Another Facebook Fail: Posting Vacation Pics During FMLA Leave

By Kathleen Jennings (kjj@wimlaw.com)

When will employees learn that the things they post on social media almost always get back to their employer? An example of an employee who learned this lesson the hard way comes to us from the 11th Circuit Court of Appeals. In Jones v. Gulf Coast Health Care of Del., LLC, No. 16-11142 (11th Cir., 2017), Rodney Jones served as Activities Director for Accentia, a long-term-care nursing facility. He requested and received FMLA leave so that he could undergo rotator cuff surgery. Jones was granted another 30 days of non-FMLA medical leave in order to complete his physical therapy. While on the 30 days of additional leave, Jones twice visited the Busch Gardens theme park in Tampa Bay, Florida and went on a trip to St. Martin. Jones spent his time at Busch Gardens walking around and taking pictures of the park’s Christmas decorations. He sent these pictures to his staff via text message, hoping to give them ideas for decorating Accentia’s facilities. Jones also visited his family in St. Martin for three days. He posted photos from these trips on his Facebook page, including pictures of himself on the beach, posing by a boat wreck, and in the ocean. Let’s face it, this guy was having way too much fun on FMLA leave, and he seemed to be rubbing everyone’s face in it. This was not going to end well.

Jones eventually returned to work as planned, and he presented his supervisor, Daniels, with a fitness-for-duty certification confirming that Jones could immediately resume his job as Activities Director. Daniels responded by showing Jones the photos from Jones’s Facebook page, which depicted the trips that he had taken while on medical leave. Oops.

To make matters worse, when Jones asked Daniels how he had obtained the photos, Daniels responded that “you can thank your wonderful staff, they just ratted you out,” but also remarked that “maybe if you’re going to have a Facebook account, you shouldn’t have it on public.” Daniels then informed Jones that “corporate” believed, based on these Facebook posts, that Jones had been well enough to return to work at an earlier point. Jones was subsequently suspended so that Daniels could investigate his conduct during medical leave. Although Jones was given an opportunity to respond to these charges in a letter, he failed to do so. Several days later, Jones’s employment was terminated.

Jones filed suit, alleging that, in suspending and later terminating him, Accentia interfered with the exercise of his FMLA rights and retaliated against him for asserting those rights. The District Court granted summary judgment in favor of the employer on both claims. The 11th Circuit affirmed the decision to grant summary judgment on the interference claim, but reversed the decision on the retaliation claim, finding that there were disputed issues of fact because the employer offered inconsistent reasons for Jones’ discharge.

The employer prevailed on the FMLA interference claim because Jones likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave, because he failed to submit a fitness-for-duty certification by the end of his FMLA leave, and because the record was devoid of proof challenging Accentia’s contention that its fitness-for-duty certification policy was implemented in a uniform fashion. Thus, Jones lost the right to be reinstated after failing to comply with this policy.

On the retaliation claim, the 11th Circuit clarified the law of the Circuit by holding that temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs. In Jones’ case, he was terminated the day he returned from FMLA leave, so the temporal proximity between the end of FMLA leave and termination was as close as it could get. In addition, the Court found that Daniels’s alleged comment that “corporate was not going to like the fact that [Jones] was taking FMLA leave during the ‘survey window'” corroborated Jones’s claim that his FMLA leave and his termination were not “wholly unrelated.”

Accentia also offered inconsistent reasons for Jones’ discharge, which will almost always preclude summary judgment.

Pro tip: When terminating an employee, a decisionmaker should be able to identify the reasons for termination at the time of the decision, and communicate them to the employee. If the employee files a lawsuit, the employer needs to be consistent with its reasons for the termination, unless it discovers new, previously unknown evidence of misconduct.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Non-Union Facilities Can Keep Union Reps Out of OSHA Inspections

By Kathleen Jennings (kjj@wimlaw.com)

Non-union employers can breathe a sigh of relief this week — OSHA has changed its enforcement policy regarding the participation of union representatives in workplace inspections of non-union facilities. In a 2013 interpretation letter (known as the “Fairfax Memo”), OSHA addressed which people not associated with the employer or government can be selected by compliance officers to accompany them on inspections. OSHA took the position that it had a right to select union advocates to participate in workplace inspections, even in non-union facilities. Not surprisingly, employer groups were not happy with this interpretation, and the Fairfax Memo was challenged in Court by the by the National Federation of Independent Businesses. Last week, OSHA rescinded the Fairfax Memo and announced that the guidance would be removed from OSHA’s manual on how staff should conduct inspections.

This is one less headache for non-union employers dealing with OSHA inspections. If an employer is going to have anyone present at an OSHA inspection, it should be the company’s counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Can the Use of One Racial Epithet Be Enough to Create a Hostile Work Environment? Yes, It Can.

By Kathleen Jennings (kjj@wimlaw.com)


If employers did not already have enough incentives to train supervisors in the avoidance of workplace harassment claims, an additional incentive comes from a decision by the U.S. Court of Appeals for the Second Circuit. In Daniel v. T&M Prot. Res., LLC, 2d Cir., No. 15-560-cv, (unpublished 4/25/17), the Second Circuit held that a single incident or comment, if severe enough, can give rise to employer liability under Title VII of the 1964 Civil Rights Act. In that case, a building security supervisor referred to Otis Daniel as “you f****** n*****,” according to court records. That comment was severe enough, said the Second Circuit. This comment was one about 20 separate incidents of harassment alleged by Daniel during his 15 months with T&M.

One can imagine other epithets directed at people based on their gender, race, national origin, or other protected categories, that may be classified as “severe” enough to rise to the level of actionable harassment. Supervisors need to be trained regularly on the types of conduct—verbal and non-verbal—that could give rise to complaints of harassment. Even one ugly epithet has the potential to cost a company a lot of money, just in the costs and legal expenses of defending a lawsuit.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Is an Employer Required to Terminate an Employee Who Has Been Accused of Sexual Harassment? Not Necessarily.

By Kathleen Jennings (kjj@wimlaw.com)

By now, most everyone is aware of the termination of employment of a television personality who has been accused of sexual harassment. According to news reports, his former employer has reached settlements with five women who had complained about sexual harassment or other inappropriate behavior by him. The agreements totaled about $13 million. The termination followed an investigation by an outside firm into additional allegations of harassment.

This same company also saw the dismissal of its CEO due to sexual harassment allegations.

So does this mean that a company should always terminate an employee who is accused of sexual harassment? It depends on the circumstances.

When an employer becomes aware of a complaint of harassment, it has a duty to investigate. If the investigation reveals that the complaint has merit, the company should take prompt, effective remedial action. The goal of any remedial action is to make sure that the harasser does not commit further harassment in the workplace. The most effective way of achieving this goal is to terminate the harasser. Whether the employer uses this ultimate punishment should depend on some of the following factors:

  • How serious was the harassment? As a general rule, incidents of unwanted touching of another, especially private parts, need to be dealt with most severely. If the harassment was verbal, there is a difference between one or two off-color jokes and profane, obscene or distasteful comments directed at another employee or his/her anatomy.
  • What is the harasser’s employment history? Is this a long-term employee who has never been in trouble? Or a fairly new employee?
  • Has this employee been accused of harassment before? If there is already one verified complaint of harassment against the employee, then any future verified complaints mean that he/she has not gotten the employer’s message that harassment in the workplace is unacceptable, and termination may be the most logical option.
  • What is the harasser’s response to the accusations? Is he/she defensive? or remorseful? If he/she refuses to admit that he/she did anything wrong, even when there is solid evidence to the contrary, there is a risk that the behavior may occur again.
  • Is there another punishment, such as demotion, suspension without pay, disqualification from bonuses or profit-sharing, or the like, that will get the harasser’s attention enough that the behavior will not happen again?

If an employer decides to give an employee one more chance, any punishment should be supplemented with harassment prevention training. That training may be extended to others in the same office, department, or facility if the employer determines that there is a systemic problem. In addition, if possible, the harasser and the recipient of the harassment should be physically separated.

Finally, regardless of what action the company takes against the harasser, everyone must be reminded that the company will not tolerate any retaliation against any employee who makes a good faith complaint of harassment.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Suspension Without Pay for Hitting Supervisor With A Vehicle Is Not Retaliation. No Kidding.

By Kathleen Jennings (kjj@wimlaw.com)

Some employees will litigate any employment decision they don’t like, even if there appears to be little or no basis for a claim. A recent example comes to us in a decision from the U.S. Court of Appeals for the 5th Circuit, Cabral v. Brennan, (5th Cir., No. 16-50661, 4/10/17). In this case, Mr. Cabral, a postal worker, was suspended for two days without pay after he hit one of his supervisors with a postal vehicle and was unable to produce a valid driver’s license or occupational license after the incident. Cabral, who is a Mexican-American over the age of 40, alleged that the suspension was actually in retaliation for his complaints about race, national origin and age discrimination.

That’s right–he hit a supervisor with a vehicle. And was suspended. Did Mr. Cabral really think he would not be disciplined for that?

The 5th Circuit ruled that the employer was entitled to summary judgment, reversing the district court below. The basis for the 5th Circuit’s decision was that the two-day suspension without pay was not a “materially adverse” action that would support a claim for retaliation under Title VII. A materially adverse action is one that would dissuade a reasonable employee from making or supporting discrimination charges. The 5th Circuit noted that whether a suspension is considered a “materially adverse” action will depend on the specific facts of each case. Mr. Cabral was unable to present any evidence other than his own stated conclusions that he experienced emotional or psychological harm because of the suspension, and therefore, could not, as a matter of law, show that the suspension was a “materially adverse” action.

The Takeaway: Some employees think that if they make a complaint about discrimination, they are suddenly made of Teflon and protected by the anti-retaliation provision of Title VII from any and all discipline. That is not the case. However, employers do need to exercise extra care in disciplining employees who have engaged in protected activity such as complaining about discrimination in the workplace. As we have noted in a previous blog post, retaliation is the most frequent claim in EEOC Charges. This court decision gives attorneys another tool for successfully fighting retaliation actions.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Does Title VII cover discrimination based on sexual orientation? The Seventh Circuit says yes, moving the issue one step closer to the U.S. Supreme Court.

By Kathleen Jennings (kjj@wimlaw.com)

This week, the full U.S. Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) ruled that Title VII’s ban on sex discrimination precludes employers from discriminating against lesbian and gay workers based on their sexual orientation. (Hively v. Ivy Tech Community, Coll. of Ind., 7th Cir., No. 15-1720, en banc decision, 4/4/17). With the 8-3 ruling, the Seventh Circuit becomes the only federal appeals court to hold Title VII covers sexual orientation bias.

Writing for the Seventh Circuit, Chief Judge Diane P. Wood said the court’s ruling “must be understood against the backdrop” of Supreme Court decisions addressing sexual orientation more broadly, as well as its employment discrimination cases. Those rulings, including the 2015 decision recognizing a constitutional right to same-sex marriage, reflect societal changes about the meaning of sex that can’t be ignored, the Court said. To that end, the Court stated that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”

Three-judge panels in the Eleventh and Second Circuits both recently held Title VII does not prohibit sexual orientation bias. The Seventh Circuit case holding otherwise creates a split in the Circuits, which makes it more likely that the U.S. Supreme Court will be called upon to resolve the conflict. However, the employer in the Seventh Circuit Hively case has said that it will not appeal that decision, so that decision will not be the one that the Supreme Court considers.

In the Eleventh Circuit case, which we discussed in a previous post, the plaintiff, Tameka Evans, has requested reconsideration by the entire Eleventh Circuit. If the entire Eleventh Circuit decides to reconsider the decision of the 3-judge panel, it is likely that Ms. Evans’ attorneys will use the Seventh Circuit opinion in the Hively case to try to persuade the Eleventh Circuit to rule in their favor. It is interesting to note that the Seventh Circuit utilized the gender non-conformity theory that Judge Rosenbaum also noted in her dissent in the Evans case. Under that theory, discrimination based on a person’s failure to conform to traditional gender stereotypes is a form of sex discrimination.

We will continue to monitor the developments in this area.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

And They Call It Puppy Love


 

By Kathleen Jennings kjj@wimlaw.com

What do you do if an employee asks to bring an “emotional support dog” to work?

Well, before you growl in response—be aware that allowing an employee to have a trained service dog or trained “emotional support dog” present at work may be a reasonable accommodation under the Americans with Disabilities Act (ADA). However, before making a decision as to whether it is a reasonable accommodation, the employer should go through the process of determining whether the employee is disabled (as defined by the ADA, as amended), whether she needs an accommodation to perform the essential functions of her job, and if so, whether the allowance of a trained service dog is a reasonable accommodation, will it create an undue hardship for the employer, or are there other reasonable accommodations available.

Service animal vs. emotional support dog—for public accommodations

Under Title III of the Americans With Disabilities Act, which applies to public accommodations, the regulations make a distinction between “service animals” and “emotional support” animals. The Americans With Disabilities Act defines “service animal” as follows:

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

28 C.F.R. §36.104 (emphasis added). Thus, under this definition, emotional support animals, comfort animals, and therapy dogs are not “service animals” under Title III of the ADA.

The employment context

However, no such regulation exists under Title I of the ADA, which applies to employment. Furthermore, the EEOC has no specific regulation or guidance pertaining to service dogs or emotional support dogs in the workplace. This is a newly evolving area of disabilities law.

In fact, just this month, the EEOC filed a lawsuit in Florida on behalf of a truck driver trainee alleging that he was illegally denied use of an emotional support dog as an accommodation for his PTSD and mood disorder. (EEOC v. CRST Int’l, M.D. Fla., No. 3:17-cv-00241, complaint filed 3/2/17). Specifically, the EEOC alleges that freight company CRST International Inc. and a subsidiary violated federal disabilities discrimination law when they withdrew their job offer to Leon Laferriere because he asked if he could drive with his service animal. The EEOC further alleged that the companies also failed to discuss other potential job accommodations with Laferriere and instead dismissed him from their new driver orientation program in retaliation for his requesting help with post-traumatic stress disorder syndrome and mood disorder. This lawsuit is in the very early stages, so it is too soon to tell what kind of legal precedent it may set. However, it does show that this is an issue on the EEOC’s radar for enforcement.

The takeaway: There is a big difference between allowing a truck driver to have a dog with him in a truck, and allowing an office employee to bring a dog to work in an office environment. In addition to evaluating the situation under the ADA, there are also logistical concerns, such as when and where the dog can relieve itself, where the dog can stay, and how to handle other employees who may have dog allergies, among other things. If an employee makes a legitimate request for a service animal or “emotional support” dog in the workplace, we recommend that an employer consult with experienced employment law counsel to determine how to respond to the request.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.