U.S. Supreme Court: Wal-Mart Class Action Too Big; No Commonality

In the closely watched case of Wal-Mart Stores, Inc. v. Dukes, et al., the U.S. Supreme Court on Monday torpedoed what would have been the largest class-action lawsuit in American history against the nation's largest private employer.

In a 5-4 decision, the Court held that the proposed class, which would have consisted of approximately 1.5 million current and former female employees of Wal-Mart, who have alleged the presence of a corporate culture of gender and sex discrimination against women, failed to meet the "commonality" requirement for permissible class certification.

"Commonality" is a prerequisite set forth in the Federal Rules of Civil Procedure, which requires that there exist "questions of law or fact common to the class," before a group may properly be certified as a class. One of the tests by which commonality may be established is by setting forth "significant proof" that an employer "operated under a general policy of discrimination."

In short, the majority held that significant proof of a "general policy of discrimination" on behalf of Wal-Mart was entirely absent in this case. The majority noted that not only was plaintiff's sociological expert unable to provide a definitive opinion on this issue, but also that Wal-Mart's corporate policy is to provide each of its local supervisors with discretion over employment matters - a policy that is, by definition, the opposite of having the type of uniform employment practice that is needed to establish commonality for purposes of class certification.

The majority also held that the plaintiffs had failed to identify and challenge a specific employment practice that was alleged to be discriminatory and which was common to all 1.5 million class members.

The Court's decision to deny certification in this case is significant in that it will have a significant impact upon future discrimination claims against large employers, undoubtedly making it harder for plaintiffs to achieve class-status. Class-actions are, in many instances, the only real vehicles by which discriminatory policies or actions by large or multi-national employers can be successfully challenged. As compared to small, individual claims, class-actions with numerous class members often carry with them the prospect of very large verdicts that can quickly change (or destroy) a corporate image and bottom-line. Additionally, the economics of many discrimination claims (such as wage-and-hour claims) are simply not worth an attorney's time or money prosecuting on behalf of a single employee, as the potential recoverable damages often cannot justify the time and expense necessary to prevail through trial. Unfortunately, if class-actions now become harder to certify and maintain following this case, the sad truth is that many instances of discrimination or employment law violations may simply go unchecked or unchallenged.

You can read the Supreme Court's full opinion in Wal-Mart Stores, Inc. v. Dukes, et al. here: http://www.supremecourt.gov/opinions/10pdf/10-277.pdf

U.S. Supreme Court: Complaints By Public Employees Under Constitution's "Petition Clause" Only Protected If Related To Matters of Public Concern

In Borough of Duryea v. Guarnieri, the U.S. Supreme Court held that a public employee who makes a complaint to a governmental employer under the "Petition Clause" of the U.S. Constitution is only protected from retaliation where the petition involves a matter of public concern. This decision harmonizes public employee complaints under the First Amendment's "Petition Clause" with prior Supreme Court decisions involving public employee complaints under the First Amendment's "Free Speech" clause.

The First Amendment to the U.S. Constitution protects "the right of the people. . . to petition the Government for a redress of grievances," (called the "Petition Clause") as well as the people's right to "freedom of speech (called the "Speech Clause)." This case concerned the extent to which public employees are protected by the Petition Clause when they make routine complaints to governmental employers.

Guarnieri was a police chief for a local borough in Pennsylvania, who filed a union grievance against the borough, challenging his termination. Following a subsequent arbitration, Guarnieri was ordered to be reinstated by the borough. After his reinstatement, borough council issued 11 written directives to Guarnieri concerning the performance of his duties. Guarnieri then filed a lawsuit against the borough, arguing that his original union grievance was a "petition" that was protected by the First Amendment's Petition Clause, and that the 11 directives that were subsequently issued by borough council were issued illegally in retaliation for Guarnieri's protected activity in filing a petition.

Diverging from the decisions of other Circuits, the Third Circuit Court of Appeals agreed, and held that Guarnieri's petition (in the form of his union grievance), was protected under the Petition Clause, even if the content of that petition did not address a matter of public concern.

The U.S. Supreme Court disagreed, and reversed the decision of the Third Circuit. In a 7-2 decision, with Justice Thomas filing a concurring opinion and Justice Scalia filing an opinion concurring in part and dissenting in part, the Court held that in order to find protection for complaints to governmental employers filed under the Petition Clause, public employees must be petitioning about a matter of public concern. The majority opinion noted that public employees who complain to their governmental employers enjoy protection from retaliation under the First Amendment's Speech Clause only where their complaints involve "matters of public concern," as opposed to matters of "purely private concern." Given this premise, the majority found no distinguishing reason to treat a public employee's "petition" to a government employer under one section of the First Amendment differently from a public employee's "speech" under a different section of the First Amendment.

Therefore, the Court's majority laid down the following rule: "If a public employee petitions as an employee on a matter of purely private concern, the employee's First Amendment interest must give way, as it does in speech cases. When a public employee petitions as a citizen on a matter of public concern, the employee's First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. If that balance favors the public employee, the employee's First Amendment claim will be sustained. If the interference with the government's operations is such that the balance favors the employer, the employee's First Amendment claim will fail even though the petition is on a matter of public concern."

You can read the Supreme Court's full decision in Borough of Duryea v. Guarnieri here: http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf

U.S. Supreme Court: States May Revoke Business Licenses of Employers Who Knowingly Hire Illegal Aliens

In the recent decision of Chamber of Commerce v. Whiting (5/26/2011) the U.S. Supreme Court upheld an Arizona law that: (1) allows the state to revoke the business licenses of private employers who knowingly or intentionally employ unauthorized aliens; and (2) requires all private employers to use the federal "E-Verify" system to confirm the immigration status of their employees. Following this decision, any other state in the nation may, if it chooses, adopt an employer-licensing law that provides for the same requirements and penalties as the Arizona statute.

The "Legal Arizona Workers Act of 2007" allows Arizona courts to suspend or revoke any necessary business licenses of private employers within Arizona if an employer knowingly or intentionally employs an unauthorized alien. The Act also requires that every private employer, after hiring a new employee, "shall verify the employment eligibility of the employee," using "E-Verify," which is federal internet database maintained by the federal government that allows an employer to receive basic information relating to an employee's work-authorization status. Use of the E-Verify system under federal level is strictly voluntary, as the Secretary of Homeland Security is expressly prohibited from requiring any person or entity outside of the federal government from participating in the E-Verify program.

The U.S. Chamber of Commerce and various other business groups sued various Arizona public officials charged with administering the Legal Arizona Workers Act of 2007, arguing that the law's provisions were both expressly and impliedly preempted by federal immigration law. After examining the statutory text and operations of both the federal immigration law and the Legal Arizona Workers Act, a 5-3 majority of the Court determined that nothing in the federal immigration law prevented Arizona from adopting, implementing and enforcing the Legal Workers Act as it had.

Going forward, the majority's sanction of the provisions of the Legal Arizona Workers Act opens the door for any other state that wishes to adopt the same manner of enforcement scheme, to pass their own statutes that are identical to Arizona's, without concern over whether it is constitutionally permissible to do so. Whether any states will choose to follow suit and create the same type of license-revocation sanction as exists under Arizona law for an employer's knowing and intentional employment of unauthorized aliens, remains to be seen.

You can read the Court's full opinion in Chamber of Commerce v. Whiting here: http://www.supremecourt.gov/opinions/10pdf/09-115.pdf

U.S. Supreme Court: Oral Complaints Are Sufficient To Invoke Anti-Retaliation Provisions of the Fair Labor Standards Act

In Kasten v. Saint-Gobain Performance Plastics Corp., 09-834 (3/22/2011),the U.S. Supreme Court held that the anti-retaliation provision of the Fair Labor Standards Act (FLSA) protect employees who make oral complaints to an employer, when "a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting," his or her rights under the FLSA. This decision settles a disagreement that had existed among the Circuit Courts of Appeals as to whether oral complaints were sufficient, or whether the FLSA required an employee to file a written complaint before he/she could be protected from retaliation.

By way of background, the FLSA generally provides that employers that fall within its scope must pay non-exempt employees overtime pay at a rate of one-and-one-half the employee's regular rate of pay, for all hours that an employee works in excess of 40 in any week. Section 215(a)(3) of the Fair Labor Standards Act makes it illegal for an employer: "to discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee." 29 U.S.C. 215(a)(3). As mentioned above, the Courts of Appeals have been in disagreement as whether the phrase "filed any complaint," requires a formal written complaint, or encompasses informal oral complaints as well.

In this case, the employee, Kasten, had made various oral complaints to his employer about the physical location of time-clocks in his place of employment, which were located between the area where Kasten and his other co-workers would put on and take off their work-related protective gear, and the area where they performed their job duties. Kasten believed that this placement prevented the workers from receiving credit for time that they spent "donning and doffing" their required protective gear, which is a violation of the FLSA. Kasten claimed to have made repeated oral complaints about the time-clock location to his employer in accordance with the employer's internal grievance procedure, and orally complained to his shift supervisor that "it was illegal for the time clocks to be where they were," because of the employer's exclusion of "the time you come in and start doing stuff." Kasten also complained to a member of the HR department that if the location of the time clocks "were to get challenged," in court, the employer "would lose." He also told his lead operator that the location was illegal and that he "was thinking about starting a lawsuit about the placement of the time clocks."

Kasten alleged that these complaints led his employer to discipline, and ultimately, terminate him.

The lower courts had dismissed Kasten's claims of retaliation, holding that the FLSA did not protect "oral" complaints, but required an employee to file written complaints to an employer before he/she could take advantage of the FLSA's anti-retaliation provision.

The U.S. Supreme Court disagreed, and held that the FLSA's anti-retaliation provision protects both oral and written complaints. Finding that the text of the FLSA itself did not provide a conclusive answer to this issue, the Court's majority looked to the purpose and history of the FLSA, and concluded that limiting complaints by employees to only formal written complaints, would undermine the legislative purpose and intent of the Act, which was originally meant to protect illiterate and uneducated manufacturing laborers. The majority also noted that restricting complaints to only those in writing would prevent the Government agencies from using hotlines, interviews and other methods of receiving complaints from employees.

However, the Court did not go so far as to offer protection to all oral complaints, recognizing that the FLSA does require fair notice of alleged violations to be given to employers. Therefore, the majority held that while "fair notice" does not necessarily have to be in writing, an oral complaint will only be deemed to be "filed" under the anti-retaliation provision of the FLSA when "a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting," his or her rights under the FLSA. Under the facts of this case, the majority determined that Kasten's oral complaints to his employer and supervisors met this objective test, and thus allowed Kasten's suit to proceed.

You can read both the majority and dissenting opinions in Kasten v. Saint-Gobain Performance Plastics Corp., here: http://www.supremecourt.gov/opinions/10pdf/09-834.pdf

Store Manager Is FLSA Exempt, Says Employer. Not So Fast, Says Court.

In Pierce v. Dolgencorp, Inc., the U.S. District Court for the Middle District of Pennsylvania held that a Store Manager's claim that she was owed unpaid overtime wages under the Fair Labor Standards Act (FLSA) could be sent to a jury for determination. In so doing, the Court rejected the employer's arguments that the Store Manager had to be classified as an "executive employee" as a matter of law.

Cindy Pierce was originally hired by Dollar General as a cashier in 1998. In 2001, she was promoted to Store Manager, and continued to work in that capacity until June or July of 2003. As a Store Manager, Pierce was the only salaried employee and the only employee who was classified as "FLSA exempt" by Dollar General.

As a Store Manager, Pierce had at least one Assistant Store Manager (ASM) and one clerk, and managed a store budget of over 200 hours per week. When she was first hired as Store Manager, Pierce earned $355.77 per week. By April, 2002, she was earning $423.08 a week, and understood that her salary was meant to compensate her for however many hours she worked. Pierce's ASM was paid $6.20 per hour. Pierce testified that she usually worked 50 to 60 hours a week, and sometimes as much as 65 hours a week. As Store Manager, Pierce interviewed and hired employees without approval from her District Manager, trained employees, disseminated and enforced corporate policies, evaluated employee performance, disciplined employees, fired and promoted employees, ensured store security and safety, monitored sales, damages, employees and hours, directed employees' work assignments and scheduled employees' hours. Pierce 30%-50% of her time performing paperwork, and it took her 5-6 hours just to complete the employees' work schedules. Pierce was unquestionably the store's leader.

On the other hand, Pierce testified that she spent 4 - 6 hours everyday stocking shelves and on "truck days," (which occurred about twice a week) Pierce and her ASM spent 75% of her time unloading and inventorying the delivery to the store. It would normally take two days to have delivery items unloaded and stocked on store shelves. She also ran the store registers when needed. Pierce had to request permission to take days off from her District Manager, and the store layout was dictated by a "planogram," that was created and disseminated by the District Manager. Pierce testified that she did not have discretion to set up the store as she would have liked. Pierce also spent 5 - 6 hours a week sweeping the floors and doing other non-managerial work. Pierce received excellent reviews in the area of "payroll control," which she attributed to her personally working more hours and not hiring extra employees.

In June of 2003, Pierce resigned from Dollar General because of stress associated with her job. In March of 2004, she made claims against Dollar General for unpaid overtime wages.

Dollar General (a.k.a. Dolgencorp, Inc.), argued that Pierce was not entitled to overtime pay for the period in which she served as Store Manager because she was properly classified as an "executive" employee, which is exempt from the overtime requirements of the FLSA. Dollar General argued that as Store Manager, Pierce's primary duty was management, and that she spent most of her time engaged in management work. Dollar General filed a Motion for Summary Judgment on this point, seeking dismissal of Pierce's claims.

The District Court disagreed, and held that Pierce had presented enough evidence to allow a jury to determine whether she spent most of her time performing managerial or non-managerial work. Specifically, the Court found that: (1) based on her testimony, a jury could determine that Pierce spent 25% - 30% of her time doing paperwork, and the remainder of her time performing manual labor; (2) a jury could conclude that Pierce's non-managerial work, such as unloading trucks, stocking shelves and running the registers, was more valuable to Dollar General than her managerial duties, because it saved Dollar General the expense of having to hire additional employees to perform the same work, evidenced by the fact that Dollar General refused to grant her more employees for her budget; and (3) when the respective hourly rate of pay of Pierce and her ASM is compared, a jury could find that Pierce was actually paid comparatively less than her ASM for an equivalent amount of hours (approximately 96% of her ASM's salary). Therefore, the District Court denied Dollar General's Motion and held that Pierce's claims must be determined by a jury.

The lesson to be learned from this case is clear: job titles are not everything. Just because someone holds a "manager" position does not mean that that individual is automatically exempt from the overtime pay requirements of the FLSA. Indeed, as this case shows, even performing some managerial tasks and duties in the course of employment does not entitle an employer to rely upon an "executive" exemption in every instance. As the District Court noted, the focus in these types of cases will be on the employee's "actual day-to-day activities, as opposed to generic job descriptions or performance evaluations." Things are not always as they seem at first glance.

US Supreme Court Adopts "Cat's-Paw" Theory In Military Discrimination Case

In Staub v. Proctor Hospital, decided on March 1, 2011, the U.S. Supreme Court held, in the context of a case involving an employer's alleged violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." The significance of this opinion is two-fold: First, the Court through this opinion has explicitly sanctioned the applicability of "cat's-paw" theories of liability in an employment discrimination context. Second, there is nothing in the language of this decision that would suggest that the Court's analysis in this case is strictly confined to cases arising under USERRA. To the contrary, the Court itself acknowledges in the majority opinion that the operative statutory language of the USERRA, which prohibits an employer from denying employment or the benefits of employment to any person on the basis of that individual's membership in or obligation to a branch of the military, is "very similar to Title VII." As such, employees can now rely on this decision to advance "cat's-paw" theories of liability against employers in the traditional discrimination cases arising under Title VII.

In this case, Vincent Staub worked as a medical technician for Proctor Hospital under 2004 when he was terminated for allegedly violating a "Corrective Action" disciplinary warning that had been placed in his employment file by his supervisors, Janice Mulally and Michael Korenchuk.

While employed at Proctor, Staub was a member of the U.S. Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks per year. At Staub's subsequent employment discrimination trial, the jury determined that both Mulally and Korenchuk were hostile to Staub's military obligations. Specifically, Mulally had scheduled Staub for additional shifts without notice so that he would "pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves," and Mulally had also informed one of Staub's co-workers that Staubs's "military duty had been a strain on the department," and asked that co-worker to help her "get rid of" Staub. Korenchuk referred to Staub's obligations to the Reserves as "a bunch of smoking and joking and a waste of taxpayers' money," and was aware that Mulally was "out to get" Staub.

In January of 2004, Mulally issued Staub a "Corrective Action" disciplinary warning for purportedly violating a company rule that required him to stay in his work area whenever he was not seeing a patient. This warning required Staub to report to either Mulally or Korenchuk when he had no patients or when his patient testing was completed. Staub contended at trial that the company rule allegedly invoked by Mulally did not exist, and that even if it did, he did not violate it.

On April 2, 2004, one of Staub's co-workers complained to Proctor's vice-president of human resources, Linda Buck, and to Proctor's chief operating officer, Garrett McGowan, about Staub's unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would "solve Staub's availability problems." Before such a plan could be put in place, however, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of his January Corrective Action notice. Relying upon this accusation (which Staub contended was entirely false), Buck reviewed Staub's personnel file and terminated him. Staub's termination notice stated that Staub had been terminated for violating the directive contained in Mulally's January Corrective Action notice.

Staub challenged his termination through Proctor's internal grievance procedures. Staub contended that his termination was improper because Mulally had fabricated the allegation underpinning the January Corrective Action notice due to her hostility towards his military obligations. Buck did not follow up with Mulally with respect to Staub's allegation, and did not reverse Staub's termination.

Staub then sued Proctor claiming a violation of the USERRA, alleging that his termination was illegal as it was motivated by hostility towards his U.S. Army Reserve obligations. Specifically, Staub argued that although Buck herself (who had actually terminated Staub), held no such hostility, Mulally and Korenchuk clearly did, and that "their actions influenced Buck's ultimate employment decision." Staub's claim proceeded to a jury trial, where the jury found in his favor and awarded him $57,640.00 in damages.

On appeal, the Seventh Circuit Court of Appeals reversed, holding that a "cat's-paw" theory of liability, such as the one that Staub had advanced in this case, could not be maintained unless the non-decisionmaker had exercised "singular influence," over the actual decisionmaker so that the decision to terminate was the "product of blind reliance." The Seventh Circuit held that since the evidence in this case showed that Buck was not "wholly dependent" upon either Mulally's or Korenchuk's advice, Staub had no cause of action under USERRA.

In a unanimous decision with two Justices concurring in the judgment, the Supreme Court reversed. The Court noted recognized that when creating a tort action under federal law, Congress "adopts the background of general tort law," including the concept of "proximate cause." In claims for intentional torts, for example, the Court noted that in order to be found liable, an individual must intend not only "the act itself," but "the consequences of the act." Therefore, adopting these tenets and applying them to the operative language of the USERRA statute, the Court held that: "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." As such, in order to prevail in such actions, a plaintiff cannot hold an employer liable simply by showing that the ultimate decisionmaker relied upon information that was (unbeknownst to the decisionmaker) prompted by discrimination. Rather, the plaintiff must prove that the originator of that discriminatory information created the information with the intent that such information would cause the plaintiff to suffer an adverse employment action.

The Court rejected Proctor's suggestion that the Court adopt a rule that a decisionmaker's independent investigation and rejection of an employee's allegations of discriminatory animus can insulate an employer from liability, as such an action would negate the effects of any prior discrimination. The Court held that "we are aware of no principle in tort or agency law under which an employer's mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of 'fault.' The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." The Court also rejected Justice Alito's suggestion that an employer should be held liable only when it "should be regarded as having delegated part of the decisionmaking power to the biased supervisor."

While it reversed the decision of the Seventh Circuit, the Court explicitly left two questions unanswered: First, the Court expressed no opinion as to whether an employer could be held liable under such a "cat's-paw" theory of liability if a co-worker, rather than a supervisor, committed a discriminatory action that influenced a subsequent adverse employment action. Second, the Court acknowledged that in this case, Staub took advantage of Proctor's internal grievance procedures after having been terminated, but refused to comment on whether Proctor would enjoy an affirmative defense to liability had Staub not done so. Therefore, one is likely to see these issues being litigated in the lower courts in the future.

You can read the Supreme Court's full opinion in Staub v. Proctor here: http://www.supremecourt.gov/opinions/10pdf/09-400.pdf

Proposed House Bill Would Prohibit Disclosure of Prior Criminal Convictions on Employment Applications in Pennsylvania

House Bill 747, which was introduced in the Pennsylvania General Assembly on February 17, 2011, would amend the Pennsylvania Human Relations Act (Pennsylvania's Title VII / ADA / ADEA equivalent), to prohibit employers with more than four employees in Pennsylvania to require job applicants to disclose criminal histories on employment applications, unless the job being applied for has predetermined security regulations established by the Federal or State Governments.

Pennsylvania law already limits the manner in which an employer may use a job applicant's criminal history record. In deciding on whether or not to hire a job applicant, an employer may only consider the applicant's prior felony or misdemeanor convictions to the extent that those convictions "relate to the applicant's suitability for employment in the position for which he has applied," and must notify a job applicant in writing if the decision not to hire the applicant was based "in whole or in part on criminal history record information."

Anti-Discrimination Ordinance Adopted In Haverford Township

At its February 14, 2011 Board of Commissioners' meeting, Haverford Township in Delaware County, PA, adopted a new anti-discrimination ordinance, which provides broader protections against employment and other types of discrimination than the current federal and state anti-discrimination laws.

Like Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act, the new Haverford Ordinance prohibits employment discrimination within the Township on the traditional bases of race, color, religion, ancestry, age, sex, national origin, handicap or disability and the use of a support animal.

Unlike its federal and state counterparts, however, the new Haverford Township Ordinance also prohibits discrimination on the basis of sexual orientation, gender identity and gender expression. The term "gender identity" is defined as "the gender(s), or lack thereof, a person self-identifies as, whether or not based on biological fact or sexual orientation." The term "gender expression," refers to "the manner in which a person's identity is communicated or perceived by others, through appearance, behavior, or physical characteristics that may be in accord with, or opposed to, one's physical anatomy, chromosomal sex, or sex at birth, and shall include, but is not limited to, persons who are undergoing or have completed sex change."

The prohibitions on employment discrimination under the new Ordinance encompass all those employer actions that are currently prohibited by the Pennsylvania Human Relations Act (which, in turn, takes most of its prohibited practices from the federal case law that has developed under Title VII), against any of the protected classes listed above.

The Haverford Township Anti-Discrimination Ordinance applies to every employer that has four or more employees within the Township.

This Ordinance also establishes an 11-member Human Relations Commission for Haverford Township, which is charged with enforcing the provisions of the Ordinance. The Commission has the authority to order affirmative action by an employer to correct or compensate for employment discrimination, such as ordering back pay, the hiring, promotion or reinstatement of an aggrieved employee, and the making of reasonable accommodations. The Commission may also assess a civil penalty against any employer who violates this Ordinance up to a maximum amount of $5,000.00, along with an award of attorneys' fees to a successful employee. Attorneys fees for an employer who prevails in any complaint made against it under this Ordinance may also seek attorneys fees, but only if it can prove that the complaint was brought in bad faith. Any order of the Human Relations Commission is appealable to the Court of Common Pleas of Delaware County.

If you are an employer in Haverford Township with four or more employees, or if you work for an employer in Haverford Township with four or more employees, and want to discuss your rights or obligations under this new Ordinance, please call the law office of Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C., at 484-842-0363 or 610-565-3700, to speak with Michael Davey, Esq..

Michael Davey Interviewed By "Easy Small Business HR" - Podcast Now Available For Download!

I recently had the pleasure of being interviewed by Dianne Austin, who runs a great informational website called "Easy Small Business HR," which is focused on employment and HR issues that confront small businesses. Our interview covered topics such as the top 3 employment law issues that employers need to be mindful of, the most common complaints that employees level against their employers and actions that get employers into trouble. I had a great time giving the interview and answering Dianne's questions, and I hope everyone gets a chance to listen to the podcast and receive some valuable and helpful information.

You can download the interview directly from Dianne's website at http://easysmallbusinesshr.com/2011/02/esbhr-podcast-interview-employment-law-advice-michael-davey-esq/ Or, you can find the interview on iTunes by searching for "Easy Small Business HR Podcast," as well as on Easy Small Business HR's Twitter and Facebook pages.

Thanks again Dianne!

"Marital Status" As A Protected Class Under the PA Human Relations Act? Maybe.

On January 26, 2011, Senate Bill 280 was introduced into the Pennsylvania General Assembly, which would amend the Pennsylvania Human Relations Act (PaHRA) to prohibit discrimination, including employment discrimination, on the basis of an individual's "marital status." The proposed bill defines "marital status" as referring to whether an individual is "single, married, divorced, separated or widowed."

If S.B. 280 is passed, all of the employment practices that the PaHRA currently prohibits with respect to race, color, religious creed, ancestry, age, sex, national origin, handicap or disability, would be extended to reach one's "marital status," as well. This would mean that an employer would be prohibited under the PaHRA from: (1) refusing to hire an individual because of his/her marital status; (2) firing an individual because of his/her marital status; (3) otherwise discriminating against an individual because of his/her marital status; (4) inquiring into an employee's, or prospective employee's, marital status; and (5) asking questions about an individual's marital status on any application for employment, just to name a few.

And, given the fact that the courts in Pennsylvania have traditionally employed identical analyses when interpreting the provisions of Title VII and the PaHRA, one wonders whether this proposed addition would also permit a claim for hostile work environment based upon one's marital status? So, as a "head's up" to any married men (or women) out there who work in an office full of bachelors (or bachelorettes) who are forced to listen to constant stories of wild singles parties, drunken weekend "conquests" and happy-hour strip-club campaigns, keep an eye on this legislative gem - you may actually find yourself being a member of a "protected class" before too long.

You can read the full version of S.B. 280 by going to the PA General Assembly website at by going to the PA General Assembly website at http://www.legis.state.pa.us/index.cfm

Bill To Raise State Minimum Wage Introduced in PA Senate

On January 24, 2011, Senate Bill 235 of 2011 was introduced in the PA State Senate, which calls for an annual cost-of-living increase in the state minimum wage beginning on January 1, 2012 and continuing every January 1 thereafter. The amount of the cost-of-living increase would be calculated by applying the percentage change in the Consumer Price Index for all Urban Consumers in Pennsylvania, New Jersey, Delaware and Maryland, using the most recent 12-month period figures that have been officially submitted to the U.S. Department of Labor, Bureau of Labor Statistics. S.B. 235 also provides that the Secretary of Labor and Industry would be responsible for setting the actual percentage increase and the minimum wage amounts each year.

Pennsylvania's Minimum Wage was last increased in 2009 and is currently $7.25 per hour, equivalent to the Federal Minimum Wage.

S.B. 235 was introduced by State Senator Christine Tartaglione (D-Philadelphia) and other sponsors. You can read the full text S.B. 235 by going to the PA General Assembly website at http://www.legis.state.pa.us/index.cfm

U.S. Supreme Court - Government Employers May Ask "Reasonable Questions" in Employment Background Investigations

On January 19, 2011, in the case of NASA v. Nelson, et al., the U.S. Supreme Court held that governmental employers are permitted to ask "reasonable questions," during employee background investigation checks without running afoul of employees' constitutional privacy rights.

This case concerned an employee background check process employed by NASA, consisting of two questionnaire forms. The first asked whether an employee had "used, possessed, supplied, or manufactured illegal drugs in the last year," and if so, then required the employee to describe the details of any "treatment or counseling received." Employees were also required to sign a release authorizing the Government to obtain personal information about employees from schools and past employers. The second form then asked open-ended questions about whether NASA had "any reason to question," an employee's "honesty or trustworthiness," or whether an employee had "adverse information," concerning an employee's "violations of the law," "financial integrity," "abuse of alcohol and/or other drugs," "mental or emotional stability," "general behavior or conduct," and "other matters." If an employee checks "yes" to any of those categories, the form required a further written explanation.

Various NASA employees sued, claiming that NASA's subjecting them to this employment background check process violated their constitutional right to "informational privacy." The District Court refused the employees' request for a preliminary injunction, but the Ninth Circuit Court of Appeals reversed, holding that with respect to the first form, NASA's requirement that an employee disclose drug treatment and counseling furthered no legitimate government interest and was thus likely unconstitutional. With respect to the second form, the Ninth Circuit determined that the open-ended questions asked by NASA were not narrowly tailored to meet the government's interests in verifying the employees' identities, and thus, likely violated the employees' constitutional rights.

In granting certiorari, the U.S. Supreme Court had the opportunity, for the second time in two years, to address the available breadth of privacy rights that may, or may not, be held by individuals who are employed in the public sector. One year ago, the Supreme Court had a similar opportunity in City of Ontario v. Quon, 130 S. Ct. 2619 (2010), which concerned whether a SWAT officer had a reasonable expectation of privacy in the content of text messages he had sent over a city-issued pager. In Quon, however, the Supreme Court specifically avoided any issues concerning employee privacy rights under the Fourth Amendment, but instead opted to resolve the case by holding that any search of the officer's text messages conducted by the City was reasonable, and thus, could not be a violation of the Fourth Amendment. For a thorough analysis of this case, see my earlier post entitled "U.S. Supreme Court Side-Steps Questions of Employee Privacy in Electronic Communications," from June 18, 2010..

In Nelson, however, the Supreme Court took the same tack as it did in Quon and once again avoided discussion concerning the thorny issues involving the privacy rights of public employees in the workplace. Instead, the Court stated that "we will assume for present purposes that the Government's challenged inquiries implicate a privacy interest of constitutional significance." That being said, however, the Court then proceeded to overrule the decision of the Ninth Circuit, and held that "whatever the scope of this [privacy] interest, it does not prevent the Government from asking reasonable questions of the sort included on the [NASA forms] in an employment background investigation that is subject to the [federal] Privacy Act's safeguards against public disclosure."

In so holding, the Supreme Court reaffirmed the long-standing tenet that "the Government has a much freer hand in dealing with citizen employees than it does when it brings its sovereign power to bear on citizens at large." The Court also recognized that the types of questions being challenged in this case were "part of a standard employment background check of the sort used by millions of private employers," that "the Government itself has been conducting employment investigations since the earliest days of the Republic," and that "[s]tandard background investigations similar to those at issue here became mandatory for all candidates for the federal civil service in 1953." As such, the Court recognized that the federal government has an interest in performing background checks on its employees and that "[r]easonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable work-force."

The Court rejected out of hand the employees' claims that the Government's broad authority in regulating and managing its affairs should not apply with as great a force to them, as they were "contract employees," not civil servants. The Court found this argument placed form over substance, holding that "the Government's interest as 'proprietor' in managing its operations . . . does not turn on such formalities," and noting that on the record before it, there was no relevant distinctions between the duties performed by NASA's civil servants and its contract employees.

Against this back-drop, the Court held that the questions asked by NASA on the two employment background check forms were "reasonable, employment-related inquiries that further the Government's interests in managing its internal operations." Specifically, the Court noted that the Government has a "good reason to ask employees about their recent illegal-drug use," namely, to ensure that it will have its "projects staffed by reliable, law-abiding persons who will efficiently and effectively discharge their duties." With this legitimate purpose, the Court determined that the form's follow-up questions concerning any treatment or counseling for illegal-drug use was also a reasonable method by which the Government could separate out those individuals who have taken steps to address and overcome their illegal drug problems, and use this as a mitigating factor in making employment decisions. In the Court's words, this "is a reasonable, and indeed humane, approach. . ."

The Supreme Court also rejected outright the employees' argument that the Government "when it requests job-related personal information in an employment background-check, has a constitutional burden to demonstrate that its questions are necessary or the least restrictive means of furthering its efforts."

The Court also held that the open-ended questions that so troubled the Ninth Circuit Court of Appeals, were in fact "reasonably aimed at identifying capable employees who will faithfully conduct the Government's business," and similar in type and scope to employment background questions frequently used by employers in the private sector.

Lastly, the Court recognized that any privacy interests held by the employees here were further protected by the fact that the NASA forms were governed by the federal Privacy Act, which allows the Government to maintain records about an employee "only to the extent the records are relevant and necessary to accomplish a purpose authorized by law," and requires "written consent before the Government may disclose records pertaining to any individual."

Therefore, in light of the Privacy Act's nondisclosure requirements, coupled with the fact that the questions posed on the two NASA forms "consist of reasonable inquiries in an employment background check," the Court held that NASA's background process did not violate any "constitutional right to informational privacy."

In a notable concurring opinion, Justice Scalia (joined by Justice Thomas), stated that he would have decided the case "on simpler grounds." Specifically, that "[a] federal constitutional right to 'informational privacy' does not exist." This concurrence may be a gloomy portent of how the Supreme Court may examine the issue of public-employee privacy rights in electronic communications when, and if, the Court ever decides to take it up.

You can read the full version of the Court's opinion here: http://www.supremecourt.gov/opinions/10pdf/09-530.pdf

U.S. Supreme Court Recognizes Third-Party Retaliation Claims Under Title VII

On January 24, 2011, the U.S. Supreme Court held, in the closely-watched case of Thompson v. North American Stainless, LP that Title VII's anti-retaliation provision permits "third-party retaliation claims."

Prior to 2003, Eric Thompson and his fiance, Miriam Regalado were employees of North American Stainless (NAS). In February of 2003, NAS was notified by the EEOC that Regalado had filed a charge alleging sex discrimination. Three weeks later, Thompson was fired by NAS.

Thompson then filed his own charge with the EEOC, claiming that NAS had terminated him in order to retaliate against Regalado for her filing a sex discrimination charge with the EEOC. The district court dismissed Thompson's claim, holding that Title VII did not permit third-party retaliation claims. The Sixth Circuit, after a rehearing en banc, affirmed the dismissal of Thompson's claim, holding that he had not engaged in any statutorily protected conduct under Title VII.

On appeal, the Supreme Court reversed, and held that Thompson has a viable retaliation claim under Title VII. First, the Court noted that "we have little difficulty concluding that if the facts alleged by Thompson are true, then NAS's firing of Thompson violated Title VII." The Court reaffirmed that "Title VII's antiretaliation provision must be construed to cover a broad range of employer conduct," and that this provision "prohibits any employer action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." Given this basis, the Court stated that "[w]e think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired."

While recognizing that third parties are protected from retaliation under Title VII, the Court refused "to identify a fixed class of relationships for which third-party reprisals are unlawful," but re-emphasized that the standard for judging harm under the anti-retaliation provision "must be objective."

The more difficult question facing the Court was whether Thompson had standing to sue NAS within Title VII's category of a "person claiming to be aggrieved." First, the Court specifically rejected the argument that Title VII's "person claiming to be aggrieved," language automatically grants any individual who suffers harm under Title VII Article III standing in every instance. But, the Court also rejected NAS's opposite argument that Title VII's "person claiming to be aggrieved," language refers only to the employee who is engaged in the protected activity. As such, the Court settled on a middle-ground approach and adopted the "zone of interests" test that has been applied to determine whether a person "adversely affected or aggrieved," has Article III standing to sue under the Administrative Procedure Act. This test states that a plaintiff may not sue unless he/she "falls within the zone of interests sought to be protected by the statutory provision whose violations forms the legal basis for his complaint." The Court described this test as prohibiting Article III standing "if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit."

Applying this test to Thompson, the Court had little trouble concluding that Thompson fell within the "zone of interests" protected by Title VII. Specifically, Thompson was an employee of NAS and Title VII is meant to protect employees from employer's unlawful actions. The Court also noted that Thompson was not "an accidental victim of retaliation - collateral damage, so to speak, of the employer's unlawful act. To the contary, injuring him was the employer's intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her." As such, the Court found that Thompson was "well within the zone of interests sought to be protected by Title VII," and permitted his claim to proceed.

You can read the full version of the Supreme Court's opinion here: http://www.supremecourt.gov/opinions/10pdf/09-291.pdf

Superior Court Decision Reveals Legal Discord Over Claims of Intentional Inference With Contractual Relations By At-Will Employees

In the non-precedential decision of Haun v. Community Health Systems, Inc., et al., No.: 2350 EDA 2009 (PA Super. 12/20/2010), the Pennsylvania Superior Court affirmed a ruling by the trial court, which dismissed an at-will employee's claims for intentional interference with contractual relations. The dissenting opinion, however, shows that this area of Pennsylvania law is still arguably unsettled.

By way of backgroun, Richard Haun served as the Chief Financial Officer at Phoenixville Hospital from June, 2007 until November 12, 2008. Haun was an at-will employee in his position as CFO.

On August 23, 2007, Haun's wife gave birth to premature twins at Phoenixville Hospital. The twins were taken to the Neonatal Intensive Care Unit at Phoenixville Hospital, and while in the Unit, one of the twins became disconnected from an IV line. This caused extensive blood loss to the baby, which in turn, resulted in severe and irreversible injury to the baby's central nervous system.

Shortly thereafter, Haun and his wife filed a medical malpractice suit against Phoenixville Hospital, its corporate parents and a number of the doctors and nurses of Phoenixville Hospital.

Five days after being served with the suit, the Interim President for the corporate hospital defendants sent an email to the CEO of Phoenixville Hospital, instructing the CEO to have a discussion with the Chief Counsel for the corporate hospital defendants about the possibility of terminating Haun's employment. On November 12, 2008, the CEO of Phoenixville Hospital and the Phoenixville Hospital Human Resources Director met with Haun and informed him that he was being fired from the hospital because he was "an adversary of the company and it's too much risk." Haun was then immediately escorted from the building and was denied the opportunity to collect his personal effects.

After being fired from Phoenixville Hospital, Haun filed a second suit against the Hospital and its corporate parents, alleging, among other claims, wrongful termination in violation of public policy and intentional inference with contractual relations. The corporate defendants filed objections seeking dismissal of his intentional interference claim, arguing that Pennsylvania law does not recognize such a cause of action for a current at-will employee. (The defendants also filed an objection seeking to dismiss Haun's wrongful termination claim, which was denied by the trial court and affirmed on appeal. For a full discussion of this claim, see my previous post).

The trial court dismissed Haun's claim, and on appeal, this decision was affirmed by the Superior Court.

Specifically, the Superior Court looked to its previous panel decision in Hennessy v. Santiago, 708 A.2d 1269 (Pa. Super. 1998), which held that an at-will employee may not sue a third-party for intentional interference with an existing at-will employment contract. Rather, the Hennessy Court held that a cause of action for intentional interfence exists only with respect to prospective at-will employment relationships, not with presently existing at-will employment relationships. Therefore, relying upon the Hennessy decision, the Superior Court in this case upheld the dismissal of Haun's claim, noting that he was clearly a current at-will employee at the time of his termination.

The dissenting opinion, however, raises a compelling argument that the Hennessy decision was wrongly decided, as being in conflict with previous Superior Court decision. First, the dissent noted that in the prior case of Curran v. Children's Service Center, 578 A.2d 8 (Pa. Super. 1990), another panel of the Superior Court unequivocally held that "a cause of action for intentional interference with a contractual relationship may be sustained even though the employment relationship is at-will." And, having been decided before Hennessy, the dissent reasoned that Curran was the correct statement of the law and should be followed.

Additionally, the dissent notes that the decision in Curran relied upon Comment g of Section 766 of the Restatement (Second) of Torts, which explicitly addresses contracts that are terminable at-will. Moreover, the Pennsylvania Supreme Court expressly adopted Section 766 in Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466 (Pa. 1979). Comment g states that an at-will employee has an interest in future relations between the employee and the employer, but has no legal assurance of them. For that reason, an interference in that interest would be closely analogous to interference with prospective contractual relations - a cause of action that has already been recognized and sanctioned for at-will employment in Pennsylvania. The dissent noted that the Hennessy Court failed to address either Section 766, Comment g, or the Curran decision, and as such, its reasoning should be viewed circumspectly.

The Pennsylvania Supreme Court has not yet rendered a decision addressing whether an at-will employee may maintain a claim for intentional interference with contractual relations against a third-party. But, the dissent in Haun sets forth a compelling argument that emphasizes the apparent lack of decisional consistency and clarity from the Superior Court on this issue. In such cases, it is usually only a matter of time before the Supreme Court recognizes the need to step in and settle the law. Hopefully, we will see a decision by the Supreme Court on this issue sooner rather than later.

Superior Court Allows Claim For Wrongful Discharge By Former Hospital Executive

In the non-precedential decision of Haun v. Community Health Systems, Inc., et al., No.: 2350 EDA 2009 (PA Super. 12/20/2010), the Pennsylvania Superior Court affirmed and adopted the decision of the trial court, which refused to dismiss a wrongful discharge claim filed by a former hospital executive.

Richard Haun served as the Chief Financial Officer at Phoenixville Hospital from June, 2007 until November 12, 2008. Haun was an at-will employee in his position as CFO.

On August 23, 2007, Haun's wife gave birth to premature twins at Phoenixville Hospital. The twins were taken to the Neonatal Intensive Care Unit at Phoenixville Hospital, and while in the Unit, one of the twins became disconnected from an IV line. This caused extensive blood loss to the baby, which in turn, resulted in severe and irreversible injury to the baby's central nervous system.

Shortly thereafter, Haun and his wife filed a medical malpractice suit against Phoenixville Hospital, its corporate parents and a number of the doctors and nurses at Phoenixville Hospital.

Five days after being served with the suit, the Interim President for the corporate hospital defendants sent an email to the CEO of Phoenixville Hospital, instructing him to have a discussion with the Chief Counsel for the corporate hospital defendants about the possibility of terminating Haun's employment. On November 12, 2008, the CEO of Phoenixville Hospital and the Phoenixville Hospital Human Resources Director met with Haun and informed him that he was being fired from the hospital because he was "an adversary of the company and it's too much risk." Haun was then immediately escorted from the building and was denied the opportunity to collect his personal effects.

After being fired from Phoenixville Hospital, Haun filed a second suit against the Hospital and its corporate parents, alleging, among other claims, wrongful termination in violation of public policy. The corporate defendants filed objections seeking dismissal of this claim, arguing that Haun had failed to plead any recognized public policy exception to Pennsylvania's employee at-will doctrine.

The trial court overruled this objection, holding that Haun had established a good-faith argument that his dismissal violated public policy. Specifically, the trial court found that the public policy of Pennsylvania favors allowing the victims of medical malpractice to seek adequate compensation and also favors parents asserting legal claims on behalf of their children. The trial court held that these precepts supported Haun's allegations that his termination for assisting his child in seeking compensation for alleged medical malpractice violated a clear mandate of public policy.

On appeal, the Superior Court agreed with the reasoning and analysis of the trial court, and adopted the trial court's discussion of this issue as its own.

Haverford Township Anti-Discrimination Law Passes First Procedural Hurdle

On Monday, January 10, the Board of Commissioners of Haverford Township, Delaware County, PA narrowly approved a first reading of a controversial anti-discrimination ordinance, which if passed, would prevent employment discrimination (as well as discrimination in housing, public accommodation and commercial property) within the Township based not only upon race, color, religion, sex, nationality and disabilities, but also upon sexual orientation. Employment discrimination on the basis of sexual orientation is currently not protected under either the Pennsylvania Human Relations Act or Title VII. The ordinance would also establish a local human relations commission of volunteer citizens, which would be authorized to mediate claims and the power to impose fines up to $10,000.00 and award attorneys fees.

Read the full story from the Delaware County Daily Times here: http://www.delcotimes.com/articles/2011/01/12/news/doc4d2d20d058351959102883.txt?viewmode=default

Ever Filed For Bankruptcy? Don't Put It On Your Resume.

On December 15, 2010, in the case of Rea v. Federated Investors, No.: 10-1440, the Third Circuit Court of Appeals held that the federal Bankruptcy Code does not prohibit a private employer from refusing to hire an applicant solely because that applicant had previously filed for bankruptcy.

The plaintiff in this case, Dean Rea, had filed for bankruptcy in 2002 and his debts were discharged in 2003. In 2009, Rea applied for employment with Federated Investors, a private company. After an interview, it initially appeared that Rea would be hired by Federated Investors. Rea was later informed, however, that Federated Investors had refused to hire him because he had previously been in bankruptcy.

Rea then filed suit, arguing that section 525(b) of the Bankruptcy Code (11 U.S.C. 525(b)) prohibited discrimination against an individual solely because he or she is or has been a debtor in bankruptcy. Specifically, section 525(b) directs, in pertinent part, that:

"No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankruptcy, solely because such debtor or bankrupt -- (1) is or has been a debtor under this title or a debtor or bankrupt under the Bankruptcy Act. . ."

The District Court dismissed Rea's case, holding that the language of Section 525(b), above, does not prohibit an employer from refusing to hire an applicant on the basis of a previous bankruptcy.

On appeal, the Third Circuit agreed, and affirmed the dismissal of Rea's case. Specifically, the Court looked at the language of Section 525(b) quoted above, which is directed to private employers, and compared it to the language set forth in Section 525(a), which is directed to governmental agencies. The Court noted that the texts of Sections 525(a) and 525(b) are nearly identical, but not completely. The Court noted that Section 525(a) provides that a governmental unit shall not "deny employment to, terminate the employment of, or discriminate with respect to employment against," a person that is or has been in bankruptcy, but that Section 525(b) lacks any such language concerning "denying employment to." The Third Circuit held that the omission of the phrase "deny employment to," by Congress in Section 525(b) was intentional, and effect must be given to this important difference. As such, the Court reasoned that by intentionally omitting the phrase "deny employment to," in Section 525(b), after having specifically included it in Section 525(a), Congress did not intend to prohibit a private employer from refusing to hire an applicant because of that applicant's previous or current bankruptcy.

You can view the Third Circuit's full opinion here: http://www.ca3.uscourts.gov/opinarch/101440p.pdf

Eastern District of PA: ADA Claim For Failure To Provide Disabled Employee With A Cell Phone May Be Sent To A Jury

In the case of Boandl v. Geithner, No.: 09-4799 (E.D. Pa. 11/2/2010), the U.S. District Court for the Eastern District of Pennsylvania held that a jury was permitted to hear the claims of Richard Boandl, a disabled former IRS Revenue Agent, in which he alleged that the IRS had failed to engage in the interactive process required by the Rehabilitation Act and the Americans with Disabilities Act (ADA), when his immediate supervisory summarily denied his verbal request to provide him with a cell phone to assist him in the performance of his investigative duties.

At a young age, Boandl had been infected with polio, and as a result, has been disabled for most of his life. He has a severe limp, cannot stand for more than a few minutes at a time, and requires the use of a cane to walk short distances and a wheelchair to travel distances of more than twenty yards. Boandl had been employed as a Revenue Agent with the IRS from 1983 until 2004.

In late 2003, Boandl spoke to his immediate supervisor and requested that the IRS issue him a cell phone as a reasonable accommodation for his disability. Boandl alleged that he needed a cell phone to assist in his investigative duties, which required traveling outside his office to locate tax non-filers and visit witnesses. Boandl told his supervisor that because of his disability, it was difficult for him to repeatedly have to get in and out of his car, walk and stand while in the process of trying to locate, and then use, a working pay phone while out of the office. Boandl alleged that his supervisor immediately denied his request. Boandl then emailed a copy of his cell phone request to his supervisor on or about December 11, 2003. On January 20, 2004, Boandl's supervisor provided him with a written memorandum officially denying his request for a cell phone on the basis that the IRS did not issue cell phones to any employees holding Boandl's position, and that the ability to be able to return phone calls while in the field was not an essential function of Boandl's position.

In denying the government's subsequent Motion for Summary Judgment on this issue, the Court found that Boandl had produced sufficient evidence that would allow a jury to conclude that the IRS had failed to engage in the interactive process required by the Rehabilitation Act and the ADA because Boandl's supervisor had summarily denied his oral request for an accommodation. Moreover, the Court noted that the IRS' stated reason for denying Boandl' request, i.e., that the need to return phone calls while in the field was not an essential function of his position, was not the sole reason for Boandl's cell phone request. Rather, Boandl had specifically alleged that he had investigative duties while out of the office, such as locating non-tax filers and locating witnesses, which required the use of a cell phone. The Court held that because the government had failed to present any evidence that these tasks were not essential functions of Boandl's job, it was not entitled to summary judgment on this claim. Therefore, a dispute existed over whether the tasks identified by Boandl were essential functions of his position, which was required to be resolved by a jury.

The lesson that employers and HR specialists need to take away from this case is that summarily denying requests for accommodation under the ADA or the Rehabilitation Act is never good practice. Rather, each request, even if it may facially appear to not require an accommodation, should be given its due consideration and analysis. A summary denial of any request for accommodation, especially one that is made verbally, can leave an employer exposed to a claim for failure to engage in the required interactive process.

Western District of PA Dismisses Title VII and ADA Claims for Insufficient Facts

In the case of Robuck v. Mine Safety Appliances Co., No.: 2:10-cv-00763 (W.D. Pa. 11/3/2010), the U.S. District Court for the Western District of Pennsylvania dismissed claims of retaliation under Title VII and the ADA due to the employee's failure to plead sufficient factual allegations. While the arguments behind Robuck's claims here may have been admittedly weak from a plaintiff's perspective, this case serves as an important reminder of the importance that needs to be paid by a plaintiff's attorney to fact-pleading in the aftermath of the now infamous Twombly and Iqbal decisions.

The employee, Dennis Robuck, claimed to suffer from hypertension that required him to avoid stress and to take long walks on a regular basis, which he often did on his lunch break. He also alleged to have a problem with a female co-worker, Ruth Protzman, who apparently also took walks during her lunch break, as well. Robuck alleged that he made every attempt to avoid Ms. Protzman, and even the employer admitted that up until February of 2007, it had made every effort to keep Robuck and Ms. Protzman separated. One of the ways in which it did this was to allow Ms. Protzman to take her lunch hour at 11:30 AM, while Robuck took his lunch hour at 12:00 PM.

In February of 2007, however, the employer changed Robuck's lunch hour to 11:30 AM. Robuck alleged that the employer failed to accommodate him by changing his lunch hour back to 12:00 PM, despite his continuing complaints. Robuck also alleged that he had made numerous complaints to his supervisor, stating that the employer had given priority to Ms. Protzman over Robuck when attempting to separate them.

On October 29, 2007, Robuck was terminated by his employer, and subsequently received a letter from the employer indicating that had been discharged for willfully disregarding workplace rules.

Robuck subsequently filed suit, alleging that the reason given by the employer for his termination was pretextual, and that he was actually terminated for walking on a road on which the employer believed Ms. Protzman might also have been walking on at the same time. Robuck insisted, however, that Ms. Protzman was not even walking on the road at that time and that she was not even at work on the date of his alleged offense. Robuck alleged retaliation on the basis of sex in violation of Title VII, and retaliation in violation of the ADA.

The employer filed a motion to dismiss, arguing that Robuck had failed to allege sufficient facts to sustain claims of retaliation under either Title VII or the ADA. The District Court agreed, and dismissed both claims. With respect to Robuck's claim that he was treated less favorably by his employer than Ms. Protzman, the Court held that the only real facts alleged by Robuck in his Amended Complaint related to his ongoing dispute with Ms. Protzman and the employer's attempt to keep them apart, which was thwarted by a change in lunch schedule. However, the Court found that "[Robuck's] allegations are little more than generalized complaints of unfairness which do not and cannot constitute protected activity." While Robuck alleged that the employer "always gave priority," to Ms. Protzman, he failed to set forth any facts to "support his conclusory allegation that he complained of sex discrimination to his supervisor or anyone else." Moreover, the Court recognized that "[Robuck's] Amended Complaint is similarly vague in that [the employer's] alleged favoritism towards Ms. Protzman could have been motivated by any number of factors which are not protected under Title VII."

With respect to Robuck's ADA retaliation claim, the Court noted that while "[Robuck] alleges that [the employer] has discriminated against him as a result of his previous complaints of discrimination based on [his] disability . . . [Robuck] . . . provides no indication that he ever mentioned his disability during his discussion with his supervisor . . . or anyone else. Therefore, [Robuck] did not explicitly or implicitly plead that his alleged disability was the reason for the unfairness in which he complains. Accordingly, such complaint does not constitute 'protected activity' to constitute a prima facie case of retaliation." Therefore, the Court dismissed Robuck's ADA claim as well.

Had more care been taken by Robuck's counsel in drafting the Amended Complaint in this case, so as to include more specific facts, circumstances and events, it is possible that the Court would not have dismissed it at a 12(b)(6) stage. At the very least, getting past the pleadings and into active discovery may have allowed Robuck to garner some leverage in which to settle the case. But, a sloppy and imprecise Amended Complaint here served no other purpose but to get Robuck's Title VII and ADA retaliation claims dismissed at the outset. It should also be noted that Robuck received no sympathy from the Court with respect to his request to be allowed to file a Second Amended Complaint to correct these deficiencies. As of the date of the Order dismissing these claims, the Court noted that this case had been in litigation for nearly three years. Given that length of time, the Court held that "[Robuck] and his counsel have had ample time and the necessary means to secure and plead facts to support his claims," and as such, allowing Robuck the opportunity to file a Second Amended Complaint would be, in the Court's own words, "futile."

The lesson is clear - pay close and careful attention to your factual pleadings. The more, the better.

Final EEOC Regulations Under GINA Published

Below is a link to the Final EEOC Regulations under GINA, which were published on 11/9/2010 and become effective January 1, 2011.

http://www.federalregister.gov/articles/2010/11/09/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008#p-3