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.