Monday, December 22, 2014

Taking Leave Under FMLA Leads to Retaliatory Firing

Jeanne Wallner worked as an options trader for the financial brokerage firm Hilliard Lyons for 27 years.  Sometime between 2003-2007, Wallner began frequently arriving late to work.  Her boss spoke to her about this, but never documented it in her performance appraisals. In 2008, the boss discussed Wallner’s tardiness with his supervisor, who instructed the boss that if it continued, he should proceed in accordance with Hilliard's disciplinary policy.  

The boss did not take any disciplinary action against Wallner until 2009, when he gave her a written warning for "chronic tardiness and abuse of unscheduled absences." The “unscheduled absence” to which he referred happened earlier that month in connection with Wallner’s plan to go on vacation. Wallner had planned for a 7 pm flight, but the night before her planned departure, the airline rescheduled her departure for 7 am. So she called her boss and requested the next day off, and he granted her request.  

According to the boss, however, since Wallner called him after 5 pm to ask to take the next day off, that was an unscheduled same day request. 

Six months later, in June 2009, Wallner requested leave under the Family and Medical Leave Act in order to have knee-replacement surgery. She submitted her doctor’s letter, stating that Wallner would be unable to work for two months, with a date of return to work of Oct. 11, 2009.  Hilliard approved this two month period of leave. 

During Wallner's FMLA leave, there was confusion at Hilliard regarding when Wallner was planning on returning to work. While on FMLA, the employer placed Wallner on short-term disability through the policy it had in place with its insurance carrier.  The carrier erroneously calculated Wallner’s return to work date as Sept. 22 rather than Oct. 11. The Hilliard human resources manager mistakenly believed that Wallner would be required to return to work on that date. 

As a result, on Sept. 15, the HR manager called Wallner and ordered her back to work on Sept. 22. Wallner, who was still convalescing from surgery, tried to explain to the HR manager the difference between short-term disability and FMLA leave and that she could not return to work until her doctor cleared her to do so. The HR manager nevertheless insisted that Wallner needed to return on September 22. Courtesies degenerated, and Wallner's husband, who had been listening to the exchange in the background, began shouting profanities that the HR manager could hear over the phone.  

The disability carrier then changed the end of Wallner’s short-term disability to Oct. 1, which was still not the Oct. 11 date specified by Wallner’s doctor.  So the human resources manager again called Wallner and notified her that she must return to work on Oct. 2. But Wallner wanted to await her doctor’s instructions at her next appointment, scheduled for Oct. 5, so she did not return to work on Oct. 2.   On Oct. 5, when her doctor cleared her to return to work, she contacted Hilliard Lyons with the news that she would be back at work the next day.

Upon her return to work on Oct. 6, Wallner received what was styled a “final” written warning  for her behavior during the September 15 phone call with the human resources manager and for purportedly failing to stay in contact with Hilliard Lyons afterwards. Although the warning was called “final,” Wallner had not received any intermediate warning for her behavior, as was required by company policy. Among other things, the warning stated that "[a]ny further unscheduled absences or tardiness will be subject to further disciplinary action up to and including termination."

Nine days later, Hilliard Lyons fired Wallner for tardiness and absenteeism.  Unbeknownst to Wallner, starting on the day she had returned to work, the boss had been keeping records on the time of her arrival each day. Arrival was required at 8 am, and the records showed that on five days following her return to work, she arrived a few minutes late: specifically, at 8:05, 8:02, 8:06, 8:09, and 8:05 a.m.  For one of the 8:05 days, it later was proven with video footage that Wallner had actually arrived at 8:02:52 on that day.  

The boss later testified that "to be five minutes late is not necessarily a swing factor," but that "five to 15 minutes late consistently when it affects other employees is a major problem."  He  compiled a "document of deficiencies" that he indicated "were basically the reasons" for Wallner's termination. It stated that Wallner was “persistently late (5-15 minutes) even in view of repeated warnings,” which “ created a morale problem within the department.”  It also stated:

She would occasionally call in the morning before work to inform us that she would be absent from work that day. Unscheduled absences were not permit[t]ed... She had a hip replacement. I believe there was a standard allotment for recuperation of four (4) weeks. However, in case it was required an additional two (2) weeks could be allowed in case it was necessary. There was never any communication from her, to my knowledge, as to when she would return to work...An accumulation of deficiencies became intolerable.

The boss later indicated that the "accumulation of deficiencies" referenced at the document's conclusion referred to "the ones that are listed in [the] document."

Wallner filed suit under the FMLA, alleging that Hilliard interfered with her entitlement to FMLA leave, and retaliated against her for having taken that leave.  29 U.S.C. § 2615(a)(1) and (2). FMLA regulations provide that "employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions . . .," 29 C.F.R. § 825.220(c).

In opposition to Hilliard’s Motion for Summary Judgment, Wallner argued that the reasons given by Hilliard for terminating her were not the real reasons, and that if they were, they were insufficient to warrant her termination. Pointing to the boss’s statement that the reasons set forth in his memorandum were "basically the reasons" that Wallner was terminated, she contended that because the memorandum mentioned Wallner's surgery and consequent leave of absence, she was terminated in retaliation for having taken FMLA leave.   She noted that she had been tardy numerous times in the past without being terminated, her tardiness had never been documented in her Performance Appraisals, and her tardiness did not affect the operation of her department.

However, the District Court disagreed, and granted Hilliard’s Motion for Summary Judgment.    Wallner v. Hilliard Lyons, No. 3:11-CV-00359-CRSUnited States District Court, W.D. Kentucky, Louisville (November 4, 2013).

In an unpublished decision, the US Court of Appeals for the 6th Circuit reversed. Wallner v. Hilliard LyonsNo. 13-6548 (6th Cir. Oct. 31, 2014).  

The Court analyzed the case under a “mixed-motive” theory.  In other words, the FMLA prohibits an employer from using an employee's exercise of FMLA rights as "a negative factor" against the employee when making an employment decision. 29 C.F.R. § 825.220(c)).   The FMLA, like Title VII, authorizes claims in which an employer bases an employment decision on both permissible and impermissible factors."   If the plaintiff has presented evidence to establish that her exercise of her FMLA rights "played a motivating part in an employment decision," then the defendant may avoid liability "only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [the plaintiff's exercise of her rights] into account." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173-74 (2009).

The Court found that Wallner presented sufficient circumstantial evidence of retaliation to forestall summary judgment on her claim.  It noted that a reasonable jury could find that the decision to terminate Wallner did not depend upon her tardiness alone. The factors it considered persuasive were the short nine-day period between the date Wallner returned to work and the date Hilliard fired her, the boss’s memo mentioning her taking FMLA in the "document of deficiencies," the boss’s testimony that he was irritated by Wallner's constantly changing return-to-work date, which prompted him to be "suspicious" that she would not return from leave when she allegedly was required to.  

The court also noted that this suspicion was engendered by Hilliard Lyons's own conduct, when the HR manager gave the boss several erroneous return-to-work dates without ever notifying him that these changing dates were the result of her error, not Wallner’s. Further, Hilliard falsely accused Wallner of failing to inform them of her return to work date.  She was in fact only required to report her "status and intention to return to work," and there is no dispute that Wallner informed Hilliard Lyons as soon as her status changed—i.e., when her doctor cleared her for a return to work.

In sum:

...the document could reasonably be interpreted by a jury as an admission by (the boss) that Wallner was terminated partially because of the fact that she took FMLA leave, not merely because she failed to communicate her return date to him. On its face, the document is easily susceptible to the interpretation that Wallner's FMLA-related absence was one of four or five reasons motivating her discharge, and it certainly does not support Hilliard Lyons's argument that tardiness was the sole factor contemplated by (the boss) when he decided to fire Wallner. The document is, on its own, fairly significant evidence that more went into Hilliard Lyons's decision to terminate Wallner than solely her continuance of a years-long trend of tardiness.

Slip Opinion.  Further, with regard to Hilliard’s contention that Wallner’s lateness in the mornings when she returned from leave justified her termination, the Court noted that the boss himself testified that "to be five minutes late is not necessarily a swing factor; five to 15 minutes late consistently when it affects other employees is a major problem." Accordingly, “a jury weighing these facts could well be suspicious of the argument that Wallner's tardiness was the only reason that she was fired.”

Finally, the Court was influenced by the fact that despite Hilliard Lyons's assertion that Wallner was "chronically" late for work, the evidence consisted mainly of the boss’s assertion that he had verbally warned Wallner about it for years. It was significant to the Court that Wallner's recent performance evaluations made no mention of chronic tardiness. 

The Court explained:

But even assuming that Wallner's tardiness did contribute to the ultimate decision, the timing is suspicious. If she had been chronically late for twenty-seven years, why fire her only now? Why did her co-worker begin chronicling Wallner's arrival times only on the very morning that she returned to work from FMLA leave? Why did Wallner receive a "final" written warning on the day she returned from FMLA leave for conduct indisputably associated with her assertion of FMLA rights when the reprimand was not consistent with protocol, which required an intermediate written warning prior to a "final" written warning? Of the possible competing explanations, it would not be unreasonable for a jury to select the one that Wallner urges: that, particularly in light of (the boss’s) "document of deficiencies," Hilliard Lyons's conduct was at least partially responsive to her decision to take FMLA leave and the significant conflict over her correct return-to-work date that erupted while she was exercising her statutorily protected rights.

The Court concluded that a reasonable jury could find that Wallner's exercise of her FMLA rights may have been a motivating factor in Hilliard Lyons's decision to terminate her, and that the district court erred in concluding otherwise.  Now the case goes back to the District Court for a jury trial.  

The experienced lawyers at Kalijarvi, Chuzi, Newman & Fitch are ready to advise you if you have an issue regarding absenteeism, leave, and disciplinary actions.

- This blog post was prepared by Elizabeth L. Newman.  You may reach her at

Tuesday, December 16, 2014

Whose Time Is It Anyway? The Supreme Court portends a dim future for hourly employees.

‘Tis the season to be jolly….But if you are an hourly employee working at a breakneck speed to fulfill online orders for, you may be not be feeling so jolly. On December 9, 2014, the Supreme Court ruled in Integrity Staffing Solutions, Inc. v.  Busk, No. 13-433, Slip Op. (December 9, 2014), that the time hourly employees of Integrity Staffing Solutions, Inc. spent waiting to undergo and undergoing security screenings at the end of the day is not compensable under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201, et seq. Integrity provides warehouse staffing to throughout the United States. The warehouse employees retrieve products from the shelves, and package those products for delivery to Amazon customers. Integrity does not allow its employees to leave the warehouse at the end of each day without first going through a security screening. During this screening, employees must remove items such as wallets, keys, and belts from their persons, then pass through a metal detector. The warehouse workers spend an average of 25 minutes each day going through the required security screening.
In 2010, two of Integrity’s employees filed a putative class action against Integrity for alleged violations of the FLSA. The FLSA requires employers who are engaged in the production of goods for commerce to pay their employees at least the federal minimum wage, and to pay overtime pay for hours worked in excess of 40 in each workweek. 29 U.S.C. § 206, 207, respectively. [1] The Ninth Circuit Court of Appeals reversed the District Court’s dismissal of the complaint for failure to state a claim, finding that the post-shift screening activities were necessary to the principal work performed and done for the benefit of the employer. The Ninth Circuit accepted as true the allegation that Integrity required the screenings to prevent employee theft.

The Supreme Court reversed the Ninth Circuit. In Integrity, the Supreme Court began its analysis by discussing the litany of lawsuits that followed the passage of the FLSA in 1938, in which employees sought nearly $6 billion in backpay and liquidated damages for various pre- and post-shift activities. “Congress responded swiftly,” the Court wrote. “Declaring the situation to be an ‘emergency,’ Congress found that, if such interpretations ‘were permitted to stand,…the payment of such liabilities would bring about financial ruin of many employers.” The Portal-to-Portal Act was enacted in 1947 to quell the tide of these litigious actions. The Portal-to-Portal Act exempts employers from liability under the FLSA for claims related to two categories of work-related activities: (1) “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities.” 29 U.S.C. § 254(a).

Focusing on the second exemption under the Portal-to-Portal Act, the Supreme Court held in Integrity that the warehouse employees’ time spent waiting to undergo and undergoing Integrity’s security screenings does not meet the criteria for being a principal work activity that is compensable under the FLSA.  The Court first found that the “screenings were not the ‘principal activity or activities which [the] employee is employed to perform.’” According to the Court, “Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” Secondly, the Court reasoned, the security screenings “were not ‘integral and indispensable’ to the employees’ duties as warehouse workers.” The Court explained that “…an activity is not integral and indispensable to an employee’s principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities.” Integrity, Slip Op. at 7. Accordingly, under the Court’s definitions, the security screenings were not an intrinsic portion of the work performed by the warehouse workers, and the warehouse workers could dispense of the screenings and still perform their work for Integrity.
In reaching this conclusion, the Court erred in a number of significant ways. First, the Court attempted to create a third category of activities: those that are integral and indispensable to a principal activity, but which are not themselves principal activities. The Court found the screening activities were not the principal activity or activities for which Integrity hired the warehouse workers. Slip Op. at 7. Then the Court found that the security screenings were not integral and indispensable to the employees’ duties as warehouse workers. Id. By bifurcating the integral and indispensable duties from the principal activities, the Court in essence attempted to create a third category of activities—those that are integral and indispensable to the employer, and thus compensable, but which are not designated principal duties of the employees. In IBP v. Alvarez, 126 S. Ct. 514 (2005), the Court rejected this very analysis by respondent employer IBP. In IBP, the Court explained that in “Steiner [v. Mitchell, 350 U.S. 247 (1956)], we made it clear that § 4 of the Portal-to-Portal Act does not remove activities which are ‘integral and indispensable’ to ‘principal activities’ from FLSA coverage precisely because such activities are themselves ‘principal activities.’” IBP, 126 S. Ct. at 523 (quoting Steiner, 350 U.S. at 253).

Secondly, the Court erred in concluding that the security screenings did not constitute a principal activity of the warehouse workers. While Integrity may not have hired the warehouse workers for the particular purpose of undergoing security screenings, see Integrity, Slip Op. at 7, neither did King Packing Company hire its meatpacker employees to sharpen knives, see Mitchell v. King Packing Co., 350 U.S. 260, 262 (1956); nor did the battery plant hire employees to shower and change clothes after working. See Steiner, 350 U.S. at 249. That the Court erred in its analysis and conclusion is further demonstrated in Justice Sotomayor’s concurring opinion. Justice Sotomayor stated that the Portal-to-Portal Act “distinguishes between activities that are essentially part of the ingress and egress process, on the one hand, and activities that constitute the actual ‘work of consequence performed for an employer.’” Integrity, Slip Op. at 2. Justice Sotomayor concluded that “[t]he searches were part of the process by which the employees egressed their place of work, akin to checking in and out and waiting in line to do so—activities that Congress clearly deemed to be preliminary or postliminary.” Id. (citations omitted). By reaching this conclusion, Justice Sotomayor failed to comprehend the very purpose of the security screenings. Integrity did not require its warehouse employees to empty their pockets, wallets, etc. and pass through a metal detector merely as an alternative means of exiting the warehouse. Rather, the purpose of requiring its warehouse employees to undergo the security screenings was to prevent employee theft. Thus, going through the required security screenings was not merely part of the egress process.
Third, the Court erred in its analysis of whether the security screenings were integral and indispensable to the principal activities performed by the warehouse workers. The Court wrote that, “[t]he screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.” Integrity, Slip Op. at 7. The Court cited three cases to support its conclusion. The Court first discussed Steiner, in which the Court had held compensable “the time battery-plant employees spent showering and changing clothes because the chemicals in the plant were ‘toxic to human beings.” Integrity, Slip Op. at 6 (quoting Steiner, 350 U.S. at 249, 251). Next, the Court explained that in Mitchell, 350 U.S. 260, it had held as “compensable the time meatpacker employees spent sharpening their knives because dull knives would ‘slow down production’ on the assembly line, ‘affect the appearance of the meat as well as the quality of the hides,’ ‘cause waste,’ and lead to ‘accidents.’” Id. (quoting Mitchell, 350 U.S. at 262). In contrast, in IBP, the Court explained it had held as noncompensable the “time poultry-plant employees spent waiting to don protective gear because such waiting was ‘two steps removed from the productive activity on the assembly line.’” Id. (quoting IBP, 126 S. Ct. at 528).

The Court failed to recognize that in IBP, it had made a distinction between essential work that the employer always required the employees to perform (donning the protective gear)—which is compensable—and time the workers spent waiting to don the first piece of protective gear, which “may or may not be necessary in particular situations or for every employee,” and thus not compensable. IBP, 126 S. Ct. at 527. Integrity always required its warehouse employees to undergo security screenings at the end of each day; this requirement did not vary from day to day or worker to worker. Additionally, the Court missed entirely the very purpose of the security screenings—to prevent employee theft. The Court summarily—and erroneously—concluded that “Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.” Integrity, Slip Op. at 7. If Integrity believed it could eliminate the security screenings altogether without impairing the warehouse employees’ ability to complete their work, surely it would not have required them to undergo the security screenings.
Fourth, citing to the Department of Labor’s regulations at 29 C.F.R. § 790.8(c), the Court erred in finding that the security screenings were not closely related activities which were indispensable to the performance of the warehouse workers’ principal activities. “[T]he regulations explain that the time spent by an employee in a chemical plant changing clothes would be compensable if he ‘c[ould not] perform his principal activities without putting on certain clothes’ but would not be compensable if ‘changing clothes [were] merely a convenience to the employee and not directly related to his principal activities.” Integrity, Slip Op. at 6-7 (brackets in original) (quoting 29 C.F.R. § 790.8(c)). In the regulations, the Department of Labor added a footnote to this provision cited by the Court, stating, “[s]uch a situation may exist where the changing of clothes on the employer’s premises is required by law, by rules of the employer, or by the nature of the work.” 29 C.F.R. § 790.8(c) n. 65. The Court failed to appreciate that the warehouse workers did not empty their pockets, wallets, etc., and pass through a metal detector as a convenience to themselves. Rather, the security screenings were required by Integrity’s rules. Under the Department of Labor’s regulations, the security screenings were closely related activities which were indispensable to the performance of the warehouse workers’ principal activities of retrieving products from warehouse shelves and packaging those products for delivery to Amazon customers. For if employee theft (which the security screenings were intended to prevent) resulted in little or no products remaining on the shelves for delivery to Amazon’s customers, the warehouse workers would not be able to perform these principal activities.

What does the Court’s holding portend for hourly workers? According to the Court, any work which hourly employees perform but for which they were not specifically hired is not a principal activity and thus not compensable. See Integrity, Slip Op. at 7. And, according to the Court, only that work which is “tied to the productive work that the employee is employed to perform constitutes work that is integral and indispensable to a principal activity.” See id. at 8 (emphasis in original). Should hourly employees pay very close attention to the duties set forth in a job description (as that description would presumably define the work that the employee is employed to perform) and refuse to perform any other duties, for fear of not getting paid for those other duties? Not if they want to keep their jobs. Should hourly employees refuse to perform any work that is not actual productive work? Not if they want to keep their jobs.
The Supreme Court has left hourly employees with a Hobson’s Choice: spend time on duties which they were not specifically hired to perform or which is not actual productive work—and not get paid for that work—or refuse to do that work and risk getting fired. In this time of a shrinking middle class, it seems that the Supreme Court’s decision in Integrity will all but ensure a continuation of that downward spiral.


Written by Valerie Chastain

[1] There are several exceptions to this rule, which are not at issue in this analysis.

Thursday, December 11, 2014

No Other Choice: the Nuances of Constructive Discharge in Violation of Title VII

The Supreme Court recognized constructive discharge in Title VII cases in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), finding that a plaintiff can establish such a violation by showing that discrimination created “conditions so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” The limits and requirements of Suders are at issue in a petition for certiorari filed with the Supreme Court in the case of Ames v. Nationwide Mutual Ins. Co., et al., 760 F.3d 763 (8th Cir. 2014).

Angela Ames had been a loss mitigation specialist for Nationwide Insurance for several years before she became pregnant with her second child. Following her maternity leave, Ames returned to work on July 19, 2010. Within three hours, she resigned.

When Ames arrived at the office on July 19, 2010, she needed to express milk. She asked the head of her department, Associate Vice President Karla Neel, about using a lactation room. Neel responded that it was not her responsibility to provide Ames with a lactation room; Ames then sought out the company nurse, Sara Hallberg. Ames’s and Hallberg’s testimonies diverge sharply, but Ames alleged that Hallberg told her that she would have to go through a three-day processing period before she could use the lactation room, in accordance with the company’s lactation policy. Hallberg informed Ames that she could use the wellness room, which would be free in 15 minutes, but that doing so could expose herself and her milk to airborne bacteria. While waiting for the wellness room, Ames met with her direct supervisor Brian Brinks to discuss the status of her work. Brinks told her that none of her work had been completed while she was on maternity leave, that she had two weeks to complete that work, that she would have to work overtime to accomplish this, and that if she failed to catch up, she would be disciplined. At this point, Ames was in physical pain from being unable to express her milk, visibly shaken, and in tears. She once again sought help from Neel, who told her, “You know, I think it’s best that you go home to be with your babies.” Neel handed Ames a piece of paper and a pen, and dictated for Ames her resignation letter.

 As background, Ames alleged that throughout her pregnancy Neel and Brinks made numerous statements indicative of an animus towards the pregnancy. Neel would roll her eyes when Ames would attempt to discuss her medically-ordered bed rest, and say “I never had this many problems when I was pregnant. All I needed was a pocketful of Tums, and I was good to go.” When Ames exhausted her Family and Medical Leave Act leave, Neel warned Ames that “taking additional [unpaid] leave would cause red flags, and she didn’t want there to be any problems like that, and that she didn’t want there to be any issues down the road.” Brinks stated that they could not give Ames more leave because there was too much work to do.

Nevertheless, the U.S. District Court for the Southern District of Iowa granted summary judgment for Nationwide, which the U.S. Court of Appeals for the Eighth Circuit affirmed. Summary judgment, which avoids a full trial, is granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In essence, this means that there is no interpretation of the facts that would allow the losing party to win.

In doing so, the Eighth Circuit construed Suders to mean that the plaintiff alleging constructive discharge must prove, in addition to intolerable working conditions, two more elements: (1) that the employer acted with the intent of forcing the plaintiff to resign, and (2) that before resigning the plaintiff complained sufficiently to the employer about the discrimination.

There are problems with the Eighth Circuit’s addition of the second element into Suders, as analyzed by an amicus brief from the ACLU in support of Ames. A requirement to complain “sufficiently,” meant to provide the employer with an opportunity to correct the problem, ignores an unfortunate reality that complaining is all too often futile. Suders instructs that the affirmative defense of “lack of opportunity to address and ameliorate” is not available where a supervisor’s actions show that “the supervisor had used his managerial or controlling position to the employee’s disadvantage.” This is consistent with well-established principles that where the actor is a supervisor or manager, the actions are being taken by the company itself. The company is not being denied the ability to “address and ameliorate” because the company is taking the actions. In this case, Ames was still trying to resolve her problem when Neel shut her down, handed her a pen and paper, and dictated to Ames her resignation letter. If Suders had been properly applied, Ames would have been relieved of any obligation to pursue the matter further, and the company would have been held strictly liable.

Should the Supreme Court take up her case, it should follow the path set by Congress’s passing of the Pregnancy Discrimination Act of 1978. It should recognize, once again, that this is precisely the kind of gender stereotyping that Title VII was designed to eradicate. It should examine, as the Eighth Circuit failed to do, the still present and deeply problematic assumptions about the role of women in the workplace. In particular, the battle for gender equality has now focused on pregnant women and new mothers, often involving expressed concerns for the health and safety of the pregnant woman, or with her ability to work in a competitive environment. (See, for example, Young v. United Parcel Service, recently argued before the Supreme Court.) Whether these concerns will be permitted to play any role in our society any longer remains to be seen.

Written by Nina Ren

Tuesday, December 2, 2014

Supreme Court's Decision In Johnson v. City Of Shelby Clarifies Pleading Standards

The National Employment Lawyers Association (NELA) has a worthy blog about employment law and advocacy. Below is an item I wrote for them.

Pleading standards are important. A judge’s decision about whether a complaint is adequate can make the difference between winning or losing a case. 

Lawyers have been in a tizzy about a pair of Supreme Court decisions, Twombly and Iqbal, in which the Supreme Court allowed cases to be dismissed merely because the plaintiffs could not be specific enough about their claims to make their cases “plausible.” These decisions protected Bell Atlantic from an anti-trust claim, and former Attorney General Ashcroft from liability for the prison beating of Javad Iqbal shortly after the 9/11 attacks.

Employers have jumped on Twombly and Iqbal by seeking immediate dismissal of almost every discrimination, retaliation and consumer rights case. Lawyers had to adapt by becoming more specific in their pleadings, anticipating the facts they would need to survive the initial motion to dismiss. It had seemed that the old days of “notice pleading” were over.

A new decision from the Supreme Court, however, has made a major clarification of Twombly and Iqbal. In Johnson v. City of Shelby, Mississippi, the Supreme Court said that Twombly and Iqbal only apply to a party’s factual allegations, and there is normally no requirement to plead the legal theory of liability.

Tracey Johnson and other Shelby police officers filed their lawsuit after the City fired them. They claimed that the City fired them because they uncovered criminal activity by one of the City’s aldermen. The lower courts had dismissed their lawsuit because they had failed to cite the applicable statute in their complaint. That statute, 42 U. S. C. §1983, is also called the Civil Rights Act of 1871. Congress responded to violence by the Klu Klux Klan by allowing victims to sue when anyone acting “under color of state law” deprived them of federally guaranteed rights.

The Supreme Court reminds us that, “[f]ederal pleading rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” Fed. Rule Civ. Proc. 8(a)(2). The rules, “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.”

The Supreme Court specifically approved of a leading case on pleading standards that pre-dates Twombly and Iqbal, Swierkiewicz v. Sorema N. A., 534 U. S. 506, 512 (2002). In Swierkiewicz, the Supreme Court unanimously struck down a requirement the Second Circuit had dreamed up just for discrimination victims. It required them to explain how they would meet the prima facie case described in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). 

The Supreme Court said that requiring such specific pleading is inappropriate because (1) there are other ways to prove discrimination besides the McDonnell Douglas inference; (2) “[b]efore discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case”; and (3) the rules only require a plaintiff to “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.”

The Johnson decision makes clear that these reasons still apply today. Not only did the Supreme Court issue this decision without a dissent, it did so without the normal briefing. Johnson and the other police officers appealed to the Supreme Court without a lawyer. Before deciding to accept the case, the Supreme Court decided to issue a decision in their favor to reinstate their case and send it back for discovery.

“Notice pleading” is the correct standard for pleading discrimination claims; Swierkiewicz is still good law; and Twombly and Iqbal are no longer reasons for such a tizzy.

RICHARD RENNER is Of Counsel to the law firm of Kalijarvi, Chuzi, Newman & Fitch, P.C. He has more than 30 years experience representing employees in a wide range of civil rights and whistleblower cases. He has particular experience in using litigation to advance the rights of employees. He served as Co-Chair of the Whistleblower Committee of the National Employment Lawyers Association (NELA), is a Co-Chair of NELA's Ethics & Sanctions Committee, and won election to NELA's Executive Board in 2014.

Tuesday, November 25, 2014

Ninth Circuit rules for nuclear whistleblower, Tamosaitis, Part 2

A recent decision of the U.S. Court of Appeals for the Ninth Circuit covers a number of common issues in whistleblower cases. Today, I compare how Dr. Walter Tamosaitis tried to pursue his claims in different courts. The outcomes provide insights that can be helpful to future whistleblowers. This is the second and last part of my analysis of this case.  Follow this link to read Part 1.

Dr. Tamosaitis’ lawsuit against Bechtel did not fare well. The Washington state court dismissed it because it said that Bechtel had not caused Dr. Tamosaitis any “pecuniary loss.” The state court of appeals affirmed this dismissal. Tamosaitis v. Bechtel Nat., Inc., 182 Wash. App. 241, 249, 327 P.3d 1309, 1313 (2014). 

The federal court of appeals noted that some states have recognized tort claims for employees who suffer demotions or other adverse actions on account of their stands for the public interest. It also held that the reduction in duties was actionable under the federal law. 

The outcome of Dr. Tamosaitis’ state court case exemplifies the risk that whistleblowers face when their claims get fragmented. If Dr. Tamosaitis had kept all his claims at the Department of Labor (DOL), his amendment to add DOE and Bechtel would have been valid. His claims arising from demotion would have been just as valid as a discharge claim. Moreover, DOE and Bechtel would have been held liable if they ratified or acquiesced in the retaliation. Here, Dr. Tamosaitis had evidence that they actually asked URS to remove him from his duties. However, before the Washington State and Ninth Circuit courts issued their decisions, it would have been hard for Dr. Tamosaitis or his lawyers to anticipate how these cases would have come out.

The Ninth Circuit made some additional holdings that will be particularly helpful to Dr. Tamosaitis and other whistleblowers. It held that URS’ defense that it needed to reassign Dr. Tamosaitis to keep DOE and Bechtel happy is not a legal defense. “It would be totally anomolous [sic] if we were to allow the preferences . . . of [a] customer[] to determine whether the . . . discrimination was valid.” [Quoting other decisions on page 23.] 
It also held that Dr. Tamosaitis had no obligation to prove “retaliatory animus.” All he has to show is that his protected concerns were a “contributing factor” in the adverse actions. “The relevant causal connection is not between retaliatory animus and personnel action, but rather between protected activity and personnel action.” [Emphasis in the original on page 24.] Of course, where there is evidence of actual animus (as there is in the email from Bechtel’s political science major), that will be very helpful evidence of the causal connection. 

The Ninth Circuit went on to hold that URS could not show that it would have taken the same action without any protected activity. Reliance on Bechtel’s and DOE’s demands is “unavailing.” A URS supervisor testified that if Bechtel ordered him to assign a man and remove a woman, then URS would not have to comply. A jury could therefore find that URS still have control over Dr. Tamosaitis’ assignment.

Finally, the Ninth Circuit addressed the district court’s order striking Dr. Tamosaitis’ jury demand. It first noted that unlike some other employee protections, the ERA does not specifically mention jury trials. It cited the Civil Rights Act and the Jones Act (giving seamen a remedy for injuries) as examples of how Congress can explicitly grant a right to jury trials. It could also have pointed to SOX, STAA, NTSSA, FRSA, CPSIA, SPA, MAP-21 or Dodd-Frank. 

However, the Ninth Circuit went on to look at the nature of a whistleblower’s claim. It held that because the claim is for compensatory damages, including mental anguish, emotional distress, pain and suffering, humiliation and loss of professional reputation, it is subject to the Seventh Amendment’s guarantee of a right to trial by jury. The court rejected the lower court’s holding that erred in focusing on the nature of the claim at the DOL. The court held that where Congress says a claim can go to federal court, the doctrine allowing agencies to decide cases without juries “disappear[s].” “Congress . . . chose an aggressive timetable for resolving whistleblower claims and . . . created a cause of action as an alternative forum should the DOL fail to comply with such schedule.” (Page 35, quoting Stone v. Instrumentation Lab. Co., 591 F.3d 239, 248 (4th Cir. 2009)).

This is exactly right. Unfortunately, the Ninth Circuit neglected to heed this “alternative forum” for whistleblowers when it dismissed the parent company and DOE.

Dr. Tamosaitis has a strong case against URS, and the Ninth Circuit helpfully sent the case back to the district court with a right to a jury trial. His case stands as a reminder of the high cost our nation faces in cleaning up from our nuclear weapons program. It also suffered in some respects. This suffering would be alleviated if courts were more attentive to the remedial purpose of whistleblower protection laws.

By Richard R. Renner

Monday, November 24, 2014

Ninth Circuit rules for nuclear whistleblower, Tamosaitis, Part 1

A recent decision of the U.S. Court of Appeals for the Ninth Circuit demonstrates the importance of understanding the purpose of the law. Today, I look at the facts of this case, and the Ninth Circuit's unfortunate holding on the affect of amending an OSHA complaint.  Tomorrow, I will discuss the merits of the case against his former employer, URS.

Dr. Walter Tamosaitis is a professional engineer working for URS Energy & Construction. Since 2003, he had been the Research & Technology (R&T) Manager for the Waste Treatment Plant (WTP) being built in Hanford, Washington. The federal government had condemned the whole town of Hanford in 1943 to build a plutonium production facility for our nuclear weapons program. Over the decades, it generated 53 millions of gallons of radioactive waste. Already, one million gallons have leaked out into ground water and the nearby Columbia River.

Now the government is leading an effort with contractor Bechtel and subcontractor URS to build the WTP. When finished, the WTP is supposed to mix the waste in glass to stabilize it. It needs to stay stable for a long time. The “half-life” of plutonium is 24,000 years. Engineers want ten half-lives of decay to bring the waste close to background radiation levels. That means waiting for 240,000 years.
Another problem with this plan is actually mixing the waste. In 2009, the Department of Energy (DOE) managers asked Dr. Tamosaitis to lead a team to study the engineering problems. By that time, the government had already spent over $500 million on the project. Dr. Tamosaitis told a Senate committee earlier this year that the employees joked about having a bus ticket to get out of town before the WTP ever starts operation. Dr. Tamosaitis responded that he did not have a bus ticket because he intended to see the project through. 
Bechtel gave Dr. Tamosaitis a deadline of June 30, 2010, to solve the “M3 mixing issue” and prove it with testing. Bechtel wanted to get a big government reward for meeting this target. Dr. Tamosaitis insisted on a commitment to apply the necessary resources, and he got that commitment. Then, in January 2010, a new Bechtel manager (a politics major, not an engineer) slashed costs and revoked the commitment. The new manager threatened to fire anyone who got in his way. 
In March, 2010, DOE Senior Scientist Dr. Donald Alexander raised a concern that mixing the radioactive waste could cause a hydrogen gas explosion, or a runaway nuclear chain reaction. Management told Dr. Tamosaitis to “oppose and kill” this concern. In April 2010, Dr. Tamosaitis reported that Dr. Alexander’s concern was valid. Obviously, Bechtel could no longer meet the June 30, 2010, deadline. Bechtel would either have to give up hope of getting the reward, or lie to the government. They chose to lie. Bechtel began pressuring engineers to go along with their plan or risk losing their jobs. When the Pacific Northwest National Laboratory (PNNL) refused to go along, Bechtel’s plan crashed. Dr. Tamosaitis submitted his reports and emails raising 100 safety concerns.
On June 30, 2010, Dr. Tamosaitis explained his concerns at a meeting. A Bechtel Engineering Manager told him that he should choke on the cherries. Unbeknownst to Dr. Tamosaitis, the politics manager emailed URS the next day saying “Walt is killing us. Get him (out) to your corporate office today”. URS agreed and on July 2, 2010, URS reassigned Dr. Tamosaitis. He lost his staff, but still refused to move to continue his career.

Instead, Dr. Tamosaitis sued. On July 30, 2010, he filed a complaint against “URS, Inc.” with the U.S. Department of Labor (OSHA) under the whistleblower protection of the Energy Reorganization Act (ERA). This is not only within the 180 day time limit under the ERA, it also met the 30-day time limit for the environmental and worker safety laws.
URS Corp. responded to OSHA saying that it was the parent company of URS Energy and Construction – Dr. Tamosaitis real employer. In December 2010, after the OSHA investigation had progressed, Dr. Tamosaitis notified OSHA that he wanted to add Bechtel and the U.S. Department of Energy to his case. It is common that the OSHA investigation will reveal the correct identity of the parties, and it was smart of Dr. Tamosaitis to notify OSHA to include the new parties.
In September 2011, Dr. Tamosaitis’ complaint had been pending at OSHA for over a year without a decision. Again, this is commonplace. Congress has given OSHA responsibility to investigate whistleblower complaints under 22 laws, but has failed to give OSHA the funds needed for all these investigations. Dr. Tamosaitis gave notice that he was exercising his right to file his case in U.S. District Court. OSHA dismissed his case in response to the notice that he was filing in court.

Dr. Tamosaitis filed his case against URS (both the parent and subsidiary) and the U.S. Department of Energy. He filed a separate state court lawsuit against Bechtel for interfering in his contract of employment.

The district court was not as helpful as whistleblowers would want. Instead of recognizing the tremendous service Dr. Tamosaitis gave to the American people and the planet, it looked for ways to dismiss his case. When DOE and URS Corp. complained that the OSHA complaint had been pending against them for less than a full year (just 11 months), the district court agreed to dismiss them. The district court also declared that Dr. Tamosaitis was not entitled to a jury trial because the claim seeks to vindicate a “public right.” Finally, the court said that Bechtel made the decision to eject Dr. Tamosaitis, so URS’ subsidiary was not liable for that either. 
Dr. Tamosaitis appealed to the Ninth Circuit. Initially, the appeals court reviewed the facts. The court recognized that nuclear mishaps can lead to a “criticality accident,” especially if combined with hydrogen gas. However, the court misunderstood the nature of radioactive decay. The opinion states that the nuclear waste will “lose its radioactivity” “[o]ver hundreds of years[.]” This time scale of mere centuries would be so much better if it were true. The words “half-life” do not appear in the court’s analysis.

Next, the court looked at the “exhaustion” issue. Since the ERA does not require whistleblowers to exhaust the entire DOL process, but lets them “kick-out” to federal court, I would not call this requirement “exhaustion.” It is actually a charge-filing requirement, not exhaustion. Nevertheless, the court of appeals held that the purpose of the right to kick-out to federal court is to pressure DOL to resolve whistleblower cases more quickly. I think this is the wrong way to look at the kick-out provision. It is not for DOL’s benefit, but rather for the whistlelbower’s benefit. Seen this way, it is natural to conclude that Dr. Tamosaitis followed the correct procedure by filing in federal court once he had waited more than a year for OSHA. Looking through the eyes of the DOL, the appeals court said that Dr. Tamosaitis had not given the DOL enough time to investigate the claims against DOE and URS’ parent company. Their dismissal was upheld. 

This holding is unprecedented to my knowledge, In a footnote, the court agreed that this rule is different from the one used in Title VII cases filed with EEOC. The court said this was because EEOC’s role was to mediate cases whereas DOL-OSHA adjudicates cases. This distinction misses on both marks. EEOC does have the power to adjudicate cases by filing its own cases in federal court. EEOC thankfully does this in many important cases (although it has far to little funding to do it in all the meritorious case). Also, OSHA does not adjudicate cases, but investigates them. OSHA also tries to settle cases, and actually does settle most of the cases in which it finds merit. The outcome here shows the importance of understanding the real purpose of each provision of the law.

By Richard R. Renner

Wednesday, November 19, 2014

A Word to the Wise Federal Employee Claiming Discrimination: Cooperate

As many federal employees and their counsel know, to pursue a complaint of discrimination the employee must first "exhaust administrative remedies". This means, of course, that the employee must arrange for EEO counseling within the proper time period (45 days after a personnel action; or 45 days after the latest incident in a pattern of incidents that makes up a "hostile work environment"). After counseling is finished, the federal employee must file the formal EEO complaint within 15 days of receiving the Notice of the right to do so. Then, the employee must request an EEOC hearing within 30 days after receiving the Investigation Report. And, finally, if the employee wants to file in court, that must be done within 90 days after receiving the Government’s "final decision" on the complaint.

Although these deadlines, and others, are a challenge under any circumstances, there is another – more challenging – requirement awaiting federal employees: cooperation. For most employees, cooperation is not a problem; indeed, employees are so convinced they are the victim of discrimination it’s difficult to slow them down. Nevertheless, every now and then a case that has found its way to court hinges on whether the employee was – or was not – sufficiently cooperative.

Such a case was recently decided by the U.S. Court of Appeals for the District of Columbia Circuit. Koch v. SEC, 744 F.3d 162 (D.C.Cir. 2014). Koch was working for the Securities and Exchange Commission when he was diagnosed with a heart problem. He asked the Agency to grant him accommodation by modifying his work hours so he could undergo rehabilitation without using leave. After a year without a response, Koch consulted an EEO counselor and filed a formal EEO complaint. That’s when things got sticky.

As do many federal agencies, the SEC has a contract for investigating EEO complaints, and it assigned the investigation of Koch’s complaint to one of these contract investigators. The SEC informed Koch of this arrangement, and it also told him that he was "obligated to cooperate" with the investigation. Although Koch had provided his EEO counselor with his medical records concerning his heart condition, he was concerned that any medical records he gave the investigator would not be protected by the Privacy Act (which covers agency records) because the contract investigator was not an SEC employee.

Koch wanted assurance that the investigator’s contract included clauses applying the Privacy Act. The SEC showed Koch a copy of the non-disclosure agreement governing the investigator, but Koch felt this wasn’t sufficient. Moreover, the contract itself was unclear: the language invoking the Privacy Act was not actually in the contract, but was incorporated by reference. With that, Koch declined to authorize disclosure of his medical records to the investigator and he refused to provide an affidavit to the investigator as part of the investigation into Koch’s complaint. The Agency dismissed Koch’s complaint for failure to cooperate. 29 C.F.R. § 1614.107(a)(7).

Koch appealed the dismissal to the EEOC, which upheld the agency, and he then filed an action in district court. The court granted summary judgment to the SEC, finding that Koch’s failure to cooperate constituted a failure to exhaust his administrative remedies, and therefore he had no right to be in court. Koch appealed that decision to the D.C. Circuit. The court’s disposition of Koch’s appeal is a cautionary tale for EEO complainants.

The court first articulated the link between the complainant’s obligation to "cooperate" and the requirement that he exhaust his remedies: "A plaintiff’s suit ‘will be barred for failure to exhaust administrative remedies’ if he ‘forces an agency to dismiss or cancel the complaint by failing to provide sufficient information to enable the agency to investigate the claim’." Because the SEC made clear to Koch that it needed his testimony and his medical records, and Koch refused to provide either, he failed to provide the minimum information necessary for the investigation to proceed.

Koch argued that he had already given the medical records to the counselor. The court rejected this argument, noting that Koch had declined to authorize the agency to provide those records to the investigator. At bottom, because Koch refused to provide any information beyond what he gave the counselor, he failed to exhaust the EEO process.

Interestingly, the court rejected out of hand Koch’s contention that his reluctance to provide his medical records to the investigator should be excused because he was not given adequate assurances that his records would be protected by the Privacy Act. The court chastised Koch for making this argument given "the extensive privacy protections for his medical records included in the contract." However, because the court earlier acknowledged that these "extensive privacy protections" were not immediately clear, it is hard to see why Koch should have been aware of them.

Rather, the court appears to be most critical of Koch’s outright refusal to provide any information to the investigator. In retrospect, Koch would have been better served had he sat down with the investigator and prepared an affidavit setting forth his claims and the evidence he believed supported his claims. At that point, the Agency would have had to prove that the specific medical records were critical to the record. As it is, Koch provided no evidence whatever, and he took the risk that the SEC would dismiss the complaint rather than proceed under his demands.

Finally, it is not clear whether Koch was represented by counsel during the EEO process and what, if any, legal advice he was receiving. Clearly, however, counsel representing federal employees during the administrative process should inform their clients that a refusal to provide information pursuant to what may later be considered a reasonable request may result in a total dismissal of the complaint with no further possibility of relief.

For other cases involving an alleged failure to cooperate, see Rann v. Chao, 346 F.3d 192 (D.C.Cir. 2003) (complaint dismissed where employee refused to provide a signed affidavit); Wilson v. Pena, 79 F.3d 154 (D.C.Cir. 1996) (complaint would not be dismissed where agency had enough information to issue an earlier decision on the merits); Woodard v. Lehman, 717 F.2d 909 (4th Cir. 1983) (dismissal affirmed where, in response to a request for a statement detailing instances of discrimination, the complainants replied that there was enough information in the complaints).


Written by George Chuzi

Sunday, November 16, 2014

Social Security Administration Agrees to $10 Million Disability Discrimination Settlement

After almost ten years of litigation, the Social Security Administration has agreed to settle a major class action involving discrimination in promotion against employees with disabilities. The case is Ronald Jantz, et al. v. Astrue, Commissioner, Social Security Administration, EEOC No. 531-2006-00276X.   A review of the history of this litigation shows the arduous and lengthy course class action litigation often takes.  As often happens in class action litigation, the defendant very aggressively fought against certification of the class.  

The initial complainant, Ronald Jantz, is totally deaf.  He worked as a GS-12 Management Analyst for the Social Security Administration (SSA) in Baltimore, MD. He used a TDD for telephone usage, and had a personal assistant at work who typed for him on a laptop computer when he attended meetings, training or conferences.  In 2005, Jantz applied for several GS-13 Lead Management Analyst positions.  He made the “Best Qualified List” (BQL), but was not selected.

In 2005, Jantz filed an EEO complaint and sought to serve as the class agent in a class action complaint.  Jantz provided statistics that showed that non-disabled candidates who made the BQL had an 11% likelihood of being selected, whereas disabled candidates had only a 7% likelihood.  He sought to bring his case as a class action, representing all “targeted” disabled candidates who made the BQL but were not selected. The EEOC defines “targeted” disabilities as: deafness, blindness, missing extremities, partial paralysis, complete paralysis, convulsive disorders, mental retardation, mental illness, and genetic and physical conditions affecting limbs and/or spine. EEOC Management Directive 715 (MD-715). Jantz argued that the SSA gave selecting officials unfettered discretion and allowed for unchecked subjective decision-making.  

Three years later, in 2008, the EEOC Administrative Judge certified a class defined as, “All current and former employees with targeted disabilities at the Social Security Administration who, on or after August 22, 2003, have applied for and made a Best Qualified List for promotion, but were not selected for promotion.” 

The agency rejected the Administrative Judge’s decision, and issued a final decision denying class certification.  Jantz appealed this decision, and two years later, the EEOC Office of Federal Operations agreed with Jantz and reinstated the class certification.  

In response, the agency moved for reconsideration, on the grounds that the US Supreme Court had just agreed to hear a class certification issue, Dukes v. Walmart, 603 F.3d 571 (9th Cir. 2010). The EEOC denied this motion.  But in 2011, when the Supreme Court issued the Dukes decision, 131 S. Ct. 2541 (2011)a seminal ruling in class action employment law, the agency petitioned the EEOC to decertify the class.  Three years later, in 2014, the EEOC Administrative Judge denied this motion.    

This past summer, the AJ agreed to put the case on hold so that the parties could engage in mediation, with a retired United States Magistrate Judge serving as mediator.  On Sept. 30, 2014, the parties entered into a final and binding settlement agreement

Pursuant to the agreement, the SSA will establish a $10 million fund for the payment of claims to eligible class members, as well as Class Counsel’s legal fees and expenses, and payments to Mr. Jantz and the other class agents, as well as administrative costs.  The SSA also agreed to a package of extensive programmatic changes that are designed to retain and support employees with disabilities and to broadly enhance the opportunities for career success and advancement of such employees. These programmatic changes include major revisions to SSA’s reasonable accommodation processes, technology processes, training content, and provision of assistive supports for Agency employees with disabilities. The reasonable accommodation changes, in particular, will create a new centralized office where a multidisciplinary team of specialists will promptly and expertly handle requests that do not lend themselves to ready approval by a first-line manager.

Employees contemplating serving as class agents and bring class actions need to be aware that employers will aggressively oppose the certification of the class, meaning that any personal relief to the class members will be far in the future. 

-- This blog entry was written by Elizabeth L. Newman.  You may reach her at

Tuesday, October 28, 2014

Welsh pursues case on protections for seaman whistleblowers

My client, Maurice “Maury” Welsh, is a life-long seaman. He comes from a family of seamen, and now his son is in maritime studies. His case is now poised to change the scope of protection for other seaman working on U.S.-flagged carriers. (Welsh has given permission for me to post this information about his case, something lawyers cannot do without their client’s permission.) Today, an Administrative Law Judge of the U.S. Department of Labor overruled the shipping company’s motion to dismiss to allow Welsh to collect more information about the company.

In November, 2013, one of the historic U.S. shipping companies hired Welsh to work on a container ship as 2nd Assistant Engineer. The ship flies a U.S. flag and participates in the U.S. government’s Maritime Security Program (MSP). The company advertises the ship as part of its “U.S. Flag Services” and a critical link for many U.S. Government efforts worldwide. 

Soon after setting sail, Welsh started raising concerns about the lock-out tag-out procedures. The 1st Engineer told him that each tag required a separate piece of paper and he did not want to keep track of all that paperwork. 

On December 23, 2013, Welsh followed the manufacturer’s instructions for maintenance of the #2 Diesel Generator and turned on the generator and warmed it up to reach the required exhaust temperature. The 1st Engineer countermanded Welsh and shut it off. The company then terminated Welsh on December 25, 2013, citing the disagreement over the engine maintenance as a reason.
When Welsh came to me, I recognized that he had been fired for raising safety issues. I file a complaint with the Department of Labor under the Seamans Protection Act (SPA). OSHA closed the complaint without conducting any interview of Welsh, and without receiving any response from the company. 

So, I requested a hearing from the Department of Labor’s Office of Administrative Law Judges (OALJ). The company moved to dismiss the case citing an OSHA regulation that says a “seaman” is someone working for a “U.S. citizen.” The company says that since it was bought by an overseas company a few years ago, it is not covered by the SPA. I disagreed. Now the ALJ is allowing discovery to commence. I am hopeful that my research on this issue will help the Department of Labor to recognize that the SPA protects American seaman working on U.S. flag vessels, no matter who owns them.

The Seaman’s Protection Act (“SPA”), 46 U.S.C. § 2114(a), provides in part as follows:

(a)(1) A person may not discharge or in any manner discriminate against a seaman because-
(B) the seaman has refused to perform duties ordered by the seaman's employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public[.]

While the Department of Labor has added a regulation defining a “citizen of the United States,” and a “seaman” as an employee of such a citizen, these definitions have no basis in text of the statute itself. The statute gives the Department no authority to promulgate substantive regulations, and the Department’s own statement indicates no intent to make any substantive change. Moreover, the caselaw on extraterritorial application of whistleblower protection laws has advanced considerably in recent years. 

Welsh objected to the company’s motion to dismiss on the following grounds:

  1. The plain text of the SPA applies to any “person.”
  2. The remedial purpose of the SPA urges in favor of finding coverage.
  3. The regulation is not substantive and cannot alter the statutory scope of coverage.
  4. The ship flies a U.S. flag and is thereby subject to U.S. law.
  5. The adverse actions in this case occurred within the jurisdiction of the United States, and U.S. law properly applies. Finding coverage in this case is consistent with the developing law on extraterritoriality.
  6. The company in this case is a U.S. corporation, and faces liability here for its actions within the U.S., even if it is owned by a corporation of another country.
  7. Welsh had a reasonable belief that he was working with the scope of U.S. law which includes the SPA.
  8. Discovery is necessary and appropriate before making a finding of lack of jurisdiction.

You can follow this link to read the full legal argument I made for Maury Welsh. It explores the doctrine of jurisdiction under admiralty law and explains how the United States sets conditions for "cabotage rights" (the right to sail from one U.S. port directly to another, without visiting a foreign port).

Hopefully, other seaman who raise safety issues and suffer for it will be able to use the same arguments to preserve their rights under the SPA. I also hope the Department of Labor will soon issue a final regulation that conforms to the language used by Congress.

By Richard Renner

Tuesday, October 14, 2014

Employee fired for drinking store's OJ to avoid diabetic coma

Linda Atkins worked at the Dollar General Store in Maryville, Tennessee as a Lead Sales Associate. She had been working there for two years, and was a very satisfactory employee, having been promoted from Sales Associate a year earlier. 

As Lead Sales Associate, Atkins’ duties included sales associate functions and assisting in opening and closing the store at the direction of the store manager.  She would also work as the store manager on duty and as the relief cashier when the shift cashier took a lunch break.  

Atkins has Type 2 Diabetes, and has to give herself an injection of insulin every day. She told the Store Manager about her diabetes, and asked for permission to keep a bottle of juice near the cash register so that she could drink it if she felt the onset of a hypoglycemic attack while on duty. However, the Store Manager turned down her request, saying that it was against store policy to have juice at or near the register. 

One day in January, 2012, Atkins was working as the relief cashier while the shift cashier took her one hour lunch break.  While ringing up customers, Atkins began to experience the symptoms of a hypoglycemic attack (which typically include dizziness, sweating, and rapid heart beat), and needed to stabilize her blood sugar immediately.  As the sole employee in the store, she did not want to leave the cash register unattended, so she grabbed a bottle of orange juice from the store’s cooler and drank it. 

Although Atkins had her own orange juice in her personal cooler in the rear of the store, she did not want to leave the cash register unattended, so she took emergency action by removing the juice from the store’s cooler and drinking it, to prevent a threat on her life.  As soon as the medical episode was over, she paid for the orange juice.  If she had not drunk the juice, she could have experienced serious health consequences, such as a diabetic coma.  

Atkins told the District Manager what she had done, and that she believed she would have passed out if she did not drink the juice to stabilize her blood glucose level. However, she was fired for violating the store’s “grazing” policy, which prohibits employees from consuming merchandise before payment.

Atkins filed a charge of discrimination with the EEOC, and the EEOC attempted to reach a voluntary settlement with Dollar General through its conciliation process. When that process did not lead to settlement, in September 2014, the EEOC sued Dollar General on Atkins’ behalf, alleging that Dollar General violated the Americans with Disabilities Act by failing to accommodate Atkins’ disability.  Specifically, the company violated the ADA when it denied Atkins the “reasonable accommodation” of keeping her own bottle of juice at the register, and when it fired her for violating the store’s grazing policy.   The suit is EEOC v. Dollar General, U.S. District Court for the Eastern District of Tennessee, Knoxville Division, No. 3:14-cv-00441.

Under the ADA, an employee with a disability has the right to ask the employer to adjust or modify the job - called reasonable accommodations.  The employer is required to discuss the issue with the employee, engaging in an interactive process, to arrive at a workable solution.  The employer is required to grant the accommodation unless doing so would be an undue hardship (that is, a significant difficulty or expense).  See the EEOC’s "Questions & Answers about Diabetes in the Workplace and the Americans with Disabilities Act (ADA)." 

The legal question is whether a company is considered to be engaging in discrimination when it fires an employee for violating a company policy that it applies equally to all employees.  But what if the employee violated the policy due to her disability? According to published EEOC guidance, a company may always enforce certain standards, such as prohibitions on violence, stealing, or destruction of property, even if the employee claims she violated the policy due to her disability.  But the law requires an employer to be flexible when it comes to other policies, if making an exception would not be an “undue hardship.” See the EEOC's "Applying Performance And Conduct Standards To Employees With Disabilities.” 

A similar case against Walgreens is pending in California, Equal Employment Opportunity Commission v. Walgreen Co., --- F.Supp.2d ----, 2014 WL 1410311 (N.D.Cal.), 29 A.D. Cases 1031. It, too, involves a diabetic employee who was fired for violating the store’s anti-grazing policy. The employee, Josephina Hernandez, had worked for Walgreens for 18 years.  Like Linda Atkins, Hernandez told her employer that she had Type 2 diabetes. Walgreens allowed Hernandez to keep candy with her in case of low blood sugar, keep her insulin in the break room refrigerator, and take additional breaks to test her blood sugar or eat because of her diabetes. 

One day, while Hernandez was returning items in a shopping cart to shelves, she noticed she was shaking and sweating from low blood sugar. She did not have her personal candy with her and was in the magazine isle, so she opened a small bag of potato chips that was in her cart and ate some of them.  She went to pay for the chips at the cosmetic counter (where she had been instructed to pay for store items) but no one was there. Hernandez put the potato chips under the counter at her cash register and returned to restocking items. The Assistant Store Manager found the chips and asked whose they were. Hernandez said the chips were hers, and wrote up a statement saying that she ate the chips for her low blood sugar, and that she did not take the time to pay for them.  She was fired for taking the chips in violation of Walgreens's anti-grazing policy. 

The EEOC may have a more difficult time with this case than with the Dollar General Case. The major differences are that Atkins had specifically asked for permission to keep juice with her at the register and had been denied, that she was the only employee in the store at the time, that customers were waiting at the cash register, and that she paid for the juice immediately after consuming it.  

In contrast, Hernandez was one of many employees and was involved in restocking shelves when her hypoglycemic attack occurred.  She arguably could have sought out someone to pay rather than putting the chips under the counter and going back to stocking shelves. Given retailers’ ongoing concerns with employee theft, Walgreens may be able to demonstrate that it would be an undue hardship to permit even a disabled employee having a hypoglycemic attack to consume its merchandise without paying for it.  

On the other hand, a sympathetic jury might decide that a loyal, long term employee with a disability is surely entitled to some accommodation, such as not being terminated for a first offense of violating the anti-grazing policy.  

      - This blog entry was prepared by Elizabeth L. Newman.  You may reach her at