Forge Documents? Case Dismissed! - COTW #113

The latest Case of the Week is Amfosakyi v. Frito Lay from my home-circuit, the Third Circuit. The plaintiff claimed he was terminated based on his race and national origin. The employer claimed he was terminated for leaving work for 4 hours and lying about it.

Here's where it gets a little weird. The employee asserted that he left work for a medical emergency relating to his depressed son. He also claimed that he had previously notified the employer of his son's special needs via a written letter dated April 30, 2009 addressed to HR Rep Danielle Fritts. He even provided a copy of the letter in discovery.

There's just one problem . . . on April 30, 2009, Danielle's last name was Shultz - she later married and took the last name Fritts. D'oh! Computer forensics confirmed what was obvious given the last name gaffe: the document was created well after April 30, 2009. In fact, the file was created and written on August 1, 2010, after he had commenced his Title VII claim.

The District Court granted the employer's motion for summary judgment. But, the Court also granted the employer's motion for sanctions and dismissed the case on that basis (even though the issue was effectively moot because summary judgment was granted). On appeal, the Third Circuit affirmed both decisions. As to the sanction of dismissal for forging the document, the Court specifically noted: "[t]he District Court also, in the alternative, properly granted Frito Lay’s motion for the sanction of dismissal."

What was this guy thinking? "SMH" (shaking my head), as the kids say. Easy takeaway: don't forge documents. For future reference, the Third Circuit employs a six-factor test for determining whether dismissal is an appropriate sanction:

(1) the extent of the party’s personal responsibility;
(2) the prejudice to the adversary caused by the conduct at issue;
(3) a history of dilatoriness;
(4) whether the conduct of the party was willful or in bad faith;
(5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and
(6) the meritoriousness of the claim or defense.

FMLA Back Pay Includes Overtime

In Pagan-Colon v. Walgreens of San Patricio, 2012 WL 3793126, the First Circuit held as a matter of first impression that an award of back pay under the FMLA includes overtime. A jury entered judgment in favor of the plaintiff on his FMLA retaliation claim. On appeal the First Circuit held:

Although we have not previously addressed the issue, we see no reason why overtime pay should not be included in an award of backpay under the FMLA. The FMLA provides that an employee may recover “any wages, salary, employment benefits, or other compensation denied or lost ... by reason of the violation.” 29 U.S.C. § 2617(a)(1)(A)(i)(I). Overtime certainly falls into the category of “other compensation.”

The overtime was calculated based on the plaintiff's year-to-date average of 6.5 hours of overtime per week.

HT: My colleague and author of Defense of Medicine, Jon Stepanian, via email.

2012 Supreme Court Employment Law Preview on The Proactive Employer

Straight from the shameless self-promotion department: I will appear on The Proactive Employer podcast this Thursday, October 11, 2012 at 3:00 PM (EST). You can read a preview of the episode here: Supervisor Harassment, Affirmative Action, FLSA, and ERISA. We're going to sneak another "hot topic" in as well (perhaps agency action such as NLRB and EEOC initiatives). You can also read my previous blog entry on the subject: 2012 SCOTUS Employment Law Preview.

Is ALL CAPS a Threat? - COTW #112

Turf war! Salespeople are often assigned a specific region or territory that is "theirs." They own it. When another salesperson encroaches, tempers flare. That's the setup for the latest Case of the Week

The case is Aversa v. UCBR, and it's a Pennsylvania Commonwealth Court case reviewing the decision of the Unemployment Compensation Board of Review (UCBR). The UC claimant was a salesman who lost part of his region to a co-worker. The Claimant emailed the co-worker a spreadsheet with sales figures from the region, and the body of the email read:

Hey Jim, you set me up pretty good ... I WON'T FORGET IT.

Ohhhh, not just "I won't forget it" - but, "I WON"T FORGET IT" all caps style! The employer terminated the employee for making a "threat."

The UCBR sided with the employer, holding that the claimant was ineligible for UC because he was terminated for willful misconduct (i.e. threatening a co-worker). The employer fired the Claimant under a policy that prohibited "actions intended to threaten or intimidate fellow employees" (that's the Court's language, not clear if that's the exact language of the policy). So, what do you think about the email Lawffice Space readers? Threat or no threat?

The Court sided with the Claimant. The Court held that there was no threat of actual consequences, just an admonition that the Claimant would not forget what the co-worker had done. The all caps added emphasis, "but it did not transform a four-word declarative sentence into a threat of violence." The Court also provided some interesting analysis specific to emails. For example, "[a] message transmitted through cyberspace does not contain the same force or immediacy of an in-person exchange; it is absent of voice or hand gesture." And, "[n]otably, the type size used in the e-mail is much smaller than the type size used in this opinion."

So, when assessing workplace threats via email for UC purposes: (1) email is not as threatening as in-person confrontation; (2) font size matters (really?); and ALL CAPS may add some emphasis, but is not in itself threatening.

No, Seriously - EEOC Targeting Pregnancy Discrimination

Last month, the EEOC released a draft strategic plan highlighting some "emerging issues," including:

Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.

That should have been a sign that the EEOC was setting its sights on pregnancy discrimination.

If you had any doubts, cast them aside. The Huffington Post reports on four new EEOC lawsuits involving pregnancy discrimination, all filed within the last week, in Pregnancy Discrimination In The Workplace Target Of New EEOC Crackdown. There was also a fifth case but it settled.

So, what are these cases?

1. One employee was fired from her security officer job while she was pregnant. The employer told her they would bring her back if any positions opened up - they never called, but hired male employees instead.
2. Pursuant to a policy in its employee handbook, a wing joint allegedly laid off eight female employees for getting pregnant (pro tip: don't include mandatory discrimination in your handbooks).
3. A seafood restaurant laid off two pregnant waitresses allegedly because "their pregnancies caused them to be a liability to the company."
4. Finally, the EEOC filed suit against a juvenile detention center that allegedly maintains a policy that "require[s] employees to immediately notify the company once the employee learns she is pregnant, and requires her to produce a certification from her doctor that she is capable of continuing to work."

I want to emphasize that these are just the EEOC's allegations, and the employers have not yet been afforded due process - but that's not really the point. The point is that the EEOC is clearly making an effort to target pregnancy discrimination.

Still not convinced? How about this tweet from Chai Feldblum, who is actually a commissioner on the EEOC:

Yes -- we are serious about this! Pregnancy Discrimination Target Of EEOC huffingtonpost.com/2012/09/29/pre… via @huffingtonpost
— Chai Feldblum (@chaifeldblum) October 2, 2012

Now may be a good time for employers to crack open those employee handbooks to make sure their pregnancy policies are in order.

One final note, it's not just the EEOC that's hitting this issue - pending legislation would require employers to reasonably accommodate pregnancy. I blogged about the House bill back in May - Eric Meyer notes recent efforts in the Senate.

Image: EEOC logo used in commentary on EEOC. Not official use.

NLRB Issues Facebook Decision and Order

The NLRB issued its first decision involving a termination for a Facebook posting on September 28, but only made it public yesterday. You can read the decision and order here (.pdf). The NLRB was also kind enough to provide a summary of the case on its website here.

In the shortest, and oversimplified-est (that's a word, right?), terms possible:

• Car salesman making fun of a sales event with his co-workers because the food was so crappy it could impact their sales and commissions (i.e. terms and conditions of employment) . . . protected concerted activity.
• Car salesman alone making fun of some idiot who drove a Land Rover into a pond because it's funny when people drive cars into ponds . . . not protected activity. Employer cleared to terminate.
• "Courtesy" rule that prohibits "disrespectful" conduct and "language which injures the image or reputation of the Dealership" . . . unlawful as overly broad.

Any questions? I have been tracking this case for over a year - see here. It was also featured in one of the NLRB's Social Media memos (here).This decision affirms a prior ruling from an administrative law judge.

2012 SCOTUS Employment Law Preview!

It's here! The new SCOTUS season kicks off today! Let's see what kind of employment law goodies the Court has in store for us (in order of my personal preference):

Supervisor Liability
In Vance v. Ball State University, the Supreme Court will determine who counts as a supervisor in harassment cases. Question presented:

Whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

You can read my previous coverage here, or check out SCOTUSblog's coverage here.

FLSA "Pick Off" Case
Straight from my home circuit (that's the Third Circuit), the Supreme Court will address whether a defendant may "pick off" the sole plaintiff in a potential FLSA collective action, effectively killing the case. Question presented:

Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff ’s claims.

You can read my analysis of the Third Circuit opinion here, and the grant of cert. here, and SCOTUSblog's coverage here. I love it when the Supremes agree to hear an old Case of the Week!

ERISA
Another one from the Third Circuit, the Supreme Court will delve into the dry dry world of ERISA statutory interpretation in U.S. Airways, Inc. v. McCutchen. Question presented:

Whether the Third Circuit correctly held—in conflict with the Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits—that ERISA Section 502(a)(3) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan’s terms give it an absolute right to full reimbursement.

Read my previous coverage here, or SCOTUSblog's coverage here.

Miscellaneous
There are a few more cases that have some employment law-ish overtones, or focus on narrow issues. For example, Comcast v. Behrend (SCOTUSblog) will address the evidentiary burden for class certification at a district court (not an employment law class action in this case, but could still have some ramifications). The Court will address a jurisdictional issue for mixed cases (disputed termination and unlawful discrimination) involving federal employees in Kloeckner v. Solis (SCOTUSblog). Finally, the Court will analyze the use of race in university undergraduate admissions in Fisher v. University of Texas at Austin (SCOTUSblog) (not technically employment law, but you never know how issues involving race discrimination and the Equal Protection Clause may creep into subsequent employment law analysis).

I'll be on the lookout for more employment law cases as the Supreme Court grants petitions for certiorari. Also, note that the Supreme Court will now be issuing opinions and orders at 9:30 instead of 10:00.