Legal Issues with Employee Discipline

1
Legal Issues with Employee Discipline

• Michael T. Oakley, J.D
• Assistant General Counsel
• Oklahoma Department of Corrections

2
Due Process Appeal Rights

• New Mexico has a statute which requires just
  cause for discharge of tenured employees
• New Mexico also has a law which allows for
  discharge of public employees when they are
  unable to perform their job.
• Employers of disabled employees are required to
  make reasonable efforts to reassign
• No appeal is provided for disabled employees

3

• Candy worked for the N.M. State Personnel Office
  (SPO) for 4 years as a receptionist
• She was reassigned to a job which required a lot
  of computer work, which gave her migraine
  headaches
• Candys condition worsened and she was eventually
  unable to do her job duties

4

• Candys supervisors, Perez and Brown, determined
  that she could not do computer work any more and
  did not reassign her
• Candy was told she would be fired if she couldnt
  perform her job duties.
• No appeal was afforded because of the state code.
• Candy sued her supervisors individually for
  violation of her due process rights

5

• Candy admits she is permanently disabled, but she
  says her supervisors failed to accommodate or
  reassign her.
• Candy applied for several jobs, including her old
  receptionist job
• Candys supervisors say she has not been injured
  because she was permanently disabled and unable
  to do her job and a hearing would not help her
  anyway.

6
Questions?

• Did Candys supervisors violate her due process
  rights?
• If they did, what about the N.M. Code, which
  allows for discharge without an appeal?
• Do the supervisors have governmental immunity?

7
What process is due?

• 14th Amendment protects against loss of life,
  liberty or property without due process.
• In Cleveland Bd. of Educ. V. Loudermill (1985)
  the Supreme Court held that when someone can only
  be fired for cause, they have an expectation of
  continued employment and a property interest
  sufficient to invoke the 14th Amendment

8
Is there a property right?

• The Loudermill case requires notice and a
  hearing, yet the N.M. Code did not require a
  hearing for clearly disabled people.
• The Code required an inquiry to see if there was
  a disability, if it was permanent, and
  accommodations
• Can there be an expectation of continued
  employment when the employee is so permanently
  disabled they cannot perform the job?
• Is there a property right if there is no
  expectation an employee can do the job?

9
Rights and Immunity

• The court held that Candys supervisors violated
  her due process rights when they failed to give
  her a hearing
• What about the state law allowing them to deny a
  hearing?
• Government employees generally have immunity
  unless they are violating a clearly established
  standard.

10
Immunity

• Clearly established means sufficiently clear a
  reasonable official would understand he is
  violating the Constitution
• Both a federal law and Loudermill provide that a
  hearing is necessary
• The court ruled that the presence of a state law
  is NOT relevant to whether it is clearly
  established
• The officials here were experts in personnel law
  and cannot stand behind a statute.

11
What about FMLA?

• The Family Medical Leave Act allows up to 12
  weeks of paid or unpaid leave each year
• When an employee has a serious health condition
  making the employee unable to perform the
  functions of the position
• When a family member has a serious health
  condition (spouse, child, parent)
• Birth, adoption or foster care

12
FMLA Facts

• Leave can be paid or unpaid
• Leave must be designated by the employer
• Leave must be designated at the time taken, or
  within a reasonable time thereafter
• Employee must have been working for 1250 hours in
  the past year
• May require verification

13
Timing is Everything

• Gayle started working for JAC as an assembler in
  1984
• She then worked as a corporate administrator
  until 2001 when the job was eliminated
• Gayle accepted a transfer to accounts payable
  clerk

14

• Gayle started to suffer work related stress after
  her transfer, but refused another transfer.
• Sept. 16, 2002, Gayle saw Dr. Speegle, and was
  diagnosed with HPB and anxiety. She was told to
  take off until the 29th
• Gayle, thinking nobody else was capable of doing
  the job, ignored the Dr.

15

• Sept. 19, Gayle again saw the Dr. and this time
  the diagnosis was adjustment reaction to her new
  job and anxiety due to stress. Leave
  recommended until 10-06
• Sept. 20, Gayle called her supervisor Cindy, and
  told her she would be off until October 6.
• Cindy told her to come in the following week to
  bring the Dr. note

16

• Sept. 24, Gayle was met by security, and escorted
  to the benefits manager, Jodee.
• What transpired next is disputed
• JAC says Gayle was handed a Request for Leave
  form and a Medical Certification form. Included
  was a note that the forms must be returned in 15
  days or face discharge.

17

• Gayle says she got the forms, but didnt know
  what was going on, the procedure differed from
  before and it was stressful because her young
  daughter was with her
• 10-3, Dr. saw Gayle again, concluding Gayle still
  had anxiety, dizziness, and insomnia, extending
  leave until 10-14, at which time, Gayle would see
  a psychiatrist

18

• Gayle immediately provided Dr.s updated note to
  JAC along with the Request form
• 10-3 JAC approved leave, although Gayle had not
  turned in the medical certification form
• 10-7, JAC mailed her a correct version of the
  form (the one provided o 9-24-02 didnt meet the
  DOL requirements) with instructions to return it
  by 10-11-02

19

• 10-11 Gayle received the letter and contacted
  personnel saying she needed an extension because
  she just got the letter
• Gayle says they extended until 10-21
• JAC says they extended until 10-18
• Gayle called Dr. several times a day and finally
  hand delivered the forms on 10-21

20

• JAC sent a certified letter discharging Gayle on
  10-21 for failure to meet the10-18 deadline
• 10-29 Gayle evaluated by psychiatrist as major
  depressionOff until Jan. 16, 03
• Another psychiatrist treated her until March of
  04---15 months after her 12 weeks

21

• Gayle sued, saying JAC
• Failed to provide her written notice of FMLA
  rights
• Failed to give sufficient time to complete the
  forms
• Interfered with her statutory rights
• Discharged her employment wrongfully
• Made her condition worse

22
Questions

• May an employer discharge an employee when the
  employee has FMLA leave remaining?
• Does it matter that the employee maintains they
  would have come back if they had known?
• Does it matter whether the duration of the
  medical condition is learned after the discharge?

23
Sixth Circuit

• There is no violation of FMLA when the employee
  is incapable of returning to work after 12 weeks
• It would make a difference if Gayle had claimed
  she would return however, her doctors were all
  saying she couldnt
• Knowledge of duration of condition may be used to
  justify dismissal if there has been no prior
  interference with the exercise of FMLA rights

24
What about exacerbation

• Finally, Gayle says her employer exacerbated her
  condition, thereby preventing her return to work
• The courts have thus far not adopted the
  exacerbation theory
• FMLA does not address the cause of the condition.
  It just specifies the time one may be absent
  because of it.

25
Related FMLA Questions

• Are you designating FMLA in a timely manner?
• Are you giving notice of designation to
  employees?
• How does FMLA interact with ADA and Workers
  Compensation?

26
Workers Compensation

• Husband and wife both work for you
• Wife, a bookkeeper, has a workers compensation
  injury
• You find out that she is working for HR Block,
  part time
• You confront her, and she reports that her doctor
  will not release her to work for you, but its OK
  to work part time for HR Block

27
What can you do?

• Can you tell her she has to choose between you
  and HR Block?
• Can you give an order to return to work?
• Can you discipline her?
• Do you have to worry about discipline on her
  husband, if necessary?

28
Retaliatory DischargeWorkers Compensation

• Most states have a statue which prohibits
  discipline taken because and employee files a
  workers compensation claim
• There is a general public policy which protects
  those who make such claims
• The Kansas Courts have extended the wrongful
  discharge action to spouses where both are
  employees and the non filing party is disciplined.

29
Rules for Discharging Workers Compensation
Claimants

• Employers may not require employees to abandon
  their workers compensation claim in order to
  retain employment
• There is no retaliation if the employer merely
  wants to fill the position and the employee
  cannot do the job
• Most cases lie in the middle and require some
  careful analysis

30
Americans with Disabilities Act

• Prohibits discrimination because of a disability
• Qualified Individual person with a disability
  who can still perform essential functions
• Disability physical or mental impairment which
  substantially limits one or more major life
  activities, having a record of such impairment or
  being regarded as having impairment

31

• Major life activities include walking, seeing,
  hearing, speaking, breathing and learning
• Might also include Work
• Essential Functions
• Identify job duties
• Identify individuals skills and experience
• Essential functions can include regular
  attendance or not posing a threat to others

32
Reasonable Accommodation

• An action which allows the qualified individual
  to perform the essential job functions, but does
  not pose an undue hardship
• Process should be interactive
• Reassignment
• Job restructuring
• Equipment or devices
• Modified work schedule
• Leave usage

33

• Hall has worked as a deputy sheriff since 1979
• In May of 1994, Hall began to suffer a prostate
  condition which put him on medical leave until
  August 1994
• When he went back to work, he was assigned to
  investigations division as light duty instead of
  his regular patrol job
• Halls condition caused him to need to go to the
  bathroom frequently and precipitously

34

• While assigned to investigations, Hall applied
  for jobs within the agency in February and April
  of 1995, but he did not get the promotions
• He applied for a job as courthouse services
  guarding prisoners during court proceedings, but
  the sheriff rejected his application, saying Hall
  would need to be too close to a bathroom

35

• In late April, 1995, supervisors told Hall he
  would be assigned to a position in the detention
  facility in August
• Hall objected to the assignment and on May 15,
  1995, sent a memo to the Sheriff stating his
  condition prevented him from performing the
  patrol duties and couldnt do the detention job
  because of claustrophobia

36

• On June 12, 1995, Hall sent the Sheriff a second
  letter, asking to be assigned to one of two
  investigation positions opened
• The positions were paid the same as a patrol
  officer
• After the second letter, personnel talked to Hall
  about two different jobs which were demotions.
• Hall also got notice of another opening, but the
  application deadline had expired

37

• Hall continued to work in the investigations unit
  until August 15, 1995, when he failed to report
  to the detention position
• The sheriff then treated Halls failure to report
  as a resignation
• Hall has filed an ADA lawsuit claiming
• Sheriff should have assigned him to the vacant
  investigator positions
• Sheriff fired him because of his disability

38
Questions

• Was Hall a qualified individual with a
  disability?
• Working is a major life activity
• Did Halls urological condition substantially
  limit his ability to work?
• Nature and severity of impairment
• Duration or expected duration of impairment
• The long range impact of the impairment

39

• The court affirmed a jury finding that Hall was a
  qualified individual because his condition
  required him to be close to a bathroom, which
  interfered with a whole class of jobs, not just
  patrol officer

40
Accommodation

• Hall believes he should have one of the
  investigator jobs
• There is no requirement for a promotion or to
  create a job
• The jobs were a lateral transfer and they were
  open
• What if Hall was not the best qualified to be an
  investigator?

41
Duty to Reassign

• There is a duty to reassign
• Sometimes the disabled employee is entitled to
  the reassignment, even if he is not the most
  qualified
• The reassignment would mean nothing if an
  employer was only required to consider the
  application

42
Lateral v. Demotion

• Was Hall entitled to the lateral over the other
  two jobs, which paid less?
• In the 10th Circuit, employers must first
  consider lateral transfers
• Only if there are no vacant transfer positions
  can the employer demote the employee
• It is not reasonable to demote an employee when a
  lateral job is open and available
• The employee must have the job qualifications

43
Claustrophobia

• At the trial, Halls claim of claustrophobia was
  not proven to be a disability
• Since it was not a disability, can it still be
  considered?
• The 10th Circuit said the Claustrophobia could
  be considered to determine whether the employer
  was reasonable

44
Lessons

• Bad facts make bad laws
• The claimant must show a condition which
  interferes with a major life function
• Employers have a responsibility to look for
  lateral transfers
• No requirement to create new positions
• The claimant need not be the best qualified
  person to have priority

45
Retaliation for FilingDiscrimination Claims

• Sheila White was hired by Burlington in June,1997
  as a track laborer
• The job entailed removing and replacing track,
  cutting brush, clearing litter, etc.
• Sheila was assigned the duty of forklift operator
  because of prior experience
• In September 1997, Sheila complained to officials
  that her immediate supervisor, Bill, was sexually
  harassing her

46

• After an internal investigation, Bill was
  suspended or 10 days for sexual harassment
• On September 26, Sheila was told about Bills
  discipline and was told she was being removed
  from forklift duty because a more senior man
  should have the less arduous and cleaner job of
  forklift operator

47

• October 10, Sheila filed an EEOC complaint,
  saying the reassignment of duties was retaliation
  for her filing a sexual harassment complaint.
• In early December, she again complained to EEOC
  that she was being spied upon by Burlington
• A few days later, Sheila and her immediate
  supervisor had an argument

48

• Sheilas supervisor told the boss that she had
  been insubordinate and Sheila was placed on
  suspension without pay pending investigation
• Sheila filed a grievance and 37 days later, she
  prevailed on the grievance and was awarded back
  pay and benefits
• Sheila filed yet another retaliation charge with
  EEOC, saying the suspension caused her emotional
  problems and the worst Christmas I ever had.

49
Title VII

• It is an unlawful employment practice to
• Fail or refuse to hire or to discharge any
  individual or otherwise to discriminate with
  respect to his compensation, terms, conditions,
  or privileges of employment, because of race,
  color, religion, sex, or national origin or
• To limit, segregate, classify employees or
  applicants in any way which would deprive or tend
  to deprive the individual of employment
  opportunities or otherwise adversely affect the
  status as an employee

50
Anti-retaliation Under Title VII

• It is an unlawful employment practice for an
  employer to discriminate against any employee or
  applicant because he has opposed any practice
  made an unlawful employment practice by this
  subchapter, or because he has made a charge,
  testified, assisted or participated in any manner
  in an investigation or proceeding under this
  subchapter

51
Questions?

• Can Sheila prevail, considering she was awarded
  back pay and benefits?
• Was there an adverse employment action?
• Does it matter if there is an adverse employment
  decision?
• Does it matter that the job description included
  the less desirable duties?

52
The Supreme Court

• The anti-discrimination and anti-retaliation
  provisions are not the same because the language
  is not the same
• Congress intended to prevent acts of
  discrimination in employment practices for the
  anti-discrimination provisions
• The language of the anti-retaliation provision is
  not limited to compensation, terms, conditions
  and privileges of employment

53

• The anti-discrimination provision prevents
  employer action because of who people are (race,
  ethnic background, religion, or gender).
• The anti-retaliation provision seeks to prevent
  harm based on what individuals do (their
  conduct).
• The scope of anti-retaliation thus extends beyond
  workplace related or retaliation

54

• An employer can violate the anti-retaliation
  provision by taking actions not directly related
  to the workplace by causing harm outside the
  workplace
• There is no requirement for a tangible employment
  action to violate the anti-retaliation provision

55
Is ALL Retaliation Actionable?

• The court said individuals cannot be protected
  against all retaliation
• Title VII does not set forth a general civility
  code for the workplace
• No protection against pettiness, minor
  annoyances, snubbing or personality conflicts
• Only retaliation which causes an injury or harm
  is actionable.
• Harm must be materially adverse

56
What is Materially Adverse?

• Actions which well might have dissuaded a
  reasonable employee from making or supporting a
  charge of discrimination are materially adverse
• Job reassignment can be considered, even if the
  new duties are included in the description
• Almost all jobs have some less desirable duties
• Material adversity depends on the totality of
  circumstances from a reasonable employees
  perspective

57
What about Sheilas Reinstatement?

• Sheila was given back pay and benefits following
  her reinstatement, so there was not an adverse
  employment action
• Nonetheless, she suffered emotional distress
  outside the workplace, and she may recover for
  such distress
• Sheila had to live 37 days without a paycheck,
  not knowing her future

58
Lessons

• A reasonable employee might consider an
  indefinite suspension without pay a deterrent,
  even if they are ultimately awarded back pay
• Be careful not only of adverse employment
  actions, but also actions which well might
  dissuade reasonable employees from making or
  supporting charges of discrimination.
• Bad facts make bad laws