Michael J. Davey, Esq. mdavey@eckellsparks.com 610.565.3700

Wednesday, May 23, 2012

"Too hot" for work?

Is this sexual harassment or sex discrimination at a New York lingerie store?  You be the judge.  Click below to view the video and drop me a comment to let me know what you think.

Wednesday, February 1, 2012

"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

Thursday, January 12, 2012

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