"Split Happens:" 3rd Circuit Finds Supervisors at Public Agencies Can Be Personally Liable for FMLA Violations

Yesterday, in the case of Haybarger v. Lawrence County Adult Probation and Parole, the Third Circuit Court of Appeals determined, for the first time in this Circuit, that supervisors who work at public agencies can be held personally liable for violations of the Family and Medical Leave Act (FMLA).  


The facts of this case and the analysis employed by the Court in reaching its decision are not overly exciting.  In short, Debra Haybarger worked as an office manager for Lawrence County Adult Probation and Parole, and suffered from Type II diabetes, heart disease and kidney problems.  Her health problems forced her to miss work often for medical appointments, and the Director of the Adult Probation and Parole, William Mancino, expressed dissatisfaction with Haybarger's frequent illness-related absences.  Mancino informed Haybarger that she needed to "cut down" on the days she was taking off and began to ask her why she needed to visit the doctor so much.  Haybarger was then formally disciplined by Mancino for her frequent medical absences and eventually terminated by the Adult Probation Office on Marcino's recommendation.  Haybarger then sued Lawrence County, Lawrence County Adult Probation and Parole and Marcino for various employment law violations, including the FMLA. 


After a complex procedural history, which saw many of Haybarger's claims dismissed, Marcino sought to have Haybarger's FMLA claims against him dismissed as well, arguing that the statutory language of the FMLA did not allow for personal liability.  After engaging in a thorough (and none-too-thrilling) parsing of the operative statutory language that defines who is an "employer" under the FMLA, the Third Circuit concluded that this definition includes an individual employed by a public agency who (1) exercises supervisory authority over a complaining employee and (2) was responsible, either in whole or in part, for the alleged FMLA violation.  The Third Circuit then examined the specific facts in this case and concluded that enough evidence existed to allow a jury to conclude that Marcino fit this definition as it related to Haybarger. 


What really makes this case interesting and important (aside from the fact that this issue had never been decided by the Third Circuit before), is that it widens a Circuit-split that previously existed on this question.  In its decision, the Haybarger Court noted that the Sixth and Eleventh Circuits had already arrived at the opposite conclusion - that the FMLA does not permit individual liability for supervisors at public agencies.  Additionally, the Eleventh Circuit has similarly held that there is no individual liability for public officials under the FMLA because "an individual officer lacks sufficient control over an employee's employment."  The Haybarger Court, however, rejected these rationales and instead chose to follow the lead of the Fifth Circuit, which had previously concluded that individual liability under the FMLA can attach to supervisors at public agencies.  


So, we now have at least three Circuits finding no grounds for individual public supervisor liability, and at least two that have taken the opposite tack.  With that schism, it seems likely (if not inevitable) that the U.S. Supreme Court will now have to take up this question and determine it once and for all.  As they say in show business, "stay tuned folks... there's more after this."


You can read the full Third Circuit opinion in Haybarger v. Lawrence County Adult Probation and Parole here: http://www.ca3.uscourts.gov/opinarch/103916p.pdf

US Supreme Court: First Amendment Bars Discrimination Suits By Ministers Against Religious Employers

Yesterday, in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the U.S. Supreme Court, for the first time, adopted and sanctioned the "ministerial exception" rule that has been utilized by the Federal Courts of Appeals for 40 years, which provides that the Free Exercise and Establishment Clauses of the First Amendment prohibit ministers, priests, and other religious individuals from suing their ecclesiastical employers for employment discrimination.  In short, the Court held that the First Amendment's prohibition on the government's establishment of religion and its guarantee of free exercise and worship prohibit such lawsuits because religious organizations are free to choose which ministers they want to lead and guide their congregation, without interference or the threat of forced-reinstatement or monetary damages imposed by the courts or the government. 


This case centered around Cheryl Perich, who was a "called" teacher of students from kindergarten to eighth-grade for the Hosanna-Tabor Church.  The Church has two categories of teachers that it employs: "called" teachers and "lay" teachers.  "Called" teachers are required by the Church to complete certain academic requirements, including an eight-class course of theological study at a Lutheran college or university, an endorsement of the teacher's local Church district, and the successful passage of an oral examination by Church faculty.  Once these requirements are met, the teacher may be "called" by the congregation, upon which the teacher formally receives from the Church the title of "Minister of Religion, Commissioned."  "Lay" teachers, on the other hand, are not required to be Lutheran or to be trained by the Church.  The Church only appoints "lay" teachers when no "called" teachers are available. 


Perich, as a "called" teacher, had completed all of the above requirements, and taught both religious and secular curriculum to her students at the Church.  Her duties also involved activities such as leading students in prayer exercises daily, attending weekly school-wide chapel services and even leading those chapel services approximately twice each year.  


In June of 2004, Perich was diagnosed with narcolepsy, and began the 2004-2005 school year on disability leave.  On January 25, 2005, Perich notified the school principal that she was ready to return to work.  The principal, however, informed Perich that the school had already contracted with a "lay" teacher to fill Perich's position, expressing concern that Perich would not be able to return to the classroom.  On January 30, the Church held a congregation at which the school's administrators concluded that Perich was physically unable to return to her job either that school year or the next, and requested that Perich resign from her position as a "called" teacher. 


Perich refused to resign and produced a note from her doctor indicating that she would be physically able to return to work on February 22, 2005.  On that date, Perich arrived at the school and the principal asked her to leave.  Later that day, the principal telephoned Perich and told her that she was likely going to be fired.  Perich responded that she had contacted an attorney and intended to pursue her legal rights. 


On April 10, 2005, a congregation of the Church was convened, and voted to rescind Perich's call in light of the "regrettable" actions that had occurred in February.  The next day, the school board terminated Perich's employment on the grounds of "insubordination and disruptive behavior," and because of the damage she had done to her "working relationship" with the school by "threatening to take legal action."


Perich then filed a Charge of Discrimination with the EEOC, alleging that she had been terminated from her employment in violation of the Americans with Disabilities Act (ADA).  Perich claimed that the Church had unlawfully retaliated against her for threatening to file a lawsuit under the ADA in February of 2005.


In a unanimous 9-0 decision, the Supreme Court held that Perich's suit, which originally sought reinstatement to her position as a "called" teacher, or alternative damages for back-pay, front-pay and punitive damages, was barred by the First Amendment's ministerial exception.  Chief Justice John Roberts, in writing for the Court, engaged in detailed examination of the history and origination of the First Amendment's Free Exercise and Establishment Clauses, and found that they had been adopted against the backdrop of the British Crown's historical interference and control over the appointment of ecclesiastical ministers.  


The Court also noted that its own past decisions have reinforced the rule that governmental actions that have the effect of contradicting or interceding in a religious organization's decision as to who shall serve as a minister and under what conditions or circumstances, are unconstitutional under the First Amendment.  The same holds true, the Court concluded, with employment discrimination actions brought by ministers against their former religious employers.  The Court held that: "[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision.  Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.  By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."


Finding that Perich was clearly a minister under the facts and circumstances surrounding her acceptance as a "called" teacher, and the fact that both Perich and the Church had held her out to the public as a minister during the years of her employment, the Supreme Court dismissed Perich's claim for retaliation under the ADA as unconstitutional. 


You can read the Supreme Court's full opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC here: http://www.supremecourt.gov/opinions/11pdf/10-553.pdf

Filming Co-workers In Partial State of Undress is Bad.... In Case You Didn't Know

In the legal world, common sense and the law do not always go hand-in-hand.  Sometimes what seems practically logical or predictable will not be legally sustainable (or vice-versa).  But, on those rare occasions when the law and common sense can exist side-by-side without destroying each other like sparring gladiators, it can be refreshing. 

This is one of those moments.  In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them.  The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly). 

One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat)  observed on the floor.  Doe and her partner soon found themselves crawling with fleas.  They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.

After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors.  Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up.  Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.  

Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility.  After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way.  Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes. 

Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident.  When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices.  A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed.  Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.  

Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock.  With Doe standing with her back to the door, Joyce began to inspect Doe for fleas.  Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts. 

As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe.  Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo.  Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room.  Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up."  Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."  

Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe.  After which, Doe left the hospital in scrubs. 

Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers.  At least one officer testified that Foy had displayed a still image of Doe's bare buttocks.  Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network.  Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper. 

Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment.  Doe also claimed that the County was liable for an alleged failure to train their officers. 

On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim.  While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area."  The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed.  As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper. 

The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them. 

Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue. 

So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.  

You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf

Legal Challenge to Haverford Township Anti-Discrimination Ordinance Continues

Back on February 15, I reported on the new anti-discrimination ordinance passed by Haverford Township in Delaware County, PA, which not only makes it illegal for employers doing business in Haverford Township to discriminate against employees or applicants on the grounds of sex, religion, race and national origin, but also added sexual orientation, gender identity and gender expression as protected classes - something that neither Pennsylvania nor the Federal Government has yet to do.

Since then, a Haverford Township resident, Fred Teal, has filed a lawsuit challenging the validity of that Ordinance, arguing it is illegal because the Township allegedly failed to follow the proper procedures in adopting it.  Mr. Teal has also argued that two of the Haverford Township Commissioners should have recused themselves from the proceedings surrounding the adoption of the Ordinance because they have homosexual relatives.  

The Delaware County Daily Times is reporting that on September 27, 2011, Judge Pagano of the Delaware County Court of Common Pleas overruled the Township's preliminary objections to Mr. Teal's action, which means that for the moment, the lawsuit will continue.  The Township must now file an Answer to Mr. Teal's Complaint. 

You can read the full story from the Delaware County Daily Times here: http://delcotimes.com/articles/2011/10/10/news/doc4e92630eb4ce5699604790.txt?viewmode=fullstory

In Title VII Cases, Sometimes It's All About the Numbers. . .

On September 28, 2011, in the case of Meditz v. City of Newark the Third Circuit Court of Appeals found that the trial court had improperly dismissed a lawsuit against the City of Newark, which alleged that the City's residency requirement for its non-uniformed employees was unlawful under Title VII because it created an employment bias against white, non-Hispanic applicants. The Court of Appeals held that the trial court had failed to properly evaluate and consider the weight of the statistical evidence that had been presented by the plaintiff. In April of 2007, Gregory Meditz, a white male who resided in neighboring Rutherford, New Jersey, applied for a non-uniformed job with the City of Newark. Meditz was turned down for the job because he did not live in the City of Newark, and thus did not qualify for employment under a City Ordinance that required all non-uniformed City personnel to live within the City limits. Meditz sued, claiming that the City's residency requirement for its non-uniformed employees was discriminatory and unlawfully barred him from qualifying for a non-uniformed job with the City. Specifically, Meditz argued that the residency requirement worked a disparate impact on white, non-Hispanic job applicants because the racial make-up of the population of Newark did not reflect the racial make-up of the surrounding labor market. In support of his claims, Meditz produced statistical data that he gathered from publicly available sources, which revealed that in 2007, only 9.4% of the non-uniformed employees of the City of Newark were white, non-Hispanic, while 28.31% of the City's uniformed employees (who are not subject to a residency requirement) were white, non-Hispanics. Meditz also compared the statistics of the racial composition of the City's non-uniformed employees with the racial composition of the non-uniformed employees from the County of Essex, which maintained its County seat within the City of Newark. This comparison showed that 42.96% of the non-uniformed employees who worked for the County were white, non-Hispanics. Meditz also introduced evidence that in 2005, the percentage of white, non-Hispanics that constituted the non-uniformed employees of Essex County and 5 neighboring counties, ranged from 48.09% to 86.49%, with the percentages of white, non-Hispanics employed in the private labor force in those same counties being only slightly lower. The trial court, however, granted the City's motion for summary judgment, and tossed Meditz's lawsuit, concluding that "these statistics, standing alone, do not constitute sufficient evidence of a significantly discriminatory hiring pattern." On appeal, the Third Circuit reversed, finding that the trial court had misapplied the law and had failed to lend the appropriate weight to Meditz's statistical evidence. Specifically, the Court held that "Meditz offered statistical evidence showing that the percentage of white, non-Hispanics employed by Newark was lower than the population of white, non-Hispanics in the general population of Newark. Meditz also offered statistics showing the percentage of white, non-Hispanics in surrounding areas both for the general population and for the private and government work forces. Finally, Meditz offered evidence of the percentage of white, non-Hispanics employed by the Essex County government in Newark. Out of all these percentages, the lowest was the percentage of white, non-Hispanics employed by the City of Newark. This compilation of statistics supported Meditz's claim that white, non-Hispanics were under-represented in Newark's non-uniformed work force." This case provides an excellent illustration of how a disparate impact theory of discrimination under Title VII can be invaluable tool for an individual who believes he or she has been subjected to unlawful discrimination, because in these cases, evidence of discriminatory intent or bias on behalf of the employer is not required. All that a plaintiff needs in order to be successful is to establish a differential employment outcome or treatment that is based upon race, sex, religion, or national origin, which can be proven through statistical analysis and statistical deviations. After all, the numbers don't lie. You can read the Third Circuit's full opinion in Meditz v. City of Newark here: http://www.ca3.uscourts.gov/opinarch/102442p.pdf

Supervisor who is terminated for asking subordinates for a loan is not entitled to unemployment compensation

In Weingard v. Unemployment Compensation Board of Review, No.: 2729 C.D. 2010 (Pa. Cmwlth. 8/10/2011), the Commonwealth Court held, in a matter of first impression, that a supervisor who is fired for requesting a substantial loan from a subordinate is not entitled to receive unemployment compensation, even if the employer does not have a specific rule prohibiting the solicitation of loans in the workplace. The Court held that such a request constitutes a disregard of the standards of behavior an employer has a right to expect from its employees.

In this case, Weingard learned that a co-worker was selling a motorcycle for $1,000.00 and he wanted to buy it. But, due to his poor credit history, Weingard knew that he would be unable to obtain a loan from a bank. So, Weingard asked his supervisor for a $1,000.00 loan and was turned down. Weingard then asked five other employees - at least one of whom was Weingard's subordinate - if he could borrow the $1,000.00 and was similarly rejected. One of the employees who was supervised by Weingard complained to Weingard's supervisor about Weingard's request to borrow money, indicating that it made her uncomfortable. The employer conducted a three-week investigation into the matter, after which it terminated Weingard for his requests to borrow money, deeming such an action to be "coercive."

The employer's handbook did not contain any specific rules regarding the lending or borrowing of money between supervisors and subordinates, but did prohibit employees from "operating or acting in any manner that is contrary to the best interests of Employer."

Weingard then filed for unemployment compensation benefits. The Unemployment Compensation Referee granted benefits to Weingard, finding that the employer had failed to meet its burden to establish the existence of a rule regarding the lending or borrowing of money between supervisors and subordinates, and that a violation of that rule could result in termination.

On appeal, the Unemployment Compensation Board of Review reversed, holding that the employer had in fact established the existence of a policy that prohibited Weingard from acting in a manner that was contrary to the employer's best interests. The Board thus denied Weingard unemployment compensation benefits.

The Commonwealth Court affirmed the decision of the Board that denied Weingard unemployment compensation benefits, but did so on different grounds. The Court found that employer's general policy that prohibited employees from "operating or acting in any manner that is contrary to the best interests of Employer," was "so general as to be meaningless to this appeal." The Court held that the Board committed error when it found that Weingard had knowingly violated this vague standard because "[Weingard] testified that he did not know there was a policy prohibiting him from soliciting loans from co-workers, and he did not believe that asking another employee for a loan harmed Employer's interest in any way. Employer provided no evidence to the contrary." Thus, the Court found the Board's conclusion that Weingard had committed willful misconduct by knowingly violating a work rule, was erroneous.

The Court nevertheless determined that Weingard was ineligible to receive unemployment compensation benefits. Examining for the first time whether a supervisor's request of a substantial loan from a subordinate constitutes willful misconduct, the Court found that in asking to borrow $1,000.00 from a subordinate, "[Weingard] used his position of authority in an unseemly way. He may not have used overt threats or direct coercion, but that fact is not dispositive of the issue. [Weingard] held the upper hand in the relationship with the employees he supervised. . . There is an unspoken, and implicit, coercion when a boss makes a request for a significant loan of an employee under his supervision." Therefore, the Court concluded that while Weingard may not have violated a specific written rule of his employer regarding money-lending between employees, his conduct "violated the standards of behavior his Employer had a right to expect," from its employees, which constituted willful misconduct that disqualified him from receiving unemployment compensation benefits.

The moral of the story? If you need a loan, go to a bank.

You can read the WeingardCourt's full opinion here: http://www.courts.state.pa.us/OpPosting/Cwealth/out/2726CD10_8-10-11.pdf

Vote for "Pa Employment Law" as one of ABA's top 100 blawgs for 2011!

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