Richard Gacek worked for Owens & Minor Distribution in its warehouse. In 2008, one of his black co-workers sued the company for race discrimination and Gacek, who is white, provided deposition testimony supporting his claim. Several months later, following an investigation into another employee’s complaint about him, the company fired Gacek for “violations of company policy, including but not limited to creation of a hostile and intimidating work environment and engaging in unsafe work practices.” Gacek filed a lawsuit under 42 U.S.C. § 1981 alleging that he had been fired in retaliation for “attempting to vindicate the rights of minorities” protected by the statute when he gave favorable deposition testimony.

Section 1981 claims are analyzed under the same McDonnell-Douglas framework as Title VII cases. Owens & Minor claimed that it terminated Gacek for legitimate reasons unrelated to his deposition testimony: his multiple violations of company policies. Gacek argued that this reason was pretextual because other employees who had violated the same policies were not terminated. The Court rejected Gacek’s argument, however, finding that these other employees were disciplined for single incidents, whereas he was terminated for accumulating multiple violations. “Because none of the proffered single incidents is of comparable seriousness to the litany of violations accumulated by Gacek, the purported evidence of disparate treatment fails to meet the ‘rigorous’ test at the pretext stage for determining whether employees who were treated differently are similarly situated to the plaintiff.” As Gacek presented no evidence from which a jury could conclude that the employer’s proffered reason for his termination was pretextual, summary judgment was appropriate.

Other than serving as a reminder that section 1981 is still a viable cause of action, this case illustrates the difficulty of finding similarly-situated employees when a plaintiff is terminated for multiple reasons.

Ms. Pereda began working for Brookdale Senior Living Facilities in October 2008. In June of 2009, before she had met the 12-month eligibility requirement for the FMLA, Ms. Pereda told her employer that she was pregnant, and due to give birth at the end of November. According to Ms. Pereda, after she disclosed her pregnancy and her future need for leave, she was subjected to harassment and retaliation when she used accrued sick and vacation days to deal with pregnancy-related complications. Ultimately, in September 2009 she was fired, after eleven months of employment and more than two months before her leave was scheduled to begin. She sued for interference and retaliation under the FMLA, claiming that Brookdale denied her rights under the FMLA to which she was entitled and terminated her for attempting to exercise those rights.

The appellate court held that if employees are not protected against pre-eligibility interference with their rights under the FMLA, it would create a loophole and allow employers the freedom to terminate an employee before she can ever become eligible for leave. Because the FMLA requires thirty days’ advance notice of intent to take leave whenever possible, the Court continued, logic mandates that the FMLA must protect employees who, like Ms. Pereda, meet or exceed the notice requirement. Accordingly, the Court held that a pre-eligible request for post-eligible leave is protected activity under the FMLA.

This decision is a good reminder that employers should take care before terminating an employee who has discussed or requested FMLA leave, even if that the employee is not yet eligible for leave.

The issue before Judge Davis was slightly different than the one considered by the Supreme Court: whether an agreement between an employee and his employer that requiring arbitration permits the employee to pursue his wage and hour claims on a collective basis. Because the agreement did not address the issue directly, the Court relied on two standard rules of contract interpretation. First, the Court must give effect to the contractual rights and expectations of the parties, and not impose a particular type of arbitration based on its own policy judgments. Second, any ambiguities in the agreement must be construed against the drafter (i.e. the employer).

With these precepts in mind, Judge Davis described his task as determining whether the Arbitration Agreement between Mork and his employer Loram “evinces sufficient indicia of agreement between the parties that a claim within its scope may proceed on a collective basis.” Based on some broad language in that agreement, as well as the need to interpret ambiguities against Loram, the Court ultimately concluded that Mork would be allowed to pursue his claim as part of a collective action.

The lesson here for employers is pretty straightforward: if you would prefer not to have collective actions or class actions brought in an arbitration setting, make sure that your agreement specifically says just that!

Attorneys who need a quick refresher on the nuances of the Ellerth-Faragher affirmative defense in supervisor harassment cases should spend some time with last week’s decision by the 8th Circuit in Crawford v. BNSF Railway Co.

Five plaintiffs (four men and one woman) alleged that their male supervisor subjected them to frequent sexual and racial harassment. BNSF did not directly dispute the allegations, but sought summary judgment on the basis of Ellerth-Faragher, claiming that plaintiffs did not report the supervisor’s conduct in a timely manner, and that it responded promptly and effectively once it was reported. The district court granted summary judgment to BNSF, and the 8th Circuit affirmed.

Now for the refresher:

• An employer is vicariously liable for a supervisor’s harassment of an employee unless it can establish the Ellerth-Faragher affirmative defense. The defense is available only when the employer has taken no tangible employment action against the employee.

• To establish the defense, the employer must show two things: (a) that it exercised reasonable care to prevent and promptly correct any harassing behavior, and (b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

• As to the first element: An employer’s distribution of an antiharassment policy provides “compelling” proof that it exercised reasonable care. In assessing whether an employer exercised reasonable care, its notice of the harassment is of “paramount importance.” Where there is a published policy providing a policy for reporting harassment, an employee must have invoked the policy to establish actual notice. Moreover, the Court will afford an employer “an appropriate degree of deference to business judgment” where it conducted a reasonable investigation in good faith. (The fact that plaintiff wanted a harsher response does not make an otherwise valid policy ineffective.)

• As to the second element: Establishing that an employee failed to avail herself of a proper complaint procedure normally suffices to satisfy the employer’s burden under the second element of the defense. Only a “truly credible” threat of retaliation may excuse an employee’s delay in reporting harassment.

That concludes our refresher for today. Go forth and affirmatively defend!

A decision last week in Federal Court by Judge Tunheim offers a glimpse into how an employer struggling to accommodate a difficult employee with health issues should proceed.

Jennifer Lenzen worked as an administrative assistant for Workers’ Compensation Reinsurance Association from 1995 until December 2008. She was diagnosed with fibromyalgia and chronic fatigue syndrome in 2005. After a series of accommodations and warnings that she was not performing the essential functions of her position, WCRA fired her.
In response, Lenzen brought a host of claims, including disability discrimination, failure to accommodate, retaliatory discharge, hostile work environment and whistleblower protection. After extensive discovery, WCRA moved for summary judgment on all claims; Judge Tunheim granted that motion. (He also excluded a number of affidavits that Lenzen had submitted under Rule 56(c)(4) because they were irrelevant to Lenzen’s claims and not within the personal knowledge of the affiant.)

At its heart, WCRA’s motion succeeded because it provided a legitimate, nondiscriminatory reason for Lenzen’s termination –insubordination and failure to meet minimum job requirements – and because Lenzen could not show that its explanation was “without basis in fact” or that discrimination was “the more likely motivating factor” behind the termination. There were a couple of considerations leading to the Court’s decision. First, the timeline of Lenzen’s termination simply did not permit a reasonable inference that WCRA terminated her on account of her medical condition. Second, WCRA accommodated her work restrictions in several different ways for years, even allowing her to take a nap every day.

Lenzen’s retaliation claim failed because she did not engage in statutorily protected conduct; i.e. she never complained to WCRA management about alleged disability discrimination. Her hostile environment claim sizzled because she acknowledged that the alleged harasser treated everyone poorly; therefore she could not establish a causal connection between her medical condition and the harassment. Finally, her whistleblower claim was struck because she never made a “report” protected by the Act.

This case should provide employers with a good reminder of how best to deal with difficult employees, as well as a checklist of available defenses to a variety of claims.

James Cunningham worked at a Wal-Mart store in Fridley. In November 2008, he suffered a series of four mini-strokes; these caused him lingering problems with memory and concentration.

After a series of performance issues, Wal-Mart directed Cunningham to prepare a written plan of action detailing how he would meet the company’s expectations. Cunningham did not write a plan, and he did not report to work or call in for his next five shifts. As a result, Wal-Mart fired him for job abandonment and opposed his application for unemployment compensation.

After a telephone hearing, the Unemployment Law Judge concluded that Cunningham’s failure to report or call-in represented disqualifying misconduct because it was a serious violation of the standards that his employer had a right to expect. On appeal, with the help of the William Mitchell Law Clinic, Cunningham argued that the ULJ erred by failing to consider a 2009 amendment to Minn. Stat. § 268.095, subd. 6(b)(1); the new law provides that conduct resulting from an applicant’s mental illness or impairment is not misconduct. Because the record supported the finding that Cunningham’s failure to report to work was a consequence of his mental impairments, the Court of Appeals concluded that the conduct for which he was discharged did not amount to misconduct.

Keith Thompson was a pilot for Air Transport International based in Arkansas. After returning from FMLA leave, he was discharged for violating an operational procedure. He sued in Federal Court, alleging retaliation under the FMLA. ATI moved to dismiss under Rule 12(b)(1), arguing that the court lacked subject matter jurisdiction because Thompson’s claims were subject to a mandatory arbitration provision contained in the collective bargaining agreement (“CBA”) between it and Thompson’s union. The district court granted ATI’s motion, and the 8th Circuit affirmed.

Thompson argued that the mandatory arbitration provision was not enforceable because it represented an illegal waiver of his right to bring an FMLA claim. While recognizing that an employer cannot require an employee to waive his right to seek relief under the FMLA, the court concluded that the CBA did not amount to a waiver of Thompson’s rights under the statute, only a waiver of his right to have his claims heard in court. In so doing, the 8th Circuit reaffirmed two important legal principles:

• Parties can waive their right to seek judicial relief as part of a mandatory arbitration agreement, and
• Employment-related claims, like those under the FMLA, can be subject to mandatory arbitration.

The Court’s broad language in this decision will be helpful to parties seeking to enforce mandatory arbitration provisions in both CBAs and non-union arbitration agreements. Of course, employers should not overreach and try to limit the remedies available to employees in the arbitration forum.

A recent decision by Senior Judge David Doty in an inflammatory racial discrimination case arising in the Red Wing public schools provides a good overview of claims that a student who has been harassed based on her race might bring against a school district and its officials, focuses attention on the little-known Title VI (not its more popular sibling Title VII), and perhaps even offers a lesson to school officials.

In September 2009, the student council at Red Wing High School encouraged their fellow students to dress for homecoming according to the theme “Tropical Day”. Teenagers being who they are, a small group of students took it upon themselves to decide that Wednesday’s theme should be “Wigger Day” in homage to those white youth who affect the speech, fashion and other manifestations of inner-city black youth. As a result, on that day some 60 or 70 students wore oversized sports jerseys, low-slung pants, and “doo rags” to school.

Plaintiff Pruitt is black and was a student at RWHS in 2009. She and her mother complained to school officials that Wigger Day was racially offensive, but those officials did not take any school-wide action to address the issue. As a result, Ms. Pruitt sued the Red Wing Public Schools and various individual school officials claiming (1) a hostile educational environment under Title VI of the Civil Rights Act of 1964; (2) race discrimination under Section 1983; (3) race discrimination — and aiding and abetting race discrimination — under the Minnesota Human Rights Act; and (4) negligence. The defendants moved to dismiss for failure to state a claim pursuant to Rule 12(b)(6).

Judge Doty analyzed the motion according to the increasingly familiar standard established by the Supreme Court in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly: a claim must have sufficient factual content to allow the court to draw a reasonable inference that the defendant is liable. The complaint need not contain detailed factual allegations, but must raise the right to relief “above the speculative level.”

Turning first to the Title VI claim, which prohibits discrimination in programs receiving federal financial assistance, the Court recognized that the Eighth Circuit has not yet addressed a school’s liability for student harassment under Title VI. It has, however, found such harassment actionable under Title IX, which Congress modeled after Title VI. In addition, several other courts of appeal have held that a plaintiff may sue a school district under Title VI for an intentional failure to address a racially hostile environment. As a result, the Court here concluded that Title VI does allow a suit against a school for intentional discrimination in the form of a racially hostile environment. (The court did, however, dismiss the Title VI claim against the school official because the statute does not support individual liability.)

Judge Doty next addressed plaintiff’s Section 1983 claim Defendants sought dismissal because the complaint failed to identify a specific violation of a constitutional right. The Court agreed; even reading an Equal Protection Clause claim into the complaint, it was still too vague to survive the motion because it did not give defendants sufficient notice of what their alleged misconduct was.

The lesson for school districts: when your students engage in conduct that might be viewed as racially harassing, do something about it!

The article quotes Cynthia Calvert, a senior adviser at the Center for WorkLife Law at the University of California, claiming “Maternal discrimination is the front line of gender discrimination today.” And it highlights a case from Pennsylvania in which a woman was awarded $150,000 from her former employer, a car dealer, who fired her when she became pregnant with her third child. (Note that the employer claimed that her job was eliminated for economic reasons, but she testified that her job wasn’t eliminated as she trained the man who replaced her.)

Interestingly, Calvert suggests that it is the third pregnancy that tends to be the tipping point. “When the third child comes along,” she said, the pressure “goes into hyperdrive.” It also appears that when male managers “really invest in a woman’s career, they feel personally betrayed by a pregnancy.”

My own sense is that employers get very nervous when considering taking adverse action against a pregnant employee; there is the sense that all of the sympathies in the situation lie with the employee. At the same time, however, I am sure that there sometimes can be this sense of betrayal and some unconscious bias thrown into the mix as well.