Wednesday, June 24, 2015

It May be Legal, or Maybe Not. Whatever.

Brandon Coats is paralyzed throughout 80% of his body. He is confined to a wheelchair, and suffers from involuntary muscle spasms as well as a gamut of other symptoms. To cope with his symptoms, Coats possesses a state-issued license authorizing his use of medical marijuana.

Despite his physical impairments, Coats was able to secure a customer service position answering telephones at DISH Network. There were no complaints about his performance. In May 2010, Coats’s supervisor informed him that he was required to report for drug testing. Coats voluntarily disclosed his medical marijuana use, including the fact that he possessed a valid state license and had a doctor’s recommendation. Nevertheless, his supervisor required Coats to undergo the tests, which were unsurprisingly positive for THC, a component of medical marijuana. Consequently, DISH terminated Coats in June 2010.

Coats filed suit, alleging that DISH violated Colorado state statute C.R.S. 24-34-402.5 prohibiting the discrimination or termination of employees for legal off-duty conduct. In most cases, C.R.S. 24-34-402.5 forbids employers from discharging employees on the basis of their participation in “lawful activities” off work premises or off working hours. DISH did not contend that Coats ever used medical marijuana while on the job, and so the pivotal issue was whether Coats’s medical marijuana use was a protected “lawful activity”. (As an aside, the Court did not explore, and the parties did not raise, whether Coats could have found protection under the American with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., which requires employers to provide reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it would impose an undue hardship on the employer.)

It is undisputed that all of Coats’s activities were lawful under Colorado law. However, marijuana use is still a violation of federal law – specifically the Controlled Substances Act, 21 U.S.C. § 844(a) (2012). Coats argued that the term “lawful activity” in the Colorado statute was never defined to include federal law, and therefore it should be interpreted narrowly to pertain only to state laws. DISH countered that a broad interpretation was appropriate as labor law is both federal and state in nature.

Eventually, Coats’s case wound its way to the Colorado Supreme Court, which unanimously ruled against him on June 15, 2015. The Court held that under the plain language of Colorado’s “lawful activities statute,” the term “lawful” refers only to those activities that are lawful under both state and federal law. Employees who engage in activities that are permitted by state law, but not by federal law, are not protected by the statute.

This result is troubling, although legally sound. Arguably, Colorado has been the most aggressive state in pushing the bounds of pro-marijuana reform, both medicinal and recreational. It is difficult to imagine that Colorado’s legislature intended only to make a symbolic gesture when they legalized medicinal marijuana in 2000. Moreover, the current administration has made it clear that they intend to focus its prosecutorial discretion on large scale drug trafficking, and are allowing state and local officials to regulate “small time use” such as Coats’s. Following the success of pro-marijuana ballot initiatives in Colorado and Washington, Deputy Attorney General James Cole explained, “Each case is going to rise and fall on its own unique facts, any of that is still in violation of the Controlled Substances Act of the federal law. We’re not interested in bothering people who are sick and are using it in the recommendation of a doctor. We are concerned with people who are using it as a pretext to become large-scale drug dealers.” One eminently reasonable interpretation of this statement is that the federal government has effectively decided to allow the states to individually permit the legal use of medicinal marijuana.

Yet Coats, despite 1) living under a state law that protects workers from employment discrimination or termination for off-duty “lawful activity,” 2) living under a state law where his marijuana use was fully legal and even actively licensed, and 3) living under a federal regime that has broadcast its intent to focus on large-scale drug dealers, still fell through the cracks of our legal system. This needs to change, but the solution is almost certainly legislative. Specifically in this case, the Colorado legislature will need to amend its statutes to account for those like Coats. But, more broadly, the federal government has an important role to play in resolving many of the inconsistencies between state and federal drug policy that still create confusion in many areas of law, including employment law.

Tuesday, June 16, 2015

"Take Your Dog To Work Day" -- Recipe for a Happy Work Place or Possible Disaster Area?


“Take Your Dog to Work Day” is Friday, June 26, 2015.  Although it sounds warm and fuzzy for employees to be able to bring Snuffy and Muzzles to work, pets in the office raise many questions regarding safety for employees and potential liability for employers.  And there’s also the issue of employee productivity.

“Take Your Dog to Work Day,” or "TYDTWDay," was created by Pet Sitters International and was first held in the United Kingdom in 1996 and in the United States in 1999.   It has since expanded to Canada, Australia and New Zealand.  Its original purpose was to raise funds for local shelters.

Some businesses, such as Google,  Procter & Gamble, and Amazon routinely allow their employees to bring their dogs to work. The concept is becoming more common, with companies seeing it as boosting employee morale, demonstrating to employees that the organization is sensitive to employees’ needs, and lowering stress in the workplace. Some employers see it as a way of encouraging their employees to work longer hours.  

But there are also a host of possible problems.  Hospitals, medical facilities, pharmaceutical companies, chemical laboratories, and food businesses should not host employee pets.  It’s noteworthy, however, that Ben and Jerry’s is known to allow employees to bring pets to work. Presumably the pets are allowed in the administrative offices, not where the ice cream is made.   

What are the legal implications to allowing dogs at work?

The first issue is safety.  What if a dog bites an employee?  Before allowing pets in the workplace, the employer must be sure that the pet owner has insurance that will cover any injuries caused by the pet. 

Let’s start with dog bites.  Normally the dog’s owner would be liable if the dog were to bite someone.  But it’s also possible that the employer could be held jointly liable.  It’s also possible that the employee could file a Worker’s Compensation claim, since the injury occurred in the workplace. It might even be prudent for the employer to require the pet owner to sign a document agreeing to indemnify the employer against any costs of defending a dog-bite case.  

Dog bite cases are governed by state law, so it would be important for anyone concerned about this issue to consult a lawyer in the state where the employer is located.  One issue addressed by the courts is whether, if the employer allows the employee to bring the dog to work, the employer is considered the dog’s “keeper.” In Connecticut, for example, an "owner" or "keeper" of a dog is liable for injuries the dog causes, but two cases held that allowing an employee to bring a dog to work does not make the employer a keeper of the dog.  See LaVoy v. Rosenthal, et al., 1999 Conn. Super. LEXIS 3250; Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992). However, the courts concluded that a plaintiff could bring a claim for negligence against the employer for a dog bite occurring at the workplace.

What it means to be a dog's "keeper" was explained in Kircher v. Baugess, Court of Appeals of Ohio, Twelfth District, Madison County. October 15, 2013 (2013 WL 5636343).  Michael Kircher and Brittnie Blackmon were classmates at a pre-veterinary technology school.  Brittnie brought in her dog “Ace” to act as animal patients. The idea was that students in the class would have practice interacting with the dog, giving him a health exam and bathing him.  During the session, while Michael was petting Ace, the dog bit Michael on his face above his lip. His injuries required medical attention and left a permanent scar.

As Michael and Brittnie were minors, Michael’s parents sued Brittnie’s parents for the damage done to Michael by Brittnie’s dog.  The question was whether, since the dog was in Michael’s care at the time of the injury, Brittnie’s parents were “strictly liable,” meaning that if the dog caused the injury, they would be liable even if Brittnie was not negligent.  Under Ohio law, “the owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog...”  The definition of a “keeper” was the person having “physical charge or care of the dog.” 

Michael argued that he was not the “keeper” at the time Ace bit him. He testified that the students in the class would take the dog and place it on an adjustable table and then secure it with a noose around its neck. He said that  “someone always had to keep an eye on the dog, keep a hand on the dog and make sure the dog doesn't jump off the table.” He also explained that once secured, the students would “do the general parameters” and then bathe and dry the dog, and that it was the students' duty to keep the dog calm and to follow all prescribed safety measures.

On the day of the incident, Michael approached Ace, who was already on the examination table and secured in the noose. Michael began to pet Ace on the head to calm him down because he believed that Ace appeared to be “a little nervous.” Another student was positioned near Ace's midsection area petting and hugging the dog when Ace suddenly lunged and bit Michael’s face.

Michael testified that he was unsure as to where Brittnie was located at the time he was bitten, but thinks that she may have been petting Ace on the neck.

Brittnie’s testimony was that she and another student placed Ace on the table, and then Michael put on gloves and joined them.  Brittnie realized that she forgot her clipboard, so she left the table and walked across the room.   When she was 35–40 feet away from Ace, she saw that Michael had been bitten.

The Court concluded that Michael was a “keeper” of Ace as contemplated by the statute, because he testified that he thought Ace was acting nervous and that he felt compelled to calm the dog by petting his head. Therefore, Michael’s actions in the moments preceding the incident indicate that he was exercising physical care and charge over the dog.

Another instructive case was Smith v. Elick,  763 N.W.2d 277 (Court of Appeals of Iowa. 2009).  Kelly Smith worked at Kunkel's Sport Center, Inc. (Kunkels) with Todd and Natasha Elick.  The Elicks worked as employees but were also the sole shareholders of Kunkels. For years the Elicks brought their dogs to work with them, finding that having the dogs at work was good for business as it created a comfortable, family-oriented environment at the store. The Elicks also used their dogs in television and print advertisements.

One day, when the dog (an Akita) was secured him in the backroom with a leash, Smith went into the back room to get cookies, which Kunkels provided for customers. While Smith was moving cookies, the dog attacked her, causing substantial injuries including pain, disability, loss of income, and emotional distress. Smith filed a workers' compensation claim. The workers' compensation insurance carrier for Kunkels paid Smith temporary total disability and medical payment benefits.

But workers compensation does not provide damages to the injured individual, so Smith sued.  The lower court ruled that workers’ comp was the exclusive remedy, so Smith could not receive monetary damages.  This ruling was sustained on appeal.

Employers considering allowing employees to bring their dogs to work should consider requiring employees to provide insurance covering any damage or injury by the dog.  The employer should review the policy to assure that there is not an exception if the dog is brought to a work site.

What about property damage done by the dog, such as damage to the premises or to the personal property of other employees?  The employer could require the pet owner to sign an agreement to cover any damages.  

Does the landlord at the work site permit pets?  Many office buildings do not allow employees to bring in pets (of course, this does not apply to service animals).  So the employer should check the lease.

Another issue is disability discrimination.  While the courts have not yet found an employer liable for issues associated with allowing or prohibiting pets, this is an area to be aware of when considering a pet policy. Cases in the past have covered whether fear of animals can be considered a disability in animal-friendly workplaces and also whether an employee has the right to bring a dog to work, relating to an accommodation for stress and/or anxiety.

While these cases have shown the courts’ reluctance to find liability under strict liability statutes or under ADA accommodation laws, an employer should still take into account the cost and expense in having to defend such suits when deciding whether to permit pets in the office.

What about the health concerns of other employees?  Some people are allergic to animals. Some of these allergies cause rashes, temporary breathlessness, panic attacks, and even severe respiratory disorders. Therefore, consideration must be given to the Americans with Disabilities Act (ADA) and the Occupational Safety and Health Act (OSHA).  An animal allergy might be considered a disability under the ADA if it impairs a “major life activity,” and an employee who has significant problems breathing around animals would have a viable claim. Any employee with such concerns must be permitted to work in another area to assure no contact with the animals. 

However, the allergy must be severe to be covered by the ADA.  This issue was considered in Gallagher v. Sunrise Assisted Living, 268 F.Supp.2d 436 (E.D. Pa 2003). Gallagher was hired by Sunrise as a concierge in 1997.  Sunrise allowed pets in its facilities, and mandated that there be at least one dog in each of its residences due to the alleged therapeutic value of animals to seniors.  Gallagher’s desk was located on the main floor, and her primary responsibilities included manning the front desk, greeting visitors, answering the telephones, taking messages and monitoring the bistro area of the lobby, including keeping it clean and tidy.

At some point during her tenure at Sunrise, Gallagher realized she was allergic to animals. She asked Sunrise's then Executive Director to assure that the pets, to the extent possible, be kept away from her desk in order to minimize her allergies. The Executive Director agreed, and asked the staff to keep pets away from the immediate vicinity of Gallagher's work area and keep the area vacuumed and free of pet hair.

Two years later, a new Executive Director was hired, and the employees no longer followed the previous Executive Director’s request to keep pets away from Gallagher.  Her allergies exacerbated, and her entreaties to management did not improve the situation. Gallagher resigned and filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”).  In it, she alleged that Sunrise failed to accommodate her allergies as a disability under the Americans with Disability Act (“ADA”).  She then filed suit, alleging Sunrise violated the ADA by denying her a reasonable accommodation for her allergies, thereby forcing her to resign her employment.

The Court held that Gallagher was allergic to dogs, and suffered impaired breathing when exposed to them.  However, it found that Gallagher could use an inhaler, and her allergy was not so debilitating that it limited Gallagher’s ability to hold a conversation or move about freely

Since the Court found that there was no evidence to support a finding that Gallagher qualified as disabled as defined by the ADA, Sunrise was not required to accommodate her allergies.

Even if the employee does not have health issues that rise to the level of an ADA claim, some workers might be genuinely scared of animals and feel stressed out around them. For such individuals a pet in their workplace is not a calming presence, but rather a constant threat to their wellbeing and safety. 

There are also health concerns among animals.  Dog boarding and grooming facilities require that animals have certain vaccinations before they may be left where they are in contact with other animals.  If multiple animals are coming together in an office, their vaccinations must be shown to be up to date before being permitted to participate.  

What about animals that become disruptive in the workplace?  All pet owners who wish to bring animals to the workplace must be advised that if their animal is disruptive, the employee must remove the animal from the work place and be charged with personal vacation time for the remainder of the day. 

Finally, what about employee productivity?  According to Julie Franklin, a Procter and Gamble Communications specialist quoted in a USA Today report, "Having pets in the office boosts morale,. It's a definite stress-reliever. It makes our employees healthier and calmer, which means they're much more productive."  According to Dog Daily,  “Having a dog -- or any pet -- around has a soothing and mood-lifting effect on people,” explains Lori Meyer, a pet sitter and dog walker in the Los Angeles area. “When people are happy and calm, they are more productive. Allowing people the opportunity to meet and interact with their co-workers’ pets increases the bond and camaraderie between co-workers, leading to a cohesive team atmosphere and a positive work environment.”

The website "Dog Friendly" reports that in the Washington, DC area, only Maryland employers Empower IT Inc. of Bethesda and the American Hiking Society of Silver Spring allow dogs in their offices year-round. The owners of Empower IT Inc. bring their own dogs to the work Monday through Thursday, and on Fridays, “we allow other dogs in the office but we do try to limit the number we have since we don't want any ‘dog fights’. " 

The American Hiking Society, with nine employees, often has between two and four dogs in the office.  One employee commented, “Being able to bring my dogs to work is the only reason I don't mind working crazy hours and overtime - if they are in the office with me, I'm not in a hurry to go home and take them on a walk.” See Dog Friendly. 

Overall, bringing Fido to work may make for a happy and productive work environment.  But employees and employers should take care with regard to the potential legal issues involved.

This blog post was written by Elizabeth Newman, enewman@kcnlaw.com.

Friday, June 12, 2015

Pollo Campero food safety whistleblowers featured in El Tiempo Latino

Today, my food safety whistleblower clients, Elsy Ortega and Evelin Iglesias, are featured in a page 1 story in El Tiempo Latino.


Ortega and Iglesias worked as supervisors in Pollo Campero restaurants in Wheaton and Gaithersburg, Maryland, respectively. They report that in 2013, managers ordered them to wash, prepare and serve expired and moldy chicken. Each of them refused and each of them got fired. 

They retained Silver Spring attorney David Vega and myself to file whistleblower complaints with the Occupational Safety and Health Administration (OSHA). The complaints claim that Pollo Campero violated the employee protections in the 2011 Food Safety Modernization Act (FMSA).

If OSHA finds that their terminations violated FMSA, OSHA can order Pollo Campero to reinstate them, change company policies, and pay compensatory damages and attorney's fees.

That OSHA still has not investigated Ortega's and Iglesias' 2013 complaints shows that Congress has failed to provide OSHA with enough funding to enforce all 22 whistleblower protection laws. 

Still, FMSA is a powerful law that protects 20 million American workers employed in the food industry.

By Richard Renner  

Wednesday, June 10, 2015

IMBALANCE IN DISABILITY DISCRIMINATION CASES

Plaintiffs’ employment lawyers – unlike their defense counterparts -- seemingly face two challenges litigating cases: judges ignoring facts in the record which would tend to support the plaintiffs’ claims, and giving more credibility to the testimony of employers’ witnesses than to employees’ witnesses. This lopsidedness is pronounced especially in cases involving disability discrimination, where the outcome is dependent on an in-depth analysis of all the facts in the record and according credibility where it is due – whether to the employer or employee. Recent disability discrimination cases show just how imbalanced the scales of justice are in these two respects.

Petitioner v. Department of Air Force, EEOC Petition No. 0320150024 (May 19, 2015) and Equal Employment Opportunity Comm’n v. Ford Motor Co., 782 F.3d 753 (6th Cir. April 10, 2015) both involve claims of disability discrimination based on denials of requests for reasonable accommodation.  In order to prevail on a claim of disability discrimination for an employer’s failure to accommodate the disability, the employee must show that he or she is a “qualified individual with a disability; that is, that he satisfies the requisite skill, experience, education, and other job-related requirements of the position he holds or desires and can perform the essential functions of the position with or without reasonable accommodation.” 29 C.F.R. §§ 1630.2(m), 1630.3. After the employee makes that requisite showing, the burden shifts to the employer to show that granting the reasonable accommodation would cause the employer an undue hardship.  With advances in technology, requests for telework as a reasonable accommodation have become increasingly prevalent.  The most significant challenge for employees who request telework as a reasonable accommodation consists of proving that the employee can perform the essential functions of his or her position while teleworking. Who knows more about what the essential functions of the employee’s position are: the employee or the employer? And which party’s evidence of those essential functions is a judge more likely to credit: the employee or the employer?

In Department of Air Force, the employee asked for, among other things, telework as a reasonable accommodation for his Obsessive-Compulsive Disorder (OCD). The Air Force denied his request and ultimately removed him from service due to unacceptable performance. The employee appealed to the Merit Systems Protection Board, claiming disability discrimination as an affirmative defense to his removal. At the initial hearing, the MSPB judge upheld the Agency’s removal and found no discrimination because the requested accommodation would not allow the employee to perform the essential functions of his position as a Patent Attorney. See Hersko v. United States Air Force, MSPB No. CH-0432-13-0493-I-I (April 2, 2014). The MSPB judge concluded that, “[i]n light of the appellant’s poor pre-PIP performance, his difficulty to focus on his work, the absence of interaction with his supervisor and his coworkers while teleworking, his unexplained periodic and numerous absences from his office during his work day, and his actual absence from home while teleworking, I find that teleworking was not an accommodation that would assist the appellant in performing the duties of his position.” Id.

After the full Board MSPB denied the employee’s petition for review, Mr. Hersko appealed to the Office of Federal Operations. Concurring with the final decision of the MSPB finding no disability discrimination, the Commission stated, “we emphasize that the MSPB AJ [Administrative Judge] credited the testimony of several management officials in finding that Petitioner had previous difficulties with time and attendance, telework, and time and attendance during telework. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.” Department of Air Force, EEOC Petition No. 0320150024, at *4. The Commission further noted that the “MSPB AJ expressly characterized S2’s testimony as ‘straight forward and consistent,’ and that the MSPB AJ “cited documentary evidence supporting the testimony of the management officials.” Id.

What is glaringly absent from both the analysis of the MSPB and the Commission is any recognition of the medical evidence submitted by Mr. Hersko’s doctors that telework was a reasonable accommodation for his OCD. Mr. Hersko’s psychiatrist had submitted a letter to the Agency, stating that Mr. Hersko’s medication caused him to tire easily, and that this fatigue, “combined with the appellant’s high level of anxiety and his difficulty controlling his worries, could make it difficult for the appellant to concentrate and focus on his job duties.” Hersko, MSPB No. CH-0432-13-0493-I-1. After Mr. Hersko made his request for reasonable accommodation, Mr. Hersko’s supervisor asked the Commander of the Occupational Medicine Flight to provide information on how his medical condition affected his ability to perform the essential functions of his position. The Commander responded that Mr. Hersko had OCD with associated depression and insomnia. He further stated that the “OCD could occupy significant amounts of the appellant’s time during the day and could reduce his productivity, but also could contribute to highly detailed and technical work.” Id. He also said that Mr. Hersko “requested commonly used modifications for someone with OCD:…teleworking that could increase his sleep time because he would not have to commute a total of two hours per day.” Id. Notwithstanding this clear evidence in the record, the MSPB AJ stated, “[n]either doctor addressed accommodations for the appellant’s OCD-associated depression.” Id.

Following the MSPB AJ, nowhere in its Decision did the Commission acknowledge the evidence of Mr. Hersko’s psychiatrist or the Commander. Rather, the Commission referred to the following facts found by the MSPB AJ: “Petitioner’s observation of the Agency’s duty hours was worse than when he was present in the office…Prior to his 2012 PIP, Petitioner did not always attend to his duties, spent excessive time in the break room or in the exercise facility, spent considerable time wandering the hallways and away from his office with his whereabouts unknown, and was observed sleeping in his office.” Department of Air Force, EEOC Petition No. 0320150024, at *1. Concurring with these factual findings, the Commission disregarded Mr. Hersko’s psychiatrist’s statement to the Agency that Mr. Hersko’s OCD caused him to experience high levels of anxiety and to have difficulties concentrating and focusing on his job duties, as well as the Commander’s recommendation that telework could address Mr. Hersko’s fatigue.

It`s surprising that the EEOC would permit an Agency to use a person’s disability against them in finding performance issues, when a reasonable accommodation exists that would alleviate those performance issues and enable the employee to perform the essential functions of his or her positon.  In fact, Judge Moore argued to the contrary in her dissent in Ford: “It would be inconsistent with the purposes of the ADA [Americans with Disabilities Act] to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated.” EEOC v. Ford Motor Co., 782 F.3d at 777.

In Ford Motor Co., Ms. Harris asked Ford for telework to accommodate her disability of irritable bowel syndrome (IBS). Ford denied her request, claiming that her position as a resale buyer of steel required regular in-person interaction with her co-workers, such that regular and predictable attendance in the workplace was an essential part of her position. Id. at 758. The EEOC appealed the district court’s grant of summary judgment to Ford. After a three-judge panel of the Sixth Circuit ruled in favor of the EEOC (opinion by Judge Karen Nelson Moore), the full court of appeals vacated the three-judge panel ruling and affirmed the district court’s grant of summary judgment to Ford, finding no disability discrimination because the requested reasonable accommodation of telework would not have enabled Ms. Harris to perform the essential functions of her position. What is most significant about the Ford case is Judge Moore’s blistering dissent, criticizing the full panel for its failure to undergo the very fact-intensive analysis required of disability discrimination cases when it did not consider facts in the record brought forward by Ms. Harris, and for its propensity to side with Ford by failing to give to Ms. Harris the required inferences from the facts in her favor. Id. at 771.

The Sixth Circuit accepted Ford’s contention that it could not grant Ms. Harris’s request for telework of four days a week, because of the “high level of interactivity and teamwork” involved in her position. Ford, 782 F.3d at 758. In accepting this contention, the Sixth Circuit looked at Ford’s evidence that other resale buyers of steel only teleworked one day per week. Id. at 763. What the Sixth Circuit ignored, and what Judge Moore pointed out in her dissent, was evidence in the record showing that Ms. Harris had requested up to four days a week telework, which was consistent with Ford’s telework policy. Id. at 771. As Judge Moore stated, “[i]t is crucial to begin with what Harris actually requested.” Id. Ms. Harris was not demanding four days a week telework, despite the Sixth Circuit’s summary and erroneous conclusion to the contrary.

Judge Moore also pointed out that the majority failed to consider the EEOC’s evidence which directly contradicted Ford’s claim that the teamwork functions of Ms. Harris’s job required her to be physically present in the office. The first piece of evidence was Ms. Harris’s declaration that she actually performed 95% of her job on the phone or through email, even when she was physically working in the office. The second piece of evidence was that Ford allowed other resale buyers to telework, which suggested that, in order to perform effectively, resale buyers did not need to be prepared to handle unexpected problems through face-to-face interactions every day of the week, as Ford claimed they did. Id. at 772.

Judge Moore summed up the problem quite well: “What appears to be driving the majority’s unwillingness to give any weight to Harris’s own testimony is an unstated belief that the employee testimony is somehow inherently less credible than testimony from an employer. Employers, just as much as employees, can give testimony about whether a particular function is essential that is ‘self-serving,’ or not grounded in reality.” Ford, 782 F.3d at 773. Judge Moore understands the imbalance that is nearly omnipresent in disability discrimination cases.

Written by Valerie Chastain

Monday, June 1, 2015

PROPORTIONAL DISCOVERY: THE NEW RULE 26(b)(1)


Barring unforeseen intervention, in just six months the landscape of discovery in federal civil cases will change.  Amendments to the Federal Rules of Civil Procedure, given final approval by the Supreme Court on April 29, 2015, will go into effect December 1, absent Congressional action blocking this change. The changes to the rules of Discovery are substantial.

In general, the changes to the rules governing discovery, Fed.R.Civ.P. 26-37, reflect a concerted effort to rein in discovery, to prevent, as the Advisory Committee says, “over-discovery.” (The Advisory Committee, in Notes conveyed to Congress with the Adopted Rules are available here).    The Advisory Committee proposed several changes, now adopted, intended to shrink discovery: the number of interrogatories allowable under Rule 33 will be reduced from twenty-five to fifteen.  The number of admissions will similarly be reduced to twenty five. [Requests to admit the genuineness of a document will be expressly exempted from the rule.] Depositions will no longer be presumptively “one day of seven hours”; their time will now be limited to just six hours.   Boiler-plate objections to document requests under Rule 34 will no longer be entertained: objections must be stated with specificity and must indicate whether responsive materials are being withheld on the basis of the objection.

Perhaps the most significant change, however, has been made to the definition of the scope of discovery in Rule 26(b)(1).  The present rule defines this expansively:

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).

Fed.R.Civ.P. 26(b)(1). The proposed rule, adopted by the Supreme Court, however, provides that:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues and whether the burden or expense of the proposed discovery outweighs its likely benefit.  Information within this scope of discovery need not be admissible to be discoverable.

Fed.R.Civ.P. 26(b)(1) (adopted but not enacted).  Two standards govern whether information is discoverable under the newly-amended rule 26(b)(1): whether it is  (1) relevant to a party’s claims or defense and (2) proportional to the needs of the case.  Gone is the “reasonably calculated” language that functioned to render the scope of discoverable material virtually unlimited  in the past.  Relevance now is limited specifically to the “claim and defense” of any party, that is, presumably, to the content of the Complaint and Answer. See Advisory Committee Notes (2013), pp. 23-24. Nevertheless, while this  may in itself serve to narrow the scope somewhat, it is the proportionality language that is likely to have a still greater effect on narrowing the breadth of discovery.

The requirement that proportionality be used to limit the scope of discovery is not new to the Federal Rules.  The Advisory Committee has, in fact, moved the proportionality requirement from Rule 26(b)(2)(iii) (“Limitations”), adding and rearranging the requirements there.  Whereas the present rule 26(b)(2)(iii) lists the following factors as considerations in deciding whether “the burden or expense of the proposed discovery outweighs its likely benefit”:

A. Needs of the case;
B. Amount in controversy;
C. Parties’ resources;
D. Importance of the issues at stake in the litigation;
E. Importance of the proposed discovery in resolving the issues.

The proportionality requirement in the new Rule 26(b)(1) changes what it has taken from 26(b)(2), replacing the controlling cost-benefit analysis of the present 26(b)(2) with a somewhat different analysis.  Requested discovery must be “proportional to the needs of the case” considering the:

A. Importance of the issues at stake;
B. Amount in controversy;
C. Parties’ relative access to relevant information;
D. Parties’ resources;
E. Importance of the discovery in resolving the issues;

as well as “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Cost-benefit analysis remains a part of the analysis, but it does not control. Rather, the requested discovery must be “proportional” to the substance of the litigation, whether judged in terms of “the issues at stake” or the amount in controversy.  It must be proportional to the burden the request places on the resources of the parties.  How important the requested discovery might be in resolving the issues must be considered, as must “the parties’ relative access to relevant information.”

This last, the “parties’ relative access to relevant information,” is new to the rule.  The Advisory Committee explains that this “new text” makes explicit some considerations that are implicit in present Rule 26(b)(2)(C)(iii):

Some cases involve what often is called “information asymmetry.”  One party – often an individual plaintiff – may have very little discoverable information.  The other party may have vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve.  In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.

Advisory Notes 2013, sub Rule 26(b)(1), pp. 20-21.  The “and properly so” with which this Note ends suggests that the Advisory Committee recognizes that the burden of discovery will itself be asymmetrical, commensurate with the asymmetry of information inherent in “some cases.”  The asymmetry of burden is to be expected and not, in itself, a basis for challenge.  Nevertheless, we might wish that the Advisory Committee had more explicitly articulated the principle that the burdens of discovery need not –  indeed should not in “some cases” –  be evenly distributed between the parties.

Subordinating the cost-benefit analysis that controls in the present rule to a proportionality analysis appears designed to emphasize that “monetary stakes are only one factor, to be balanced against other factors” in discovery.  Id., p. 21.

[T]he rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.  Many other substantive areas also may involve litigation that seeks relatively small amounts of money, or no money at all, but that seeks to vindicate vitally important personal or public values.

Id., p. 22 (quotation omitted).  The cost-benefit analysis gives way in the new rule to consideration of a proportion, a ratio of sorts, between, not simply the amount in controversy, but, in some cases, the issue in controversy, and its importance, whether for the individual or for the public.  See The Sedona Conference Commentary on Proportionality in Electronic Discovery, January 2013, p. 13 (citing inter alia, Disability Rights Council of Greater Washington v.. Washington Metro. Transit Auth., 242 F.R.D. 139, 148 (D.D.C. 2007) as an example of public policy issues favoring disclosure in discovery).

Proportionality under the new Rule 26(b)(1) may cut both ways.  It will certainly be used to limit the breadth of discovery to material relevant to the claims and defenses in the case.  But because the amended rule subordinates the present cost-benefit analysis to a reasonable consideration of the relationship between the material requested and what is at stake – allowing that “what is at stake” to be defined variously on philosophical, social or institutional terms (Advisory Notes (2013), pp. 21-22) – it is unlikely to function only as a protection for well-funded corporate parties against suits brought by individuals.  Even a pro se plaintiff may succeed if she is able to make clear to the court the relative importance of the discovery sought against the measure of the substantive issue at stake.  The landscape of discovery will change on December 1, but not in a way that should forecloses opportunity to either party.

By Mary Kuntz