6th Circuit Reverses Stance On Telecommuting In En Banc Decision

EEOC v. Ford Motor Co., ___ F.3d ___ (6th Cir. Apr. 10, 2015) (en banc)

  • This en banc decision follows the Sixth Circuit’s review and vacating of the divided decision in EEOC v. Ford Motor Co., 752 F.3d 634 (6th Cir. 2014).
  • Harris, a resale steel buyer, suffered from irritable bowel syndrome (IBS). She requested, as a reasonable accommodation, the ability to telecommute to work “up to four days per week.”
  • The Court determined that her job, which required teamwork, meetings with suppliers and stampers, and on-site “availability to participate in…face-to-face interactions,” did not lend itself to telecommuting. (“Ford’s practice and policy limited telecommuting for resale buyers. In practice, Ford’s buyers telecommuted, at most, on one set day per week. That aligned with its policy, which makes clear that those jobs that require ‘face-to-face contact’—and those individuals who were not ‘strong performers’ and who had poor time-management skills—were among those not ‘appropriate for telecommuting’).

AUTHOR’S NOTE: The Court in essence held that: “Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.” However, this rule does not “require blind deference to the employer’s stated judgment” with respect to what job functions are or are not essential. Judge Moore, who authored a lengthy dissent in which four other judges joined, called into question whether Ford’s claim that the teamwork functions of Harris’s job required her to be physically present in the office. Harris had declared that she “actually performed 95% of her job on the phone or through email, even when in the office.”

Ohio’s 8th Dist.: Public Policy Prevents Termination For Whistleblowing With Respect To Disclosure Of Nonpublic Personal Information Of Consumer Customers

Rebello v. Lender Processing Servs., Inc., 2015-Ohio-1380 (8th Dist.)

Rebello was terminated after complaining about LPS’s practice of “password sharing” among LPS employees when accessing nonpublic customer information of one of its largest clients, JPMorgan Chase Bank, N.A. She alleged that the source of the clear public policies prohibiting unauthorized disclosure of nonpublic confidential information is found in, inter alia, the Gramm-Leach-Bliley Act, 15 U.S.C. 6801, et seq. and its implementing regulations (“GLBA”), the Fair Credit Reporting Act, 15 U.S.C. 1681 et sea., the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq., and R.C. 1349.19. Following the trial court’s issuance of a directed verdict against her, Rebello appealed.

The Eighth District reversed, finding that a clear public policy exits based on the provisions of the GLBA, to prevent unauthorized access to and disclosure of nonpublic personal information of consumer customers. LPA repeatedly acknowledged in its own documents that its activities were subject to the GLBA and that it had an obligation under the GLBA to protect and maintain the security and confidentiality of Chase’s nonpublic customer information. Because the GLBA contains no remedy to protect employees like Rebello, without a common-law tort for wrongful discharge, the clear public policy would be compromised (“If employers were allowed to terminate employees for objecting to, refusing to participate in and threatening to disclose the unauthorized access and disclosure of nonpublic consumer information, such retaliatory practices could deter employees from reporting or taking other steps to protect nonpublic consumer information from unauthorized access and disclosure”).

US Supreme Court Rules In Pregnancy Accommodation Case

Young v. United Parcel Service, Inc., ___ U.S. ___, ___ S. Ct. ____ (Mar. 25, 2015)

  • Young, a part-time driver for UPS, became pregnant. Her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy, and not more than 10 pounds during the remainder of her pregnancy. However, UPS required drivers, like Young, to be able to lift parcels weighing up to 70 pounds (and up to 150 pounds with assistance). UPS therefore told Young she could not work while under a lifting restriction. Young consequently stayed home without pay during most of the time she was pregnant and eventually lost her employee medical coverage.
  • Young brought suit, alleging pregnancy discrimination under the Pregnancy Discrimination Act (“PDA”), insofar as UPS provided accommodations to other non-pregnant drivers who had similar inabilities to work (such as on-the-job injuries, ADA disabilities, or had lost DOT certification). Young also alleged that her co-workers had offered to help her with heavier packages.
  • The Fourth Circuit affirmed the trial court’s granting of summary judgment, and the Supreme Court vacated that decision, remanding the case back to the Fourth Circuit to determine “whether Young created a genuine issue of material fact as to whether UPS’ reasons for having treated Young less favorably than it treated other nonpregnant employees were pretextual” in light of the Supreme Court’s interpretation of the PDA.
  • The Court held that Young’s position, that pregnant workers receive “most-favored-nation” status (i.e., that they should be accommodated so long as the employer accommodates any other non-pregnant worker), was overbroad.
  • Rather, an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas “If the employer offers an apparently ‘legitimate, nondiscriminatory’ reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.  The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.”
    • The Supreme Court commented that: “We note that statutory changes made after the time of Young’s pregnancy may limit the future significance of our interpretation of the Act. In 2008, Congress expanded the definition of ‘disability’ under the ADA to make clear that ‘physical or mental impairment[s] that substantially limi[t]’ an individual’s ability to lift, stand, or bend are ADA-covered disabilities. ADA Amendments Act of 2008, 122 Stat. 3555, codified at 42 U. S. C. §§12102(1)–(2). As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. See 29 CFR pt. 1630, App., §1630.2(j)(1)(ix). We express no view on these statutory and regulatory changes.”
    • The dissenting opinions articulate that the majority opinion opens the door to allowing individuals with disparate treatment claims to offer evidence of a policy’s effect and justification to show pretext (which Justice Scalia refers to as the “conflation of disparate impact with disparate treatment.”)

6th Circuit: Employer May Be Equitably Estopped From Denying FMLA Coverage Where Its Policy Omits 50-Employee/75-Mile-Radius Threshold

Tilley v. Kalamazoo County Rd. Comm’n, ___ F.3d ___ (6th Cir. 2015)

  • FMLA Equitable Estoppel: The employer’s handbook explained that: “Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.”  The Road Commission’s failure to include any limitation as to an employee working within 75 miles of a site which the Road Commission employed at least 50 employees was an unambiguous and unqualified statement that these extra requirements – normally a part of FMLA coverage – were not required by the Road Commission for employees to be eligible for FMLA coverage.
  • Tilley’s affidavit, in which he alleged that he relied upon the Road Commission’s representations in assuming he had coverage, and that he assumed he would be able to get leave under the FMLA for his illness beginning on August 1, 2011, was found by the Sixth Circuit to be sufficient to show a disputed factual issue as to whether the Road Commission was equitably estopped from denying that Tilley was covered under the FMLA. (“Had I known that I was not entitled to FMLA, I would have had someone drive me to the Road Commission to complete the brief finishing touches to the #3 job classification memo despite my illness in order to abide by the deadline or make other arrangements to have the completed document delivered before the deadline. I would not have done anything to put my job in jeopardy.”)

6th Circuit: Meal Breaks for Casino Security Guards not Compensable Despite Requirement that they Monitor Radios and Respond to Emergencies

Ruffin v. MotorCity Casino, ___ F.3d ___ (6th Cir. 2015)

  • Under the FLSA, an employee’s meal period is compensable if the employee spends that time predominantly for her employer’s benefit. Here, MotorCity Casino security guards brought suit alleging that because they must remain on casino property during meal periods, monitor two-way radios, and respond to emergencies if called to do so, that they spend their meal time predominantly for the benefit of the casino (“Guards could not leave casino property, have food delivered to the casino, or receive visitors. The guards therefore spent meal periods in either a large cafeteria, where free food and drinks were available, or one of the smaller break rooms—all of which could be crowded and noisy. A smoking area was also available, and guards could walk along an outdoor path surrounding the casino.”)
  • The district court granted summary judgment to the casino, and the Sixth Circuit affirmed. “According to the parties’ stipulation, ‘a meal period may occasionally be interrupted due to an emergency call.’ Security guards who lost meal time responding to an emergency were entitled to have the time made up. Guards could file a grievance if MotorCity failed to provide make-up time, but there is no evidence that a guard ever filed such a grievance.”
  • Monitoring a radio, and being available to respond if called, is a de minimis activity, not a substantial job duty. It is generally a peripheral activity that an employee can perform while spending her meal breaks however she likes.

Ohio Supreme Court Issues Three Recent Employment-Related Decisions, Including Two Whistleblower Cases

Lee v. Cardington, ____ Ohio St.3d ____, 2014-Ohio-5458


Lee worked as a “crew chief” for the Village from 2000 to 2009.  His duties included supervising the operation of the Village’s wastewater treatment plant (“WWTP”).  During his employment, Lee discovered that Cardington Yutaka Technologies, Inc. (“CYT”), an automotive-parts manufacturer, was discharging hazardous chemicals (glycol) into the Village’s water supply.  Lee reported these issues to the EPA, who ruled out the WWTP as the source of the problem, and determined that CYT was responsible.  Lee was ultimately terminated by the Village, and brought whistleblower claims under R.C. 4113.52.  Lee alleged that the Village retaliated against him for reporting the problems with the WWTP, his opposition to some of the proposals and projects advanced by the Village, and his support for the work of the EPA.

Despite the fact that the court of appeals reversed summary judgment, finding genuine issues of material fact, the Ohio Supreme Court reversed.  Lee had failed to comply with R.C. 4113.52’s strict reporting requirements.  Specifically, he did not make any written report of criminal conduct by his employer.  Lee’s report about “equipment failures” did not qualify as a report that sufficiently identifies and describes crimes involving the Village.  “Although Lee may have identified ways to “prevent” the WWTP from committing a permit violation under R.C. 6111.04(C), he knew that the WWTP had not yet committed such a violation. In his deposition, Lee admitted that the WWTP had never lost its permit during his employment, and he repeatedly told the village council that the WWTP continued to meet its permit obligations.”

Pixley v. Pro-Pak Industries, Inc., ____ Ohio St.3d ____, 2014-Ohio-5460

(Employer Intentional Tort)

Pixley, a plant maintenance worker, suffered a severe leg injury when a co-worker, who was operating a “transfer car,” accidentally ran the car into Pixley, pinning his leg against a conveyor line.  The accident did not trigger the shut-off mechanism in the car’s safety bumper, and the operator had to manually stop the car after he realized it had struck Pixley.  After the accident, both Pro-Pak and OSHA tested the car, and determined that the safety mechanism was functioning properly.  Pixley brought suit, alleging that Pro-Pak had deliberately intended to injure him.  He relied on two expert witnesses, who opined that the proximity sensor for the safety bumper had been deliberately bypassed or disabled.  “They based their opinions on their review of the video clips, which showed the safety bumper dragging on the surface of the aisle and partially collapsing without stopping the transfer car.”

While the trial court had granted summary judgment to Pixley, the Sixth District court of appeals reversed, finding that a genuine issue of material fact existed regarding whether Pro-Pak had deliberately bypassed the safety bumper.

The Ohio Supreme Court reversed.  The failure of an equipment safety guard is not sufficient by itself to raise the rebuttable presumption that the employer intended to injure another, “rather, the deliberate removal referred to in R.C. 2745.01(C) may be described as a careful and thorough decision to get rid of or eliminate an equipment safety guard.” Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, 981 N.E.2d 795, at ¶ 29 (internal quotations omitted).  There was no evidence that Pro-Pak deliberately removed the safety bumper or otherwise caused it to fail.

Hulsmeyer v. Hospice of Southwest Ohio, Inc., ____ Ohio St.3d ____, 2014-Ohio-5511

(Whistleblower – Nursing Facility)

Syllabus:  “An employee or other person used to perform work or services who reports or indicates an intention to report suspected abuse or neglect of a long-term-care-facility or residential-care-facility resident is not required to report or indicate an intent to report the suspected abuse or neglect to the Ohio director of health in order to state a claim for retaliatory discharge under R.C. 3721.24.”

In April 2010, Hospice hired Hulsmeyer as a registered-nurse case manager. Eight months later, Hulsmeyer was promoted to team manager, where she oversaw the care of Hospice patients and monitored the work of other Hospice nurses and aides.  At an October 19, 2011 patient-care meeting, a Hospice nurse indicated that she had noticed bruising on a resident (Pat Cinquina) and that she suspected abuse or neglect by Brookdale’s staff. Rachel Brown, an aide, divulged that she had used her cell phone to take pictures of bruising on Cinquina’s body. Brown forwarded the pictures to Hulsmeyer’s phone. A Hospice nurse and staff doctor at the meeting advised Hulsmeyer that she was obligated to notify Brookdale and Cinquina’s family of the suspected abuse or neglect. Hulsmeyer immediately called Brookdale and reported the suspected abuse or neglect to Cindy Spaunagle, Brookdale’s director of nursing, who indicated that she would examine Cinquina and then contact Cinquina’s daughter after the examination. Hulsmeyer then informed Isha Abdullah, the chief clinical officer of Hospice, of the suspected abuse or neglect. And after she left Abdullah’s office, Hulsmeyer informed Cinquina’s daughter of the suspected abuse or neglect. Contrary to the assertion in Hulsmeyer’s complaint, Abdullah claimed in a deposition that she did not learn of the suspected abuse or neglect until she received a call from a Brookdale employee. Abdullah claimed that Hulsmeyer violated Hospice’s company policy by not first reporting the suspected abuse or neglect to Hospice management. On November 30, 2011, Hospice terminated Hulsmeyer because she: (1) permitted photos of Cinquina to be taken without receiving authorization from a person with power of attorney, (2) notified Brookdale and Cinquina’s daughter of the suspected abuse or neglect without first notifying Hospice, in violation of Hospice’s policy, and (3) improperly shared the photos at a patient-care conference to discuss Cinquina’s care, which was attended by staff from both Hospice and Brookdale and Cinquina’s family, before informing Hospice of the suspected abuse or neglect.

Hulsmeyer filed suit, alleging a statutory retaliatory-discharge claim under R.C. 3721.24, and a common-law wrongful-discharge claim.  The trial court granted a motion to dismiss Hulsmeyer’s claims, finding that claims under R.C. 3721.24 require an employee to report abuse or neglect to the Ohio director of health to receive protection.  The court of appeals reversed, and the Supreme Court affirmed.  Hospice argued that R.C. 3721.24 is ambiguous, and must be read in pari material with R.C. 3721.22 – which requires reporting to the Ohio director of health.  However, applying statutory construction guidelines, the Court found no ambiguity in R.C. 3721.24’s absence of a specific reporting requirement.

AUTHOR’S NOTE:  Justice French dissented, but wrote that she finds that “Hulsmeyer’s complaint stated a cognizable common-law claim for wrongful discharge in violation of public policy,” based upon the General Assembly’s clear public policy in favor of “special protection of nursing home-residents through its passage of the Ohio Nursing Home Patients’ Bill of Rights, R.C. 3721.10 et seq.”

Dental Assistants Who Complained About Workplace/Patient Safety Issues Allowed To Pursue Wrongful Discharge Claims

Blackburn v. Am. Dental Ctrs., 2014-Ohio-5329 (10th Dist.)

Blackburn and Esposito worked for ADC as dental hygienists/assistants at the Maple Canyon office in Columbus.  In June 2002, ADC hired Dr. Allen to work as a dentist at the Maple Canyon office.  Blackburn and Esposito alleged in their complaint that, after ADC hired Dr. Allen, they began investigating Dr. Allen’s background and discovered he had lost his dentistry license in Michigan, had been convicted of criminal offenses in Michigan, and under the terms of his sentence, was not supposed to leave Michigan. They also claimed to have witnessed Dr. Allen engage in substandard and dangerous patient treatment that resulted in permanent damage or loss of teeth. Much of this involved unnecessary dental procedures or deliberately botched work to generate further treatment and thus higher billings for appellees and Dr. Allen. They further claimed to have witnessed Dr. Allen at work intoxicated, hung over, smelling of alcohol, and falling asleep while examining patients. Blackburn and Esposito claimed that they informed their supervisors with ADC of these issues regarding Dr. Allen, but rather than act to protect patients from this conduct, ADC management and staff retaliated against appellants by, among other things, harassing appellants, warning them not to lodge further complaints, threatening them with legal action for defamation, reducing their wages, assigning them unfavorable work duties, and denying promotions.  Sometime between September and November 2002, Dr. Allen was terminated by ADC.  Esposito was terminated on November 7, 2002, and Blackburn refused to return to work in the Spring of 2013 until she “felt safe working there.” A lawsuit was filed alleging, inter alia, wrongful discharge based on public policy.

The Tenth District reversed summary judgment, finding that, based upon R.C. § 4101.11 (“Duty of employer to protect employees and frequenters”) and § 4101.12 (“Duty of employer to furnish safe place of employment”), “there exists a clear public policy…in Ohio favoring workplace safety for employees and frequenters,” and that this public policy is jeopardized by terminating individuals who complain about conduct such as was allegedly engaged in by Dr. Allen.