Vol. 52, No. 10
Granting FMLA leave did not show an employee was regarded as disabled; ADEA award; more.
Worker Wins ADEA Claim
Kight v. Auto Zone Inc., 8th Cir., No.06-3509 (July 23, 2007). The 8th U.S. Circuit Court of Appeals upheld a jury verdict of more than $220,000 in favor of a 52-year-old employee who claimed that his termination was motivated by his age.
Roger Kight worked for Auto Zone for nearly eight years before being fired for "inappropriate comments" and "abusive behavior" in the workplace. Over the course of his employment, Kight's performance had been rated positively, including two evaluations of "exceeding expectations," the highest ranking possible, during the year immediately prior to his discharge. Kight had received only one written disciplinary warning, and that occurred in 1998.
In 2001, Kight began to report to Steve Sinor, a store manager. According to Kight, Sinor made numerous disparaging comments about older employees and about Kight in particular. Sinor referred to Kight as "old man" and "old fart," and told Kight that he was "too old to do his job." Kight kept a notebook of these comments, which Sinor found while Kight was on vacation in December 2002.
Subsequent to Sinor viewing the notebook, Kight was involved in an argument with a co-worker. Sinor arranged for an investigation into Kight's conduct by a human resources manager.
That manager interviewed two employees, both of whom related to him that Kight used profanity toward staff, made inappropriate comments and "engaged in abusive behavior." Based on that investigation, Kight's employment was terminated on Jan. 2, 2003.
Kight sued Auto Zone, alleging a violation of the Age Discrimination in Employment Act (ADEA). At a jury trial in April 2006, Kight presented evidence to show that Sinor had discriminated against him and had wrongfully initiated and influenced the investigation that led to his termination. At trial, the two individuals who had provided incriminating statements about Kight testified that Sinor had manipulated their answers during the investigation and had threatened to fire them if they did not cooperate.
During the trial, Auto Zone attempted to introduce corrective action reviews and testimony about them for four "similarly situated" but younger employees. According to the company, these co-workers were terminated for reasons similar to those on which Kight's firing was based. The trial court excluded that information, primarily because those employees were not called as witnesses at trial and the documentary evidence did not provide sufficient information about their misconduct and terminations. In addition, there was no evidence that those employees were fired by the same decision-maker who terminated Kight.
Affirming the judgment, the 8th Circuit noted that the trial court has wide discretion in admitting and excluding evidence. "When employees have been terminated by different decision-makers, it would be rare for them to be considered similarly situated because any difference in treatment may well be attributable to nondiscriminatory reasons," the appellate court stated.
By Maria Greco Danaher, an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.
FMLA Waiver Prohibition Reaffirmed
Taylor v. Progress Engergy, Inc. 4th Cir., No. 04-1525 (July 3, 2007).
Despite the arguments of the U.S. Department of Labor (DOL) to the contrary, the 4th U.S. Circuit Court of Appeals again decided that the department's regulations prohibit unsupervised waivers of rights under the Family and Medical Leave Act (FMLA).
In 2005, the 4th Circuit ruled that a DOL regulation prohibited the waiver of any FMLA right unless the waiver had the prior approval of the DOL or a court. The losing party filed a petition for rehearing, and the DOL filed a brief in support of the petition, which the court granted, vacating its previous decision.
On rehearing, the court noted that the FMLA makes it "unlawful for any employer to interfere with, restrain or deny the exercise of or the attempt to exercise, any right provided" under the law. The act does not expressly address whether rights may be waived. The DOL, as the agency charged with administering the act, issued a regulation that states that "employees cannot waive, nor may employers induce employees to waive, their rights" under the FMLA. When the DOL proposed this regulation, it received and rejected suggestions that the proposed regulation be modified to expressly permit waivers and releases in connection with settlement of claims.
Under well-settled law, an agency's interpretation of its own regulation is controlling unless plainly erroneous or inconsistent with the regulation. The 4th Circuit held that the DOL's position in the lawsuit was contrary to the plain language of the law.
The court found that the phrase "rights under FMLA" includes substantive rights (the right to take leave and be reinstated), proscriptive rights (the right not to be discriminated against) and remedial rights (the right to bring an action or claim for a violation).
Although employees may decide whether to bring claims to enforce their rights, employees also may change their minds, and the law does not allow a prospective or retrospective waiver of such remedial rights, according to the 4th Circuit.
The appeals court also noted that Congress had modeled the FMLA after the Fair Labor Standards Act (FLSA), and the U.S. Supreme Court has held that rights under the FLSA may not be waived. The court concluded that both laws are labor standards laws that set minimum standards. Private settlements under the FMLA could be cheaper than compliance, so the availability of settlements would encourage noncompliance and thus undermine the statute's purpose of guaranteeing employees a minimum amount of leave.
By Susan Schaecher, an attorney in the Denver firm of Stettner Miller PC, an affiliate of WorklawÂ® Network.
Approval of FMLA Leave Did Not Show ADA Disability
Berry v. T-Mobile USA Inc., 10th Cir., No. 05-1533 (June 27, 2007).
In a case of first impression, the 10th U.S. Circuit Court of Appeals decided that T-Mobile did not regard an employee suffering from multiple sclerosis (MS) as having a disability under the Americans with Disabilities Act (ADA) simply because it granted her Family and Medical Leave Act (FMLA) leave.
Barbara Berry had MS for nearly 12 years at the time of the lawsuit. She worked for T-Mobile as a manager for the company's customer care department. After a company reorganization, T-Mobile's new general manager called for improvements in customer care.
Berry's immediate supervisor subsequently reported to the general manager that Berry was not holding her teams accountable and refused to work with her peers as a team member. At approximately the same time, Berry approached the general manager, requesting rests at work due to extreme fatigue caused by MS.
The general manager advised Berry that she would have to apply for leave under the FMLA. Berry submitted an FMLA application, which T-Mobile granted. T-Mobile terminated her the following day, explaining that the decision to fire her was for poor performance and had been made by the time she requested FMLA leave.
Berry sued under the ADA. The district court ruled in T-Mobile's favor, and the 10th Circuit affirmed. Berry contended that she had a disability because she could not shower without resting, could not complete household chores and had to plan tasks well in advance to complete them on time. Noting that Berry indeed suffered from severe fatigue causing cognitive difficulties and resulting often in falls, the court nevertheless held that the medical records demonstrated that her activities were not substantially limited and her condition could be controlled adequately through preparation and medication. Thus, the court held that "while Berry may have to make some adjustments in her daily routine," she was not disabled at the time of her discharge.
The appeals court rejected Berry's novel argument that T-Mobile's grant of FMLA leave showed that it regarded her as having an ADA disability. The 10th Circuit explained that the leave provisions of the FMLA are wholly distinct from the ADA's definition of "disability."
By Scott R. Eldridge, an attorney with the firm of Miller, Canfield, Paddock and Stone PLC in Lansing, Mich.