Category: ADA & ADAA

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ADA & ADAA Age Discrimination (ADEA) Bankruptcy Discovery FMLA Overtime/Wage & Hour Retaliation Sex Discrimination Sexual Harassment Title VII Uncategorized Whistleblower Law

17th Annual TBA Labor and Employment Forum

Here’s a great CLE opportunity that will cover a ton of labor and employment topics.  The 17th Annual TBA Labor and Employment Forum is April 12 in Nashville.  I will be speaking about current developments in wage and hour law. 

This is my second year to speak at this event, and it’s an honor to be included among such great employment lawyers from across the state.  This year, the line-up of speakers includes  Judge Clifford Shirley, John Bode, Bob Boston, Stan Graham, and Mark Travis.  Register at http://tinyurl.com/azdyxcl

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ADA & ADAA Age Discrimination (ADEA) Bankruptcy Sex Discrimination Title VII

The Plaintiff’s Bankruptcy Schedule – A Defendant’s Windfall?

Many victims of discrimination must file bankruptcy if they cannot obtain work. 

Those bankruptcy filings can be dangerous.  The schedule of assets and liabilities presumes the new debtor will disclose a wrongful termination lawsuit as an “asset.”  Often, that does not occur.

The failure to disclose a potential lawsuit can occur for any number of reasons:  (1) the debtor not understanding that a contingent legal claim, even if not yet pursued in court, is an “asset”; (2) believing a discrimination lawsuit must be filed in court before it becomes an asset for a bankruptcy; (3) relying upon a hurried bankruptcy paralegal to fill out the forms; and (4) not even knowing a discrimination case exists at the time of the bankruptcy filing.

Why does the schedule matter so much?  Because, legally, filing bankruptcy creates an estate.  The assets of the estate, including any wrongful termination claims, no longer belong to the debtor.  They are property of the estate, and they include “all legal or equitable interests of the debtor in property as of the commencement of the case.”  11 U.S.C. § 541(a)(1).   

See the issue yet?  Yep, it’s one of standing to sue.  Filing a wrongful termination suit where the lawsuit was not first disclosed in bankruptcy can result in a legal challenge by the former employer for lack of standing to sue. 

So, what should experienced Plaintiff’s counsel do if he/she learns that a victim of employment discrimination has filed bankruptcy?

  • If the bankruptcy is still ongoing, check the bankruptcy schedules to see whether the potential lawsuit has been disclosed.  If not, amend the schedule to include the lawsuit and surrounding information.  Then, with the cooperation of the Bankruptcy Trustee, file the discrimination lawsuit.
  • If the bankruptcy already has been discharged, check the bankruptcy schedules to see whether the discrimination claim was disclosed in the first place. 
    • If it was, then the bankruptcy Trustee has chosen to “abandon” the discrimination claim and the individual regains standing to file the lawsuit. 11 U.S.C. §554(c); Auday v. Wet Seal Retail, Inc., 2012 U.S. App. LEXIS 22180 (6th Cir. Tenn. 2012).  
    • If the discrimination claim was not disclosed in bankruptcy, consider reopening the bankruptcy estate and making the claim known.  The Trustee may choose to abandon it, or may choose to pursue it.  If the Trustee makes known its intention to abandon, the plaintiff may fairly argue she has standing.  If the Trustee pursues the claim, the Trustee will likely cooperate with the filing of a discrimination suit in order to recover proceeds for creditors.  Technically, the Trustee becomes the “Real Party in Interest” in this situation, but the lawsuit is preserved and any recovery beyond the bankruptcy debt will revert to the debtor.

In summary, it pays to closely evaluate the bankruptcy schedule before filing a discrimination lawsuit.  Do not assume the bankruptcy attorney listed a discrimination lawsuit, or that the client’s ignorance of bankruptcy schedules will be a safeguard.  Instead, be proactive, fixing the schedule where necessary, even if the bankruptcy has already been discharged.

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ADA & ADAA Age Discrimination (ADEA) Retaliation Sex Discrimination Title VII Whistleblower Law

What if an employer says he didn’t know about about the protected activity?

When I was a child, I loved the show “Hogan’s Heroes.”  For those of you who were too young to recall the show, it was about some American POWs in a prison camp in Germany.  Remember, it was a comedy.  These POWs were no more imprisoned than you or I.  They had radios, tunnels, and ran missions from their “prison camp.”

How did they do this?  They had a buffoon of a prison guard named Sergeant Schultz. He surely knew of the comedy that was going on behind the walls of the prison.  Whenever he was asked, however, he would respond with one of the classic lines in TV history:  “I hear nothing; I see nothing; I know nothing.”

Employers have a habit of taking on the Sergeant Schultz character when they find themselves defending an employment discrimination claim.  “I didn’t know she had a workers compensation claim when I fired her.”  “I didn’t know that he had just reported his supervisor for race discrimination.”  “I didn’t know she had complained of sexual harassment.” In other words, they claim that the decision maker did not know about the “protected activity.”  They take the witness stand and effectively say, “I hear nothing; I see nothing; I know nothing.”

This defense is problematic  because it requires employees to prove  when a decision maker learned of protected activity, even though the employer has every incentive to hide this crucial information.  Fortunately, some courts have realized that if a decision maker will lie about one thing, they will lie about everything.

It’s well-settled law that an employee can prove that the employer acted with an illegal motive if she can show that the “reason” an employer gives for the termination is a big fat lie.  In other words, if an employer claims that he fired a pregnant lady because was late to work, but the employee can prove that she arrived on time, then the jury can “infer” that the real reason was her pregnancy.  This is called a “pretext.”  Again, that’s a fancy legal word for “big fat lie.”

Employees and their attorneys should use pretext evidence where an employer is claiming he does not know of the protected activity.  “Pretext evidence” can also be used to estabish an employer’s knowledge of protected activity.  If an employee can show that an employer is lying about material matters in case, the jury should be able to infer that he knows about the protected activity and is trying to cover up the discrimination.

 Wise judges have reasoned that if the employee can show that the reason given by the employer for her termination is not true, then the jury can conclude both that the true motivation was illegal andthat the employer knew about the protected activity. See e.g. Cunningham v. Black & Decker, No. 05-1297 T-An.  (W.D. Tenn. 2008); (holding that the jury could conclude that an alleged decision maker knew of the protected activity where his credibility has been impeached on other matters);  see also Allen v. Chicago Transit, 317 F.3d 699‑700 (7th Cir. 2003)(When a witness is impeached on material matters,  his credibility becomes an issue for the jury.  It is well-settled that summary judgment is not appropriate on employment discrimination cases in light of such evidence);  O’Malley, Grenig & Lee, Federal Jury Practice and Instructions § 15.06 (5th ed.2000) (model text of “falsus in uno, falsus in omnibus” as a jury instruction); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2726, at 446 (3d ed. 1998) (“Clearly, if the credibility of the movant’s witnesses is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied and the case allowed to proceed to trial”).

 The moral of the story?  Be sure your lies will find you out.

 

 

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ADA & ADAA Age Discrimination (ADEA) Retaliation Whistleblower Law

Allegations of Discrimination and Retaliation at the University of Tennessee: Employment Law Meets College Athletics

There’s a lot more action in the courtroom than on the football field at the University of Tennessee these days. This blog is the first in a series of periodic posts that will explore allegations of illegal employment practices in the U.T. Athletics Department.

Nearly two decades ago, I was an undergraduate at U.T.  As part of a course project, I was on a team of students who did an organizational evaluation of the Women’s Athletics Department.  UT was one of the few universities that separated its men’s’ and women’s’ athletics departments.  I had the opportunity to meet former women’s athletics director Joan Cronan, who was extremely gracious to me and my fellow students.  I also met Debbie Jennings, who struck me as a no-nonsense but deeply committed sports information director. 

At the time, President Joe Johnson was admired and respected by students, faculty, and alumni.  Joan Cronan presided over arguably the most successful women’s athletic program in the country.  And Pat Summitt was . . . well, she was Pat Summitt.

Much has now changed.  The women’s athletic program has merged with the men’s program.  Dave Hart, a new athletic director, is steering the ship.  Pat Summitt has retired under increasingly unclear circumstances.  And Debbie Jennings was forced to resign and has filed a discrimination and retaliation case against the university.

For an overview of the circumstances, you can read this link: http://www.govolsxtra.com/news/2012/oct/03/debby-jennings-suit-amended-to-include-pat/

The strange case of Jennings, Hart, and Pat Summitt is the stuff of law school examinations.  While playing out dramatically in the newspapers, it also reaches across the pantheon of contemporary employment laws.

How strong are Debbie Jennings age and sex discrimination claims?

Can she use statistical evidence, such as the change in the gender make up of employees, as evidence of illegal discrimination? 

Was Pat Summitt protected from termination under the Americans with Disabilities Act?

Was Debbie Jennings protected from termination if she stood up for Summitt?

Can the athletics director’s past actions be used in against him in this case?

These questions involve the intersection of:

–           the Age Discrimination in Employment Act,

–           the Americans with Disabilities Act,

–          the use of statistical evidence in discrimination cases,

–          whistleblower laws,

–          use of “prior inconsistent statements” under evidence law, and

–          use of “other act” evidence under Fed.R.Evid. 404(b).

Law nerds who care nothing about sports are giddy about this case.

Stay tuned.  More posts to follow.

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ADA & ADAA

The Employer’s Duty to Reconsider Under the ADAAA

Many years ago, shortly after the ADA was  passed, a Firing Squad lawyer was trying an ADA case of failure to reasonably accommodate.  The employee claimed the employer was not listening to his requested accommodation, and the employer claimed it could not understand what the employee was saying.

Nowadays, everyone knows this is the “interactive process,” that it “requires a great deal of communication between the employee and employer,” and the jury’s role is to determine who is most responsible for the communication breakdown. Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998).  But back then, it was unclear whether liability could even attach over miscommunications.  So, after the plaintiff and the human resources manager had both testified, the judge told the lawyer at a bench conference: “I damn well don’t know who should say what under this law, who did say what, or who didn’t understand whom, but you two best get out in the hall and just settle it.”

We’ve come a long way since then.  In fact, if the employer fires an employee and then learns of additional information about a reasonable accommodation, many Circuits are requiring the employer to “reconsider” the termination based upon the new information. Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998)(IBM should have reinstated Criado after learning of requests for leave); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr, 155 F.3d 775, 784 (6th Cir. 1998)(employer should have “reconsidered its adverse employment action when [the plaintiff] . . . reapplied for a position shortly after she was terminated”); Bultemeyer v. Fort Wayne Comm. Sch., 100 F.3d 1281, 1286 (7th Cir. 1996)(employer should have “reconsidered the decision to terminate employment” after learning of need for additional leave time).

For questions about disability terminations, failure to reasonably accommodate, or failure to reconsider a termination, call the lawyers at Gilbert Russell McWherter toll free 888.354.3476.

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ADA & ADAA

“Failed Drug Tests” – Employer Defense or Employee Right of Action Under ADAAA?

The Firing Squad gets lots of questions about terminations for a “failed drug test.” This area is very tricky, for both employers and employees. How so? Because a “failed drug test” can be the result of a number of very different things. The employee may have failed because he is a casual illegal drug user. Or, the employee may be addicted to illegal drugs. On the other hand, failing a drug test can also be caused by the employee taking an entirely valid prescription medication for an impairment—the so-called “false positive.”

The Americans with Disabilities Act, with amendments (ADAAA), seeks to walk this fine line. On the one hand, it does not protect current casual drug use, or current illegal drug use. But on the other hand, it does protect persons who take a prescription medication for an impairment which causes a false positive. 42 U.S.C. §12114(b).

So, if an employee believes his “failed drug test” is due to taking a prescription medication for an impairment, what should he/she do? Our advice to the employee would be: Tell the employer that the “failed drug test” was caused by prescription medication. If possible, back it up with a note from the doctor confirming that the prescription medication can indeed result in a false positive. If the employer utilizes a medical review officer (MRO), make the same disclosure to the MRO. By disclosing the valid prescription medication, the employer will know there is an underlying “impairment,” as opposed to, say,casual drug use or illegal drug addiction. “Impairment” (not necessarily diagnosis) is now the touchstone for proving “disability” under the “regarded as” prong of the ADAAA. We told you this was tricky, right? Thus, the employee’s disclosure of prescription medication for an impairment will result in the protection intended by 42 U.S.C. §12114(b).