Employers, don't let that "protected" employee hold you hostage.

Posted by Robin E. Shea on December 07, 2012

Remember that Supreme Court decision involving alleged retaliation based on an oral complaint of violation of the Fair Labor Standards Act? The plaintiff in the case is now going to get a jury trial.

In its 2011 decision in Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court found that an informal, oral complaint could be "protected activity" under the FLSA and remanded the case back to Wisconsin, whence it came. On remand, a federal judge found that the employee had engaged in protectedHostage Training.Marines.Flickr_-_DVIDSHUB_-_Marines_train_to_rescue_hostages_in_hostile_situations_(Image_1_of_6).jpg activity but also found that there was not enough evidence that he was terminated because of it, so the judge granted summary judgment to the employer.

The U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, has now reversed on the causation issue, which means that the employee will get a jury trial on his claim of retaliation.

Both the district court and the appeals court agreed that the employee had engaged in legally protected activity, by making repeated complaints (and threats to sue) over the placement of time clocks in the facility. He contended that the clocks were too far away from the area where employees had to don and doff their gowns and prepare to work. (The donning and doffing time was compensable.)

The company contends that the employee was terminated for repeated violations of its time-clock punching policy, for which he received several prior warnings.

The district court and the Seventh Circuit parted company on the "causation" issue. The Seventh Circuit found that there was plenty of reason for a jury to find that the plaintiff was terminated because of his legally protected complaints. (Because this was an appeal of a summary judgment decision, the Seventh Circuit did not decide whether there was retaliation but only that there was enough evidence of it for the case to get to a jury.)

And that's what I want to talk about today -- "causation" in a retaliation case. What do you do if you, as an employer, want to take action against an employee after he or she has taken some type of legally protected action*? Do you just have to live with whatever the employee chooses to dish out?  How do you determine in advance whether the decision will survive a retaliation claim?

*"Protected activity" can include an internal complaint of discrimination, a discriminatory harassment complaint, an EEOC charge, assistance to another employee who alleges discrimination or harassment, protected concerted activity, a workers' compensation claim, a complaint that the time clocks were too far away from the donning and doffing area and that was illegal . . . you name it.

A few guidelines follow, but first, four general rules that will always apply:

GENERAL RULE NO. 1: You can't be liable for retaliation if you didn't know about the protected activity. Kind of obvious, I know, but people forget. If your employee, Joe, called in sick and secretly filed an EEOC charge on December 1, you fired him on December 10, and on December 15 you learned of the charge for the first time after it arrived in the mail, then the termination may be a lot of things, but it was not retaliatory. How can you retaliate against Joe for filing a charge when you didn't even know he had filed the charge? On the other hand, if you heard through workplace gossip on December 9 that Joe was really at the EEOC instead of home recuperating from the flu, then you won't have the "ignorance is bliss" defense. (You may still be able to terminate him for giving a false reason for his absence, but that won't be nearly as easy to defend, especially when the true reason -- which you knew -- was that he was at the EEOC.)

GENERAL RULE NO. 2: You are not a hostage to an employee who has engaged in protected activity. Employees who -- for example -- file EEOC charges while they are still employed often seem to think they have a "shield of invulnerability" from any further discipline or other adverse action. Not true. Yes, an employer must be very cautious in taking action against an employee it knows has engaged in protected activity. But that doesn't mean the employee can get away with being a jerk, or insubordinate, or not doing her job. All it means is that the employee can't be fired for filing the charge.

Superman.jpg"Since I filed that EEOC charge, I can leap tall buildings at a single bound! Oh, darn, I forgot about the kryptonite."

GENERAL RULE NO. 3: Before you act, make sure you would have taken the same action against your best employee who did the same thing. Examine your conscience: if this were your favorite employee, and he had done the same thing, would you treat him the same way that you want to treat Joe? If so, then you are probably on solid ground. If not, then back off. You usually won't go wrong being consistent.

Cat and dog.JPGIf you wouldn't fire these lovable pets for doing the same thing, then don't fire the "protected" employee, either.

GENERAL RULE NO. 4: Consult with employment counsel before terminating, or even disciplining, an employee who you know has engaged in legally protected activity. This is not a sales pitch, I promise. There are at least two good reasons to consult with counsel in advance: (1) a good lawyer will "cross-examine" the decisionmakers and ensure in advance that the decision is defensible (or advise you not to go forward with it), and (2) all of your discussions with the lawyer will be protected by attorney-client privilege.

With those preliminaries, here are some of the reasons that Mr. Kevin Kasten is going to get a jury trial on his retaliation claim:

1. No blissful ignorance with this employer. There was no question that the employer in the Kasten case was aware of his complaints because he had made them directly to the employer.

2. The complaints were apparently considered by the employer in making the termination decision. Well, duh, right? The Human Resources manager testified that Mr. Kasten's protected activity "likely" was discussed when management decided whether to terminate his employment. "Likely"? Of course it was discussed! They would have been fools if they hadn't. How can you "examine your conscience" (General Rule No. 3) if you don't acknowledge the protected activity? You can't -- it is impossible. This acknowledgement by itself would not be evidence of retaliation, but as you'll see there was a lot more going on in Mr. Kasten's case.

3. A supervisor (allegedly) made a (possibly) threatening statement. When Mr. Kasten was about to be suspended for his fourth violation of the time clock policy, and after he had made complaints about the placement of the time clocks, a supervisor allegedly told him, "just lay down and tell [management] what they want to hear, [they] can probably save your job." The court said that a jury could interpret this as a warning to Mr. Kasten to back off on his "protected" complaints.

And, yes, if you're like me, you would have interpreted this alleged statement to mean, "Just go in and tell them you're sorry that you never punch in like you're supposed to, and that you'll do better from now on -- they probably won't fire you." Unfortunately for the company, at this stage of the proceedings, the court had to view the facts in the light most favorable to Mr. Kasten. Mr. Kasten also alleged that he said in the suspension meeting that the placement of the time clocks was illegal. (The company denies this.)

4. Suspicious timing. This was probably the most damning part, from the company's point of view. Mr. Kasten's suspension (with the alleged "threat") took place on December 6. On December 9, a Saturday, "management received an email indicating that Kasten had inquired about class action suits regarding time clock punches." On the following Monday, December 11, Mr. Kasten was fired while still on suspension, and the time clocks were moved to a better location that same day. As timing goes, you can't get much worse than that.

Donald_Trump.jpg"You accuse me of breakin' the law? You're FIRED."

5. "Similarly situated" employees were treated more leniently. Mr. Kasten had some evidence that other employees who had missed punches but had not complained about illegal activity were not handled with as much "dispatch" as was Mr. Kasten. See General Rule No. 3.

6. Mr. Kasten himself was treated more leniently before he complained. According to his evidence, he was allowed to miss punches all the time before he started complaining that the placement of the time clocks was illegal. After he complained, he was written up for every missed punch. It's possible that the company cracked down on all missed punches after finding widespread abuse of the policy. If so, that could be a defense. But it was tough for the company to establish this when Mr. Kasten also (allegedly) had No. 5 working in his favor.

7. The company messed up in responding to an administrative complaint and didn't make a correction until Mr. Kasten pointed it out. Please see my General Rule No. 4 about consulting with a lawyer. (For all I know, this company did consult with a lawyer, but I doubt it, for the reasons that follow.) Mr. Kasten's termination paperwork said that he was fired for violating the time clock/missed punch policy. OK. After his termination, Mr. Kasten filed a complaint with the Wisconsin Equal Rights Division, and the company submitted a position statement. The position statement said that Mr. Kasten was fired for violating the Attendance Policy. In fact, Mr. Kasten did not have enough absences to warrant termination under the Attendance Policy. It was only after Mr. Kasten pointed this out to the agency that the company made a correction.

Employers, whatever you say to an administrative agency can and will be used against you in a court of law. You need to be sure that your explanations are consistent with prior documentation including the termination paperwork, prior discipline, anything you might have said to a union or to your state's unemployment agency, and everything else. If you offer "shifting reasons," as the courts like to call it, that is some evidence that the stated reason for the termination is a pretext (cover-up) for an illegal motive.

Jack_Webb_Harry_Morgan_Dragnet_1968.JPG"You better be sure you can substantiate that, ma'am."

Try not to make substantive mistakes in anything that you file with an administrative agency. But if you do slip up, go ahead and make the correction as soon as possible after you discover it. Don't wait for the employee to point it out. If you do, it looks like you were trying to get away with something.

And it helps to provide the agency with a written explanation for the error. For example, "We apologize for our error and any confusion it might have caused. The position statement was drafted by our new Human Resources Manager, who had been on the job only one week and was not yet fully familiar with our policies and procedures. After discovering this error, we reviewed the entire position statement to make sure there were no further errors, and we have verified that everything else in the original position statement is correct." 

Now, all that having been said, I did not consider Saint-Gobain's error to be fatal, just because the termination paperwork -- filled out at the same time as the termination and therefore pretty reliable -- indicated the correct reason. And it's possible (nay, likely) that the company didn't even look at the position statement again after they sent it in. If so, there was no way they would have realized there was a mistake until after Mr. Kasten pointed it out. But this illustrates how important it is to get your facts right in responding to an administrative complaint.

(By the way, this same rule applies to the employees who file complaints. If your case goes to litigation, the company will get to see what you submitted, and if your story has changed, they can use that against you, too.)

"It could be that the purpose of your life is only to serve as a warning to others."

Image credits: Wikimedia Commons.

Roundup of Supreme Court employment cases -- right here!

Posted by Robin E. Shea on October 05, 2012

All right, kiddies. My posts over the last few weeks have been juicy and entertaining. (Or as juicy and entertaining as employment law can get.) But summer is over, and it's time to buckle down.

Girl texting at school - fall.jpg

"I h8 school!"

The Supreme Court of the United States (aka "SCOTUS") began its new term this past Monday, and it will be reviewing at least four employment cases, as well as two non-employment cases that will have an impact on employment litigation. (Hat tip to Bloomberg BNA. Paid subscription required.)

Here's a rundown on the cases that the Court has agreed to hear.

Do you have to have authority to hire fire, demote, or discipline to be a "supervisor" under Title VII?

In Vance v. Ball State University, the U.S. Court of Appeals for the Seventh Circuit* said you do, but other courts have disagreed. The plaintiff in Vance alleged that she was racially harassed by two people who really were supervisors, as well as another employee who may or may not have been. This last person was really important because there wasn't much evidence that the "true" supervisors had harassed her but a lot of evidence that this third person did.

*The Seventh Circuit hears appeals from federal courts in Illinois, Indiana, and Wisconsin.

The definition of "supervisor" is important because if the harasser is not a "supervisor," then the employer is not liable unless it knew or had reason to know about the harassment and failed to act reasonably to stop it. On the other hand, if the harasser is a "supervisor," the employer is strictly liable unless it qualifies for the  "Faragher/Ellerth" defense.*

*At the end of this post, I have a quick and dirty example of how this defense works, just in case you're not familiar with it.

The Seventh Circuit affirmed summary judgment for the university, in part on the ground that this one bad lady was not a "supervisor" because she did not have authority to hire, fire, demote, or discipline the plaintiff.

Oral argument is scheduled for October 10 (Tuesday).

Can you defeat an FLSA collective action by making an offer of judgment to the only named plaintiff before the class has been certified?

(Note to class/collective action nerds: I realize I'm being sloppy by combining "class" and "collective action" terminology here, but I don't know any other way to make myself intelligible.)

Here's the story. A plaintiff sued her employer, alleging that the employer violated the Fair Labor Standards Act by deducting for meal time in which she and her co-workers were allegedly required to work. If true, this would be a no-no. The FLSA allows plaintiffs to bring lawsuits "on behalf of themselves and others similarly situated," which is what this plaintiff sought to do. This is known as a "collective action." (Class actions are a little different and are governed by different rules. That's probably all you need to know about that for now.)

After the plaintiff filed suit but before she got court approval of a collective action, the employer made what is called an "offer of judgment." This essentially means that the employer offered her everything that she could have recovered for the employer's alleged FLSA violations against her (which was $7,500).

Then the employer argued that her lawsuit should be dismissed on the ground that it was now moot, thereby also defeating many claims of all the co-workers who would otherwise have joined her collective action.

Pretty clever, huh? This is why defense lawyers get the big bucks.

A district court in Pennsylvania agreed with the defendant and dismissed the lawsuit, but the U.S. Court of Appeals for the Third Circuit* reversed, saying that this type of tactic means that a defendant could continually "pick off" named plaintiffs one by one and prevent a collective action from ever going anywhere.

*The Third Circuit hears appeals from federal courts in Delaware, New Jersey, and Pennsylvania.

"Well, duh, Your Honors, why do you think we did it?"

Anyway, the Supremes have agreed to hear the case, and oral argument is scheduled for December 3.

The_Supremes.1966.JPG"Bay-bee, bay-bee . . . where did our FLSA collective action go?"

When can a benefits plan be reimbursed from a litigation settlement?

I was really hoping my friends at Employee Benefits Unplugged would post on this, and maybe they will later, but in the meantime, I'll do my best here.

An employee was in a devastating non-work-related automobile accident and received disability benefits in the amount of $66,866. He hired a lawyer and went after the driver who was at fault, and from her and various uninsured motorist policies recovered a gross amount of $110,000.

That's why plaintiffs' lawyers get the big bucks. In this case, 40 percent of the $110,000. Without ever going to court.

Robert_Vaughn_Man_From_Uncle.JPG

"Let 'em know YOU MEAN BUSINESS."

So, really, this guy got $66,000 from his litigation settlement. But the benefits plan went after him for reimbursement of the full $66,866 that it had paid out, effectively leaving him in the hole for $866. A federal district court in Pennsylvania decided that the plan was entitled to the full amount (considering the "gross" settlement) and ordered the guy to pay up.

He appealed, and the Third Circuit reversed. According to the court, the Employee Retirement Income Security Act allows a plan to recover "appropriate equitable relief." That means there may be limits on what a plan may recover, the court said. In this case, recovering more than the employee netted would not be "appropriate." Moreover, the employee got his settlement through his own efforts -- the plan did not do anything to help him. So the Third Circuit remanded for the district court to consider what equitable relief for the plan would be "appropriate."

A joint amicus brief in support of the plan has been submitted by the U.S. Chamber of Commerce, the Society for Human Resources Management, the American Benefits Council, and the ERISA Industry Committee.

The U.S. Department of Justice has also submitted an amicus brief. It does not support either side, but according to Bloomberg BNA, argued "that courts retain power under the common-fund doctrine to equitably apportion attorneys' fees, so the Third Circuit's decision should be partially affirmed."

Oral argument is scheduled for November 27.

Well, anyway, here's a link if you care.

The fourth employment case involves which court should hear the claim of discrimination and retaliation claims brought by a federal government employee. I don't think many of my readers are federal employees, so I'll just link to the Eighth Circuit* decision that the SCOTUS will hear for anyone who may be interested. Argument on this one was held this past Tuesday (October 2).

*The Eighth Circuit hears appeals from federal district courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

Two non-employment cases with big implications for employers

Fisher v. University of Texas. The Supreme Court will hear arguments in Fisher v. University of Texas, in which an undergraduate applicant is challenging the university's admissions standards. The student, who is white and who has since graduated from Louisiana State University, contends that the school's admissions standards violate her rights under the Equal Protection Clause of the U.S. Constitution. A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit* upheld the university's use of race as a factor in selecting applicants for acceptance. The student petitioned for rehearing by the full Fifth Circuit, and nine judges voted against rehearing the case while seven voted in favor of it. Five of those seven joined in a strongly-worded written dissent from the decision not to rehear the case.

*The Fifth Circuit hears appeals from federal courts in Louisiana, Mississippi, and Texas.

The American Bar Association supports the University, as do the NAACP, the Lawyers Committee for Civil Rights Under Law, and the National Women's Law Center, and others.

The plaintiff/student has the support of three members of the U.S. Commission on Civil Rights, the Center for Individual Rights, the Mountain States Legal Foundation, the Pacific Legal Foundation, the Asian American Legal Foundation, and others.

The Equal Employment Advisory Council, an employers' group, has not supported either side but in its amicus brief, according to Bloomberg BNA, has "urged the court not to issue a decision that makes it more difficult for federal contractors to comply with government-mandated affirmative action requirements" or "maintain successful voluntary diversity initiatives."

Oral argument is scheduled for this Tuesday (October 10). The University of Texas School of Law has a great website with links to all of the briefs and decisions in this case, as well as any other related material you might care to read.

Comcast Corp. v. Behrend. This is an antitrust case in which the SCOTUS will decide what type of evidence must be considered in certifying a class action under Rule 23 of the Federal Rules of Civil Procedure. Comcast has challenged a Third Circuit decision affirming certification of a class of current and former cable subscribers.

What does this have to do with employment, you ask? Well, Wal-Mart v. Dukes was a sex discrimination class action brought under Title VII. (The linked article links to the actual decision.) In the summer of 2011, the Supreme Court found that the case could not proceed as a nationwide class action because there wasn't enough "commonality" among the members of the putative class. (The women were claiming discrimination in virtually all aspects of employment, and the class consisted of more than a million members. Meanwhile, Wal-Mart had a corporate policy prohibiting discrimination and delegated employment decisions to the store-management level, which meant that there were hundreds of thousands of decisionmakers.)

Since Dukes, the federal courts have been struggling the parties' burdens of proof in determining whether a putative class has sufficient "commonality" to proceed, what evidence should be considered, and what weight the evidence should be given. The Supreme Court's Comcast decision, scheduled for oral argument on November 5, is expected to provide some welcome clarification.

Photo credits: Clipart.com (girl texting at school), Wikimedia Commons.

DON'T FORGET! If you want my quick explanation of Faragher/Ellerth (not that you need it), read on!

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A few labor and employment gems I got this week

Posted by Robin E. Shea on February 16, 2012

A couple of interesting gems I got this week from other people (thanks, you guys!):

Pro hac vice statements defeat summary judgment! A federal judge in North Carolina denied summary judgment to a law firm who was sued by an associate for wrongful discharge based on race. Although the law firm's evidence showed thatJewels Andalusite.jpg the associate was a poor performer, the judge found that statements made in a motion to admit her pro hac vice in New York (saying she was in good standing, and yadayadayada) created a genuine issue of material fact as to whether "poor performance" was a pretext.

My friend (as long as she isn't suing one of my clients) and most-worthy adversary Julie Fosbinder of Charlotte was representing the plaintiff, so I'm not surprised that she (a) thought of it this idea, and (b) persuaded the judge. Law firms, when firing an associate for poor performance, something to think about . . .

(Hat tip to my partner and mentor Randy Loftis.)

At least one EEOC office says no need to comply with employment provisions of GINA when dealing with workers' comp claims. And a reader of this blog -- I will not identify her unless she wants me to -- told me that she received an off-the-record opinion from her local EEOC office about whether an employer must comply with the Genetic Information Nondiscrimination Act when administering workers' compensation claims. Surprisingly, the EEOC office told her NO, they do not. Don't even have to provide the safe harbor language (although I would). The EEOC's position was that this is not an employment-related issue, so Title II of the GINA does not apply.

I wanted to share this wisdom while it was still hot . . . but I'll be back with a full-blown post tomorrow.

Employers, you might (or might not) be liable for retaliation if . . .

Posted by Robin E. Shea on January 27, 2012

Our friend Judy Greenwald from Business Insurance magazine reported this week that the number of EEOC charges filed in fiscal year 2011 (which ended September 30, 2011) was relatively flat, with the exception of one big category . . . retaliation.

Mobile Home smaller.jpgRetaliation is essentially taking action against an employee because the employee engaged in some type of activity that is protected by law. The law breaks it down into three parts, each of which the employee has to prove:

1-The employee engages in some type of legally protected activity (more on this below).

2-"Adverse employment action" is taken by the company.

3-There is a "causal nexus" (that's "connection" to you and me) between the protected activity and the adverse action. In other words, there has to be some reason to believe that the adverse action was taken because of the protected activity.

Almost all federal and state employment laws have anti-retaliation provisions. In the labor relations arena, the "non-discrimination" provisions in the National Labor Relations Act are essentially anti-retaliation provisions. A wrongful discharge lawsuit where an employee claims he was terminated for refusing to break the law or for complying with the law is also essentially a retaliation claim.

"Protected activity" can include such things as filing a charge or lawsuit, providing truthful testimony or other help to someone else in connection with a charge or lawsuit, or making an internal complaint about unlawful practices. These activities may be protected even if the employee is wrong -- as long as the employee had a good-faith belief that the employer's conduct was illegal. (Sometimes the employee's belief must also be objectively reasonable to be protected -- check the relevant law and the interpretations from courts in your jurisdiction.)

However, the employer may not be liable if the employee expresses herself in an inappropriate way -- for example, by spray painting on your corporate headquarters building, "MEGACORP DISCRIMINATES AGAINST WOMEN!!!!" (Thank heaven for small favors, huh?)

Now that you have that background, what I'd really like to talk about today is how an employee proves retaliation and how an employer disproves it. With a hat tip to Jeff Foxworthy (you knew there was a reason for that photo of a trailer!),

"YOU MIGHT BE LIABLE FOR RETALIATION IF . . ."

1-You took action against the employee a short time after you found out about the protected activity. Yes, there might be an innocent explanation, and you'll get a chance to provide it, but it looks very suspicious if the adverse action occurred, just as an example, the day after you received your copy of Joe's race discrimination charge in the mail. If the time interval was less than six months and you don't have a good explanation, you might be liable for retaliation.

2-That gun is smokin'! You, or another member of management who directly or indirectly participated in the decision made a statement indicating a retaliatory intent. You know, something like, "I can't believe that little dickens filed an EEOC charge against us! I'll fix her wagon!" If one of the key individuals made a "smoking gun" statement like this before the adverse action was taken, you might be liable for retaliation.

3-You have no "interventions." In other words, there is no intervening event to "break" what we lawyers like to call "the chain of causation." Mary had outstanding performance reviews before she complained that Mr. Romeo was sexually harassing her. She was fired a month later. There was nothing significant that occurred between her harassment complaint and her termination that would "explain away" the suspicious timing of the termination . . . for example, that Mary had botched a million-dollar deal after she complained, or got caught with her hand in the petty cash drawer, or was part of a department that was already scheduled for elimination. If there is a relatively short time between the protected activity and the adverse action, and there is no significant intervening event, you might be liable for retaliation.

4-A foolish consistency is not the hobgoblin of little minds. (Except when it is.) Employers, if you have to take action against an employee who engaged in protected activity, examine your conscience: "Would I be doing the same thing if Lemuel had not complained on behalf of himself and his co-workers about having to work too much overtime?" Oh, really? Are you sure? If you answer that question, "no" or "maybe," then don't take the action. If you answer it "yes," then you're still not done. Now ask yourself this: "Even if I am satisifed that I'm treating Lemuel no differently from any other employee, will I be able to prove it in court?" If you can't convince a third party that you treated Lemuel the same way you would have treated any other employee with similar issues, you might be liable for retaliation.

5-A foolish consistency is the hobgoblin of little minds. (Except when it isn't.) Do you have other employees who've filed charges or lawsuits against you while they were still employed? Or workers' compensation claims? Or who made internal complaints about discrimination, sexual harassment, working conditions, safety, or what have you? Did bad things happen to them? This could show that you have a pattern of retaliating against employees who engage in protected activity. If so, a judge or jury is likely to find that you probably treated this particular employee the same way, and you might be liable for retaliation. 

We aim to be "fair and balanced," so here is the other side.

YOU MIGHT NOT BE LIABLE FOR RETALIATION IF . . .

1-You are blissfully ignorant. You can't retaliate for something you didn't know about. If you fired Velveeta before you knew that she had been involved in union organizing, then you should be ok. In fact, if you can prove that you made the decision to fire Velveeta, and then found out she was involved in union organizing, and then fired her per the original decision, you'll probably win because the decision had already been made while you were knew nothing of her protected activity. This, by the way, is one of the best reasons to document decisions to terminate employees, even if the termination isn't actually carried out until later.

If the decision was made before you knew about the protected activity, you might not be liable for retaliation.

2-It's been a long time coming. If at least six months has elapsed between the time you found out about Todd's workers' comp claim and the day that you decided to fire Todd, most courts will give you the benefit of the doubt that the decision was not related to his protected activity. Todd can overcome that presumption by presenting evidence that you were still upset with him about his workers' comp claim even after all that time, but assuming he doesn't have any, you might not be liable for retaliation.

3-You have an "intervention." You found out last week that Banshie had filed an EEOC charge against you. Yesterday, you caught her (on tape!) slapping her supervisor across the face for no good reason whatsoever. YES, you can fire Banshie for slapping her boss, even though she just recently filed a charge that you know about. This is what we call a significant intervening event that "breaks" the chain of causation. If a significant intervening event occurred that provided the ground for the adverse action, then you might not be liable for retaliation.

4-A foolish consistency is not the hobgoblin of little minds. (Except when it is.) Yes, you terminated Dishwater only three weeks after finding out about his testimony against the company in Carol's discrimination lawsuit, but he had exceeded the maximum number of absences (non-FMLA/ADA, of course) under your policy, and you checked before you did it and made sure that every other employee whose attendance reached the same level had also been terminated. You also found that Dishwater had received all of the progressive warnings to which he was entitled under your policy. If you treat the "protected" employee the same way you would have treated anyone else with comparable history, then you might not be liable for retaliation.

5-A foolish consistency is the hobgoblin of little minds. (Except when it isn't.) Yes, you fired Chloreen for poor performance a couple of months after you found out that she'd filed a charge against you. But you have 50 other employees who have filed charges, lawsuits, or workers' comp claims, or who have made internal harassment complaints, etc., etc., who are all still working for you and are in good standing. If you have a long list of employees who are rocking along at work without problems even though they're "protected," then you might not be liable for retaliation.

PHYSICIAN, HEAL THYSELF! Good lessons for employers from AMA case

Posted by Robin E. Shea on October 19, 2011

It could be that the purpose of your life is only to serve as a warning to others.

In any event, that must be what the American Medical Association is thinking. The organization took it on the chin this week in a case involving the Family and Medical Leave Act.300px-The_Anatomy_Lesson.jpg

The case is well worth a post-mortem because of what it teaches employers about "causation" in retaliation and protected concerted activity cases.

Names have been changed to protect the allegedly* guilty.

*Even though the AMA lost a battle with this decision, it has not lost the war. The court found that summary judgment should not have been granted, but that means that the case will be tried before a jury. A jury might side with the plaintiff, but it might also side with the AMA.

Here's what happened:

The AMA, like just about every other employer, suffered from the economic downturn in 2008, and a manager -- we'll call him Dr. Pepper -- was told to reduce costs. Eventually it was determined that he was going to have to eliminate one position.

(One more disclaimer before I go on. Despite my fictional "doctor" names, none of the individuals actually involved in this case were physicians, as far as I can tell.)

Dr. Pepper chose an individual to eliminate -- we'll call him Dr. Seuss -- and sent an email to his boss informing her that he had chosen Seuss, and the rationale for selecting him. The gist of the rationale was that most of Seuss's work was going away anyway, so it made the most sense to eliminate his position.

Dr. Pepper's boss -- we'll call her Dr. Scholl -- sent him a reply asking whether the plaintiff, Dr. Dre, should have been eliminated along with Seuss. Pepper replied no, because he did not think it would be wise to eliminate any more positions than absolutely necessary. Scholl apparently was cool with this answer. This all happened in late October 2008.

So, we get to November 20 at a conference. Dr. Dre was there with Dr. Pepper. Dre told Pepper that he was going to have surgery on his knee in January, would be out of work for a few weeks, and was going to apply for short-term disability.

I hope you've stayed with me, because now it gets interesting.

Ten days after this conversation, on Sunday night of Thanksgiving weekend, Dr. Pepper sent an email to Dr. Scholl, apologizing for his "11th hour" change in decision, and telling her that he now wanted to eliminate Dr. Dre instead of Dr. Seuss. Among other things, Pepper said that they could more easily weather the loss of Dre because they were preparing for him to go out on disability anyway.

Poor Dr. Dre was terminated in January, and he hired a lawyer, and his lawyer sent a nasty letter to the AMA in February. The AMA's in-house attorney informed the organization's HR representative about the threatened litigation. We'll call the HR rep Dr. Bombay. (Nowadays, should that be Dr. Mumbai?)

It turns out that Dr. Bombay and Dr. Pepper had discussed the decision to terminate Dr. Dre back in November and that Bombay had taken handwritten notes. Upon learning of the threatened litigation the following February, Bombay typed up his notes and shredded his original handwritten notes, and he dated the typed notes "November 25, 2008," even though it was now February 2009.

Hmmmmm! Verrrrrrry interesting.

But, wait! There's more!

It turned out that Dr. Pepper's calendar didn't show a meeting with Dr. Bombay on November 25, and Pepper didn't remember having had one. Even worse, he testified that he didn't decide to eliminate Dr. Dre until after that date. All this made Bombay's backdating look even more dishonest.

In May 2009, the AMA eliminated about 100 more employees, including Dr. Seuss, the person Dr. Pepper had originally planned to eliminate. Apparently this was enough for a district court to grant summary judgment to the AMA. (I know! I'm not sure how that happened, either.)

But the U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, reversed, which means that Dr. Dre will be allowed to take his FMLA "interference" and retaliation claims* to trial.

*FMLA "interference" is simply a denial of FMLA leave to someone who is entitled to it, or doing something to discourage the individual from taking FMLA leave. It does not require a bad motive on the part of the employer and can even be based on a mistake or misunderstanding. In the case of FMLA retaliation, the employer "punishes" the employee for requesting or taking FMLA leave. Proof of the employer's unlawful motive is required for a retaliation claim.

So, let's make the usual Y-shaped incision and see what lessons can we learn from our "autopsy" of this case.

1. Timing is really, really important. On October 28, Dr. Pepper told his boss that Seuss should be eliminated, and he gave a good reason for the selection. He also told her that he thought it would be unwise to eliminate anyone else, and specifically Dre. On November 20, Dre informed Pepper that he would need to take FMLA leave in January. Within 10 days, Pepper reversed his RIF decision and recommended that Dre be eliminated instead of Seuss. Whatever Dr. Pepper's actual motive, this timing looks quite damning, doesn't it? The Seventh Circuit thought so, too.

2. Mentioning the FMLA leave in the poorly-timed email was not cool. In Dr. Pepper's "11th-hour" email, he said that the department could adjust easily to Dr. Dre's elimination because they were already preparing for his medical leave. Yes, I know there could be an innocent explanation for this: Pepper wasn't giving that as his motivation, he was simply giving his opinion about the effect of the decision. But this statement, especially when considered along with everything else, helps to make it look like the FMLA leave request was the reason for the selection.

3. Backdating documents is really not cool. Here's what I always tell clients: It's fine to document an event after the fact, even long after the fact, and I strongly recommend it if you didn't document at the time. But never, ever, ever, ever, ever, ever, ever in a million zillion years backdate it -- unless you are sure that the backdating is "transparent" (for example, drawing a line through the current date so that the original date is still visible, or saying something like "Created 10/22/11 based on event that occurred 6/1/11."). Any other kind of backdating looks dishonest and, as the Seventh Circuit noted, is more evidence that the employer may have had an unlawful motive and was trying to cover its tracks.

4. Destroying handwritten notes upon learning of threatened litigation (aka "spoliation") is the uncoolest of all. If you're not expecting litigation and don't have reason to expect it, then you can create a "draft" document and destroy the draft after creating the "final" version. But once you either become aware of litigation or have reason to expect it, your right to do this is gone. You must save all of your relevant documentation. Dr. Bombay, the HR representative who destroyed his handwritten notes after learning of the threat of a lawsuit, committed "spoliation," whether he realized it was wrong or not. As a result, when the case goes to trial, the judge may instruct the jury that the notes would have been favorable to Dr. Dre's case.

5. To err is human: be willing to cut your losses if you messed up, or if it will look like you messed up even if you didn't. In this case, it appears that Dr. Dre would have survived at the AMA only about 5 more months if Pepper had stuck with his original plan to eliminate Seuss in January. The undisputed evidence showed that the AMA had a massive reduction in May, and it probably would have included Dre if he'd still been around. Damages under the FMLA are limited to so-called "make-whole" relief (essentially, back pay, back benefits, costs and attorneys' fees, possibly doubled in the case of a willful violation). Even assuming the AMA might have been on the hook for a "willful" violation, it probably had a strong argument that it would not have owed much more than 10 months' pay to Dre, plus his costs and fees. Given that, it might have made economic sense for the AMA to have settled the case in mediation. (Please note that mediations are confidential, so it is very possible that the AMA tried to do just that.)

I was tempted to end this post with a rap about Dr. Dre, the AMA, the FMLA, the month of May, Dr. Bombay, and "anyway." Then I thought better of it. You're welcome.