Another “Kitchen Sink” Complaint Goes Down the Drain

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Sometimes, the likelihood of success of a lawsuit appears to be inversely proportional to the number of claims included in the complaint itself. In other words, the more causes of action that a plaintiff piles on,  the less likely that any one of those causes of action might actually have legs.

Alas, this maxim has proved true once again in a recent 8th Circuit case, Martinez v. W.W. Grainger, Inc.

Mr. Martinez was a former branch manager for W.W.Grainger. He was eventually fired following a litany of employee grievances about his management style – according to these complaints, Martinez “yelled, swore, and was demeaning, volatile, and intimidating to employees.”  [nb: this type of behavior is rarely an effective team-building strategy, nor is it usually a good career-advancement tactic, as Mr. Martinez learned to his cost.]  The company was also concerned about Martinez’ taking ownership of his own responsibilities and deficiencies.

Martinez sued, bringing a kitchen sink’s worth of claims against his former employer – breach of contract, promissory estoppel, defamation, disparate treatment in his pay and termination based on his race and national origin (Cuban) in violation of Title VII, The Minnesota Human Rights Act, and 42 U.S.C. §§ 1981 and 1983.  (Whew!) The trial court eventually dismissed all of these claims.

Undeterred, Martinez appealed this dismissal to the Court of Appeals.  Alas, his claims met the same fate:

  • Concerning the race and national origin discrimination claims based on Martinez’ firing, the 8th Circuit found it fairly clear that the company actually did fire Martinez because of his own observed shortcomings, rather than because of his race or national origin. Martinez simply had no evidence tending to show otherwise.  Martinez had claimed that other managers outside his protected class received lesser discipline, but the 8th Circuit agreed with the trial court that these other managers’ shortcomings were not of “comparable seriousness.”
  • As to thewage discrimination claims, the company presented evidence that the designated level of the branch, and corresponding salary range, was only one of the considerations in setting pay rates. Among the other considerations were the performance of the branch itself–and Martinez’s branch was one of the worst performing. Even considering this, Martinez was actually the eighth or ninth highest-paid manager within the entire company. For these reasons the 8th Circuit agreed with the trial court that the wage discrimination claim had no merit.
  • As to his breach of contract claim, the 8th Circuit simply found that there was, in fact, no contract–no contract, no breach.
  • Lastly, regarding his § 1981 claim, the court made quick work of this claim, because it must always be premised upon alleged wrongdoing associated with a contract–and, as was just noted, Martinez had no such contract.  No contract, no § 1981 claim.

The 8th Circuit made no mention of Martinez’s estoppel, defamation, or Section 1983 claims; apparently, these claims fell by the wayside.

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6th Circuit Affirms Plaintiff’s Verdict in FMLA Interference Claim, Remands for Doubling of Damages

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The Sixth Circuit has affirmed a key part of a rather large FMLA judgment against an Ohio company for interfering with an employee’s FMLA rights. In the course of its opinion, the 6th Circuit held that an employer who fails to give an employee actual notice that the company will use the “rolling” 12-month method to count FMLA leave eligibility cannot use that method, and must use the calendar year method, or else it is potentially interfering with the employee’s FMLA leave rights.

Not only that, but the Sixth Circuit held that the District Court erred by refusing to double the plaintiff’s damages, since the company failed to produce sufficient evidence that it qualified for the FMLA’s “good faith” exception to liquidated damages. Ouch!

The facts are a bit complex, but the long and short of it is that the company in question claimed to have switched to the “rolling” 12-month FMLA method internally, but never notified employees of this (though the company claimed that the union was aware of this change in its practice). The company then mistakenly approved Mr. Thom’s FMLA leave through June 27, even though under a “rolling” 12-month calculation, that was two weeks too long. Mr. Thom initially claimed to be able to come back for light duty in May and full duty by June 13, but the company wouldn’t let him return for light duty, so Mr. Thom remained home – and his condition worsened. When he didn’t return on June 13 – which is when, on a “rolling” basis, his FMLA eligiblity would have expired – the company started counting each following day as an unexcused absence, and eventually fired him on June 18.

Had the company used the “calendar” year method of counting FMLA leave eligibility, Mr. Thom’s eligiblity would not have expired until mid-July.

The District Court held that this company violated the FMLA by interfering with the plaintiff’s leave rights, awarding more than $100,000 in back wages, $99,000 in attorneys fees, and a modification of the Plaintiff’s last day of employment to render him eligible for a full pension.

As to the underlying FMLA violation, the Sixth Circuit affirmed in full. The Sixth Circuit found it significant – and, ultimately, dispositive – that the company never gave actual notice to Mr. Thom that the company used the “rolling” method of counting FMLA leave eligibility, and this omission, coupled with the company’s failure to retract its earlier approval of the leave through June 27, were sufficient to hold it liable. The Sixth Circuit shot down the company’s argument that Mr. Thom should have known that the company used the “rolling” method of tracking FMLA leave eligibility:

American Standard now claims that it has always used the “rolling” method for calculating FMLA leave and that Thom [the plaintiff] should have known this fact. … It further contends that because two key officers in Thom’s union provided affidavits during the lawsuit stating that American Standard historically maintained a policy of applying the “rolling” method, their knowledge is imputed to Thom “through simple agency law.”  … In rejecting American Standard’s constructive notice arguments, the district court concluded that an employer is required to take affirmative steps to inform employees of its selected method for calculating leave. [Citations]. We agree that employers should inform their employees in writing of which method they will use to calculate the FMLA leave year. This standard is consistent with the principles of fairness and general clarity, and applying it, American Standard’s notice to Thom fell decidedly short. Although American Standard did internally amend its FMLA leave policy in March 2005 to indicate that it would now calculate employee leave according to the “rolling” method, it did not give Thom actual notice of this changed policy or in any way tell him that his official leave date would expire earlier than June 27, the date the company had [previously, but erroneously] approved. Consequently, Thom was entitled to rely on the calendar method and the date of June 27 that the company had given in writing. Neither [the HR] nor anyone else from her department or elsewhere advised him of any change. [Ed. note - emphasis has been added]

Even worse for this company, the Sixth Circuit also held that the District Court messed up by not doubling the plaintiff’s damages. The doubling of damages is the rule in FMLA cases unless the employer proves that it acted in good faith with a reasonable believe that it was complying with a law. The Sixth Circuit concluded that there was no basis to believe that this particular company qualified for this type of exception:

The June 27 date agreed to in writing by American Standard is completely inconsistent with the rolling method and with counsel’s present reliance on the rolling method as a justification for discharge. Pretextual reasons for discharge manufactured after the fact in order to justify an earlier wrong are not consistent with good faith. The rolling calendar pretext is an ostensible motive given after-the-fact as a cover for the real reason for firing this 36-year employee—whatever those economic motives may have been. …

In this case, after-the-fact reliance on the “rolling” method
of calculation should not grant American Standard immunity from liquidated damages, and the company’s obdurate refusal to correct an obvious mistake that constituted a wrongful discharge of this 36-year employee reinforces the case for liquidated damages. [Ed. note - emphasis has been added].

Yikes! The case is Thom v. American Standard, Inc.  Happy reading!

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5th Circuit Revives Title VII Same-Sex Harassment Claim

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All Title VII sexual harassment claimants must prove (among other things) that the alleged harassment was done “because of” their sex, regardless of the genders of the various people involved. The Supreme Court told us that in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).

But if the harasser is the same gender of the victim, how do you tell if the harassment was done “because of sex” — as opposed to some other reason (e.g., the harasser is just being a jerk). The Fifth Circuit, in its new opinion in Cherry v. Shaw Coastal, Inc., has set forth a handy test:

if a plaintiff presents evidence that he was harassed by a member of the same sex, and that the harassment was sexual rather than merely humiliating in nature, that evidence is sufficient to support a verdict in the plaintiff’s favor.

Seems simple enough.  In the Cherry case, the Fifth Circuit held that an explicit text message containing a sexual proposition, an invitation to stay overnight at the harasser’s house “and wear his underwear,” and the fact that the harasser “repeatedly physically touched and caressed Cherry’s body,” was way over on the “sexual” side of that balance (ya think???)

Cherry presented more than sufficient evidence to support the conclusion that Reasoner’s harassment was sexual in nature. The text message “I want c—” could be taken as an explicit sexual proposition, as could Reasoner’s invitation to Cherry to stay at his house and wear his underwear. Reasoner repeatedly physically touched and caressed Cherry’s body, which was apparently offensive enough that Thornton, having witnessed the behavior, felt compelled to complain to their supervisor. [Ed. note - expletive censored]

The court also held that this alleged harassment was pervasive enough to justify the claim and that there was sufficient evidence for the jury to conclude that the company didn’t take prompt and appropriate corrective action after learning what was going on.

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3rd Circuit Agrees with NLRB, Group Home “Assistant Managers” Were Not Supervisors

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The Third Circuit has enforced an NLRB order which had concluded that assistant managers working in a group home for juvenile delinquents at-risk youth were not “supervisors,” and thus were properly part of a certified bargaining unit.

Generally, in the private sector, if you are a “supervisor,” you can’t be in a union. Ever.

The group home had argued that these assistant managers counted as “supervisors” because they “responsibly direct others” and gave out work assignments.

The Third Circuit agreed with the Board that there was little or no evidence to support either contention.

First, there were apparently “numerous examples of where assistant managers were not disciplined for the failure of resident assistants to follow their directions,” and none of the evaluation criteria for these assistant managers included any assessment of their supervisory skills.

Second, few of the assistant managers actually gave out any real work assignments, and the ones who did hand their hands tied tightly by internal company rules, government regulations, and by their own superiors, who had to approve virtually everything they did:

As to scheduling, there is sufficient evidence in the record that only some assistant managers had the authority to recommend an assistant’s schedule, which was later reviewed and approved by the program manager, and they had no authority to require the assistant to follow certain schedules. [Citation]. Further, the schedules are constrained by significant Government and Mars Home regulations, which cuts against finding that the assistant managers acted with independent judgment.

Part of the assistant manager’s duties is to make sure that the resident halls are adequately staffed at all times. If assistants are absent, an assistant manager may either let the unit run short-staffed, assuming it still has the required staffto-resident ratio, pull an assistant from another unit, or find a volunteer. When seeking volunteers, it is Mars Home’s informal policy that the assistant manager call the most junior assistant first and that no employee may work for more than 16 consecutive hours. A program manager must approve any overtime.

Also, there is sufficient evidence in the record that demonstrates the assistant managers do not have the authority to assign transportation duty to the assistants. In fact, one assistant manager testified that when a resident needs to be transported he simply asks for volunteers and bases any staffing decisions on the gender of the patient.

Finally, the Board’s interpretation that daily work schedules, such as assigning an assistant to monitor a single resident or to respond to a crisis constituted evidence of direction, not assignment, is not unreasonable. The Board has interpreted assignment to mean the allocation of significant overall responsibilities to an employee, not ad hoc duties. [Citation]. Here, it is plain that the assistant managers are giving only ad hoc duties, which is not evidence of the authority to assign under the Act.

The case is Mars Home for Youth v. Penna. Social Services Union Local 668.

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10th Cir.: Demand Letter Isn’t Protected by First Amendment Just Because It Attracts Media Attention

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A public employee is not entitled to First Amendment protection from retaliation unless she is speaking on a matter of “public concern.” And a public employee who complains to her bosses about her own particular workplace grievances is generally not raising an issue of public concern.

But what if the grievances in question are particularly scandalous and eventually capture the attention of the press?

What if everything explodes into a media frenzy? Does that frenzy transform the original demand letter into speech on a matter of “public concern”?

According to the 10th Circuit in Morris v. City of Colorado Springs, no.

Ms. Morris was a nurse in a hospital run by the City who had a beef with one of the doctors there. She claimed that this doctor once “flicked her with his finger,” which is rude (to be sure) but hardly newsworthy. But then, after surgery one day, this happened:

After Dr. Mahan surgically removed pericardium tissue from the patient on the operating table, he threw it in Ms. Morris’s direction. Dr. Mahan claims that he intended only to throw the tissue on the floor behind him. Nonetheless, the tissue hit Ms. Morris’s leg, prompting Dr. Mahan to say, “Oh s—, I hit her.” … He then joked about completing “cultures” on the tissue. [Ed. note - expletive deleted].

Yuck!

Morris sent a “Notice of Claim” to the Hospital, insisting that she suffered damages as a result of the above incidents and threatening to file a lawsuit against the Hospital. After she sent this Notice, the Hospital removed her from the “Heart Team” and transferred her to a different work location to get her away from Dr. Mahan and “place [her] in a work environment that is comfortable.”

Since no good deed goes unpunished, Morris sued the Hospital, and one of the claims she made was that her transfer off the Heart Team was done in retaliation for her Notice of Claim.

The District Court threw out the claim, finding that the “Notice of Claim” wasn’t speech on a matter of public concern. Morris argued to the Tenth Circuit that the District Court got that conclusion wrong, because her Notice of Claim was “of interest to the community,” as evidenced by the widespread media coverage of her lawsuit. (For examples, see here and here.)  She also claimed that her “Notice of Claim” had raised “significant issues related to improper operation of a public hospital and the malfeasance, and potentially illegal conduct of a surgeon.”

The Tenth Circuit held that it simply didn’t matter how much media attention had been lavished on her allegations, since those allegations themselves in the first instance were purely internal grievances:

[A] statement ‘does not attain the status of public concern simply because its subject matter could, in different circumstances, have been the topic of a communication to the public that might be of general interest.’” [Citation]. Thus, the fact that the incident mentioned in her petition gained public interest does not mean that the petition itself was framed in a manner calculated to ignite that public interest. “The right of a public employee [to petition] … is not a right to transform everyday employment disputes into matters for constitutional litigation.” [Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2501 (2011)]. Ms. Morris’s notice is framed as lodging a complaint regarding an employment dispute, and seeking damages for it. It does nothing more.

The Tenth Circuit also agreed with the District Court that neither the taps on the head nor the tissue-throwing incident – though “unquestionably juvenile, unprofessional, and perhaps independently tortious” – could not be unlawful sexual harassment because it just wasn’t severe or pervasive enough, given the context.  (Interestingly, the Court was careful to make it clear in a footnote that “we are not asserting that, under an objective inquiry, a reasonable nurse or other healthcare worker in a surgical or related context may never predicate a hostile work environment claim on exposure to human biological products,” but just that Ms. Morris’ case wasn’t such a case.)

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6th Circuit: McDonnell Douglas Applies to FMLA Interference Cases? Huh?

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If an employee claims that her employer retaliated against her for exercising protected rights under the FMLA, it is fairly well-established that courts must use the tripartite McDonnell Douglas test to decide the claim.  In other words, the employee must prove a preliminary (“prima facie”) case of illegal activity, then employer raises its hand and offers a legitimate explanation for its action, and then the employee tries to shoot down that explanation as a contrivance. I am oversimplifying a bit, since there are circumstances where the McDonnell Douglas test doesn’t apply: such as, for example, the employee has the employment-law equivalent of a smoking gun – so-called “direct evidence” of the employer’s unlawful behavior.  But in most instances, McDonnell Douglas is the rule.

But what if the employee claims that her employer interfered with her rights under the FMLA. For example, an employee might claim that her employer fired her in order to stop her from taking protected medical leave.  Does the McDonnell Douglas test apply to that type of claim? Does the employer’s motivation matter at all, if the only real question is whether the employee got leave to which she was entitled?

The Sixth Circuit has answered those questions today in Donald v. Sybra, Inc. – and, rather surprisingly, has held that yes, the employer’s motive does matter, even in an interference claim, and yes, you are supposed to use the McDonnell Douglas test to resolve that type of claim. But the Sixth Circuit did not sound very enthusiastic when reciting this conclusion:

In Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008), this Court stated that, in an FMLA interference claim, an employer may prove it had a legitimate reason unrelated to the exercise of FMLA rights for terminating the employee. The Court went on to say that the plaintiff could rebut the employer’s reason by showing that the proffered reason had no basis in fact, did not motivate the termination, or was insufficient to warrant the termination. Id. The Court effectively adopted the McDonnell Douglas tripartite test without saying as much. Because “[r]eported panel opinions are binding on subsequent panels,” 6 Cir. R. 206(c), Grace requires the conclusion that the district court correctly applied McDonnell Douglas to both Donald’s interference and retaliation claims.

This does not appear to be a very ringing endorsement of the older Grace decision, and  one wonders how the Donald panel would have ruled had Grace not been laying around as a controlling earlier panel decision.  (One also wonders whether an en banc Sixth Circuit might feel differently.) The Donald panel also noted that its decision creates a circuit rift with both the First and Seventh Circuits. Sigh.

The actual facts in the Donald case involve a fast food cashier who was terminated while on a medical leave after she was allegedly caught stealing from the till. The Sixth Circuit ultimately held that the District Court had correctly granted summary judgment on her FMLA claims.

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7th Circuit: Watching “Blazing Saddles” Doesn’t Make You a Racist

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The 7th Circuit has rejected a race discrimination claim brought by a former Warrick County, Indiana deputy sheriff, who argued that his firing was motivated by racism because (among other reasons) some of the detectives in the Sheriff’s office had “watched excerpts from the movie Blazing Saddles in his presence.”

He also claimed that other deputies called him “Calvin”, “Urkel”, “Cowboy Troy”, and “Tubbs,” all but one of which are references to African American characters in TV shows and commercials. (Which, of course, raises the question of exactly what these detectives and deputies were doing all day, apart from watching TV.)

Anyway, the 7th Circuit – in an opinion written by Judge Easterbrook – dispelled any notion that these detectives’ apparent appreciation for Mel Brooks films was evidence of race bias:

The argument about Blazing Saddles is hard to take seriously. The 1974 Mel Brooks comedy was nominated for three Academy Awards and satirizes an array of racial, ethnic, and social stereotypes. See WIKIPEDIA, http://en.wikipedia.org/wiki/Blazing_Saddles (last visited Jan. 5, 2012). The movie makes racism ridiculous, not acceptable, as Harris seems to contend.

As for the nicknames, the 7th Circuit found this evidence “somewhat more compelling evidence of workplace racial bias,” but still rejected it, since there was no indication that anyone “in the decision-making chain used the nicknames–or for that matter had anything to do with the viewing of film clips from Blazing Saddles.”

The case is Harris v. Warrick County Sheriff’s Dept.