Carparts is that the issue of who is an 'employer' will rarely be resolved on a motion to dismiss."  That is, Aetna will have to settle or shoot for dismissal at summary judgment to show they are not an employer combining the facts with the previously mentioned legal standards.

Next the Court dealt with Aetna's safe harbor argument.  Because Brown was not contesting Aetna's refusal of her STD leave but rather Aetna's ability to handle all types of leave, including leave required under the ADA, which is something typically dealt with by an employer, the Court decided this placed Aetna outside of the safe harbor provisions, yet another factual issue to be addressed at summary judgment.

The case is Brown v Bank of America, NA, March 7, 2014, Woodcock, J, Jr

Wednesday, March 12, 2014

New York Times Article on Employer Interrogations of Employees

The New York Times has an interesting and chilling article on the use of interrogations of employees by employers, which sometimes involve the use of highly-skilled interrogators and loss-prevention personnel.  Some of these interrogations have led to highly successful lawsuits.

Tuesday, March 11, 2014

Federal Court Allows Plaintiff's Stored Communications Act to Proceed Highlighting Role of Social Media in the Workplace

A federal district court in Northern Illinois, in a rather interesting case given the widespread use of Facebook and Twitter in the workplace by employees who are looking to advance both their careers with an employer as well as market themselves better, has denied an employer's motion for summary judgment on the plaintiff's Stored Communication Act (SCA) claim.  The case is super fact-specific and may not apply in every case, but highlights an important message to employers in the social media arena, which continues to present new and interesting issues every year.

The SCA provides a private cause of action for unauthorized, intentional access to communications held in electronic storage. See Shlahtichman v. 1-800 Contacts, Inc., 615 F.3d 794, 803 (7th Cir. 2010). Specifically, the SCA provision at issue states that whoever "(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility" and by doing so "obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system" violates the SCA. 18 U.S.C. § 2701(a); Shefts v. Petrakis, 758 F. Supp. 2d 620, 635 (C.D. Ill. 2010).

To make the intricate facts simple, essentially, the plaintiff, Jill E. Maremont, was an employee at an interior design company in Chicago whose salary included bonuses if certain goals were met.  In order to help meet these goals and obtain the bonuses, Maremont created a Facebook page for the company (currently, to set up a page for a company on Facebook, a personal account is needed which is where Maremont's privacy claims come in as the company needed to access her personal account to get to the company account), and also created a Twitter account.  However, the Twitter account Maremont created used her name in the handle (@jmaremont) and seemed clearly to contain content giving the account her identity (i.e., she tweeted in the first person) more so than the identity of the company (e.g., Starbucks' Twitter account is @starbucks and does not contain tweets in the first person so as to identify itself with one or more specific employees).  Also, it appears Maremont had "friend request" approved, allegedly by the defendant, and that Maremont created administrators so they could access the page without using her personal account.

Maremont was the victim of an unfortunate car accident that had her in the hospital and out of work for quite a while.  During this time, the employer gained access to the Facebook page and Twitter account Maremont created by using the passwords Maremont kept stored on her work computer, which was a part of the company's network.  There was dispute over this as Maremont contended she kept these passwords and account information in a locked folder so as to provide her with an expectation of privacy whereas the employer contends the information was provided to them.  While Maremont recovered, the employer posted content on the Facebook company page and on the Twitter account which is what led to the filing of the lawsuit alleging violations of the Lanham Act, the SCA, the Illinois Right of Publicity Act and common law right to privacy.

The federal court dismissed Maremont's Lanham Act claim because of issues with Maremont's damages allegations but allowed her SCA claim to proceed holding that there were genuine issues of material fact related to whether the employer had permission to access the social media accounts and because the plaintiff did not need to establish actual damages to proceed under the SCA. 

The case may very well settle but the ruling presents a problem for employers who wish to utilize social media accounts created by their employees without their express permission.

The case is Maremont v. Susan Fredman Design Group, Ltd., 2014 WL 812401 (N.D. Ill. March 3, 2014).

Tuesday, February 25, 2014

7th Circuit Upholds Summary Judgment Finding No Adverse Employment Action When Employee Merely Anticipated Transfer That Never Materialized

The Court of Appeals for the Seventh Circuit affirmed summary judgment against a former Cracker Barrel employee's claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), and 42 U.S.C. § 1981, finding that there was no adverse employment action when the employee quit her job in anticipation of a transfer to a different Cracker Barrel restaurant that never materialized.

The employee, a server named Ruth Andrews, served at a Cracker Barrel restaurant in Caseyville, Illinois, from 1999 until December 21, 2007. In 2002 she filed a discrimination claim against Cracker Barrel, which was settled in 2003.  The manager Andrews later alleged was discriminating against her, Tremayne “J.J.” Stewart, in response to the settlement amount, stated that Andrews better hope he never becomes the general manager because "one of the first things I'm going to do is fire you."  

Stewart was later promoted to GM in 2006 and again made a bonehead statement in stating that he was going to make the Caseyville restaurant the first all-black Cracker Barrel. He assigned more tables to black servers than to white servers. In Andrews’s view Stewart hired a disproportionately high percentage of black people when compared to the demographics of the local population.  Stewart then routinely made inappropriate statements about Andrews' age calling her things like  “old woman,” “old lady,” and “grandma.” He sometimes would grab a cane and impersonate an elderly woman when approaching Andrews. On a few occasions, Andrews complained that Stewart was unfairly reassigning large tables of male customers from older servers to younger ones; Stewart responded, “those guys don’t want to look at an old woman like you.” Once a customer left a tip for the “little old lady,” and Stewart gave it to Andrews, reasoning that she was “the only little old lady here.” For a period of time, Stewart also encouraged Andrews to stop working and instead watch her grandchildren.

Andrews apparently did all she could to complain in an effort to make this behavior and these comments stop but her complaints fell upon proverbial deaf ears and the problems never stopped.  Then, as is to be expected, relations between Andrews and Stewart worsened and Stewart encouraged Andrews to transfer to a different Cracker Barrel location but the nearest location was some 70 miles away.  

While it appeared that Andrews would transfer after requesting it, the facts showed Andrews and Stewart never took the formal steps necessary to make it complete despite the fact it was even announced that Andrews was transferring.  Andrews then never worked at either Cracker Barrel location again after taking paid vacation after she thought she was slated to transfer and begin work at the new location, but the company's internal system considered it a quit and sent her her last remaining pay after she went AWOL for more than 3 weeks.  Andrews had assumed she had been fired and then commenced her charge with the EEOC alleging sex, age and race discrimination.  

The 7th Circuit, in upholding summary judgment against Andrews' claims, held that she failed at the very threshold by not showing that she  "suffered a materially adverse employment action."  Having not plead or claimed a constructive discharge (this was admittedly done so intentionally by her counsel), the Court held that:  "The legal premise of Cracker Barrel’s argument is mani- festly sound: In the absence of circumstances suggesting a constructive discharge, an employee who voluntarily resigns cannot be said to have experienced an adverse employment action.   Cf. Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 717 (8th Cir. 2003) (noting that “a plaintiff cannot state an adverse employment action if he voluntarily resigned” unless the circumstances rise to the level of a constructive discharge)."

The Court did note some "inconsistencies" with respect to Cracker Barrel's record of Andrews' employment status while she was on vacation before she thought she was transferring but found these inconsistencies "immaterial" for purposes of summary judgment as they deemed it clear from the undisputed facts that she did in fact quit her job.

The lesson to be learned:  stay in contact with your employer!  Be clear on your employment status and be 100% clear on your transfer by finding out if it was approved and when you start.  Certainly do not stay out of contact with your employer for weeks and then "assume" you have been terminated as most employers have policies regarding voluntary separations and the laws seem clear that an employee terminates their own employment when they simple stop showing up and stay out of contact.

The case is Andrews v CBOCS West, Inc, (7thCir, February 14, 2014, Sykes, D).  

Monday, February 24, 2014

New York Times Writes About Public Sector Unions in Wisconsin

Steven Greenhouse of the New York Times had a very well-written and balanced article over the weekend on Wisconsin's public sector unions and the infamous Act 10, which is a controversial piece of legislation enacted by Governor Scott Walker that severely restricted the power of public-employee unions to bargain collectively.  Many people within and outside of Wisconsin are not aware of Wisconsin's progressive history in the labor movement which seems to be in reverse since Walker took office several years ago.  Definitely worth the read as we approach another election cycle.