Court Report

Jul 22, 2014

August CoverWorker Prevails on FMLA Retaliation Claim

Jackson v. City of Hot Springs, 8th Cir., No. 13-1772.

A welder who, after exhausting his Family and Medical Leave Act (FMLA) leave entitlement, unsuccessfully reapplied for a posted opening of his former job, properly obtained a jury verdict for $56,000 as lost compensation and deserved an additional $56,000 as liquidated damages for the employer’s violation, according to the 8th U.S. Circuit Court of Appeals.

After being employed for nine years by the city of Hot Springs, Ark., and being promoted midway through his employment, Wayne Jackson was hospitalized and underwent surgery due to complications with his gallbladder and pancreas. Jackson first used his accrued paid sick leave, then his 12-week FMLA entitlement, and finally an additional 30 days of personal leave. When he still was unable to return to work, the city terminated his employment.

After Jackson’s doctor released him to work, he reapplied for his former job, which had been publicly posted. His former supervisor and a co-worker rated him the highest of the three interviewees for the position and recommended that he be rehired. In response to the request for approval of Jackson’s rehire, the next-level supervisor stated: “I think it is a mistake; however, I will not micromanage. I will simply hold them accountable for the decision.” Nevertheless, that higher-level supervisor later concluded that the interviews were not properly conducted and required another round of interviews. Jackson was not chosen for an interview or rehired after the second round.

Although Jackson’s wrongful discharge and disability discrimination claims were dismissed, his FMLA retaliation claim was submitted to the jury. He obtained a verdict awarding him $56,000 for lost compensation, but the jury found that the city had acted in good faith. Accordingly, the district court denied Jackson’s request for liquidated damages based on that good faith finding. Both parties appealed.

Regarding the city’s appeal, the 8th Circuit concluded that Jackson presented sufficient evidence for the jury to conclude that he was able to perform the essential functions of the job at the time of applying for rehire, based on his doctor’s release and the immediate supervisor’s determinations that he could operate the machinery and was the most qualified applicant. Even though Jackson testified that he could not perform some of the lifting requirements, the city’s safety coordinator had told workers they should get help when performing heavy lifting for safety reasons. Finally, Jackson’s use of prescription painkillers did not preclude him from safely operating the machinery because the medication warned only that he should not operate machinery “until you know how your body reacts to the medicine,” and Jackson testified that he had built up tolerance to the painkillers.

Professional Pointer
Changing the reasons for an employment decision can provide the evidence needed to show a causal connection between the employer’s action and the employee’s protected conduct in a retaliation action.

The 8th Circuit also quickly disposed of the city’s argument that Jackson failed to present sufficient evidence of causation to support the retaliation claim. The higher-level supervisor’s comment that rehiring him “would be a mistake” and decision that the interview process needed to be redone—even after the immediate supervisor and co-worker recommended him for rehire—supplied sufficient evidence to support an inference of a retaliatory motive. Moreover, the higher-level supervisor’s reasoning changed from the time Jackson was not rehired during the first round of interviews (that the interview procedures were not followed) versus Jackson’s rejection during the second round (that Jackson had inferior diagnostic and computer skills as compared to the other candidates). Therefore, the 8th Circuit held that this change in reasoning discredited the city’s reasons for not rehiring Jackson.

Jackson’s cross-appeal argued that the district court abused its discretion in denying liquidated damages under the FMLA. The appellate court agreed, noting that the FMLA states employers “shall be liable” for liquidated damages upon a finding of a statutory violation. Even though the jury determined the city acted in good faith in not rehiring Jackson, the 8th Circuit explained that this determination was merely advisory and should have been overruled by the district court in light of the strong presumption in favor of liquidated damages.

By James M. Paul, an attorney in the St. Louis office of Ogletree Deakins, an international labor and employment law firm representing management.

Employer May Be Liable for HR Manager’s Conduct

Velazquez-Perez v. Developers Diversified Realty Corp., 1st Cir., No. 12-2226.

A shopping center management company may be liable to a former regional general manager for firing him for alleged performance deficiencies pointed out by an HR manager whose sexual advances the manager repeatedly resisted, the 1st U.S. Circuit Court of Appeals ruled.

The employer fired the employee based largely on negative information provided by the HR manager. In response, the employee sued the employer in federal district court for sex discrimination in violation of Title VII of the 1964 Civil Rights.

Professional Pointer
This case allows a quid pro quo sexual harassment action to be based on the conduct of a co-worker rather than a supervisor.

There was no evidence that the managers who made the discharge​ decision acted with any type of unlawful motive. However, there was evidence showing that, prior to the employee’s discharge: 1) the HR representative expressed to the employee her romantic interest in him; 2) after a brief flirtatious period, the employee rebuffed that romantic interest; 3) the HR representative thereafter conveyed the threat that she would undercut the employee at work and ultimately get him fired if he would not engage in a romantic and sexual relationship with her; and 4) the HR representative did convey negative information and advice about the employee to the managers who ultimately decided to discharge him.

The federal district court granted summary judgment to the employer, but the appellate court reversed that decision and remanded the case for trial. The court found that, even though the HR representative was not the employee’s supervisor, the employee could prevail on a quid pro quo theory if his termination resulted from rejecting the sexual advances of the HR representative.

The court also ruled that the employer could be liable under Title VII for negligently allowing the HR manager’s discriminatory acts to cause the employee’s wrongful discharge.

By David C. Henderson, an attorney in the Boston office of Nutter McClennen & Fish.

Hostile Environment May Come from Nonemployee

Freeman v. Dal-Tile Corp., 4th Cir., No. 13-1481.

An employer may be liable for a hostile work environment where one of its supervisors has knowledge or should have knowledge of ongoing harassment by a nonemployee, but fails to act promptly to end the harassment, according to the 4th U.S. Circuit Court of Appeals.

Lori Freeman, a black woman, worked as a customer service representative for Dal-Tile Corp. Freeman interacted on an almost daily basis with an independent salesman who frequently made lewd and racially inappropriate comments both to and about Freeman.

Freeman complained to her female supervisor about the comments, but the supervisor simply scoffed and shook her head or rolled her eyes. Approximately three years after the alleged, ongoing harassment began, Freeman reported the salesman’s behavior to her employer’s human resources department. The human resources representative initially promised Freeman that the salesman would be permanently banned from the facility; however, the ban was subsequently lifted. Instead, the employer prohibited the salesman from speaking with Freeman.

Freeman eventually filed a lawsuit claiming hostile environment, but the district court granted the employer’s motion for summary judgment. On appeal, the 4th Circuit disagreed and remanded the case to the district court for more proceedings.

Professional Pointer
Employers must train supervisors and managers on what to do if they become aware of inappropriate conduct in the workplace—even if it is not another employee who is engaging in the offensive conduct.

The appeals court held that the salesman’s conduct could form the basis for sex- and/or race-based harassment that was both subjectively and objectively severe or pervasive. The court further found the employer, through its supervisory agent, had actual, or at least constructive, knowledge of the conduct Freeman found offensive. Despite the supervisor’s knowledge of the ongoing behavior, the appeals court noted that the employer did not take any action to stop the harassment until Freeman eventually went to HR.

By R. Todd Creer, an attorney with Kamer Zucker Abbott, the Worklaw® Network member firm in Las Vegas.​


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