Gregory Cobbins, an African-American male, was a ten year employee of the Tennessee Department of Transportation and sought promotion to a supervisor position. He was unsuccessful and one of the explanations for the decision was that the successful candidate had no record of disciplinary action, while Cobbins “had several oral and written warnings in his work file.”  The warnings were all received between 1998 and 2002 by a former supervisor, Yocum. Cobbins claimed in a prior lawsuit that these warnings were the product of race discrimination by Yocum. The prior lawsuit was dismissed without a judgment on the merits of Cobbins’ claim. In this case, he claimed that these earlier discriminatory acts by Yocum deprived him of the opportunity to compete fairly for the promotion to the supervisor position.

The “cat’s paw” theory in employment discrimination litigation arises in a situation where an adverse hiring decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias.  Here, Cobbins sought to show that Yocum’s past discriminatory acts, which resulted in warnings in his file, influenced the decisionmaking process that resulted in Cobbins’ being passed over for promotion unfairly:

Plaintiff seeks only to demonstrate that certain conduct and actions of his supervisor at that time impacted his work record and promotion chances; and such evidence is, therefore, relevant in this case.

This case represents an often-encountered scenario: the discriminatory bias of a supervisor inflicts permanent damage to an employee’s career by packing his or her file with unfounded or unfair warnings.

Robert L. Abell
www.RobertAbellLaw.com

The employees were paid a base salary and, in addition, were paid monthly bonuses on year-to-date performance guidelines. So if an employees’ sales were ahead of their performance plan for the year, he or she would be paid a bonus. If their production dipped below 80% of their plan, the employer, Life Fitness, could recoup previously made bonus payments by reducing an employees’ base salary.

The employer claimed that the employees’ positions were exempt from overtime under the “bona fide executive, administrative, or professional capacity” exemption. To be exempt under this provision a job must satisfy three tests: (1) a duties test; (2) a salary-level test; and, (3) a salary-basis test.

The Sixth Circuit ruled that the employees’ exemption from overtime was eliminated because the company’s compensation policy carried a significant likelihood of deductions. This was in accord with the Supreme Court’s decision in Auer v. Robbins, 519 U.S. 452 (1997). The “salary-basis” test was not met for the entire time the employees’ were subject to the significant likelihood of deduction from their base pay. However, after August 23, 2004, the effective date of new regulations, the overtime exemption was lost only during those pay periods where deductions were actually made from the employees’ base pay.

Robert L. Abell
www.RobertAbellLaw.com

The case arose from the method by which AT & T calculated service credit time toward determining an employee’s pension benefits. Basically, an employee received service credit time toward his or her pension for all leaves of absence caused by medical conditions, except those caused by pregnancy. The plaintiffs, four women who were or are life-long employees of AT & T, claimed that this method exclusing pregnancy leave from the calculation of service credit time discriminates against them based on their female sex.

The Court rejected their argument based principally on its 1976 decision in General Electric Company v. Gilbert, 429 U.S. 125 (1976), which held that a disability benefit plan excluding disabilities related to pregnancy was not sex-based discrimination within the meaning of Title VII. The Gilbert decision departed from the decision of every appeals court that had ruled on the issue. Just two years later, Congress enacted the Pregnancy Discrimination Act “so as to make clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions.”

But the Court ruled that the Pregnancy Discrimination Act did not help, because the Court majority held that the PDA applied only prospectively and did not ameliorate the discriminatory practices that Gilbert sanctioned. And so 31 years after the PDA was enacted, the Supreme Court disregards Congress’s efforts to correct the Gilbert decision and perpetuates the discrimination that the PDA was intended to eliminate.  

Robert L. Abell
www.RobertAbellLaw.com

Kathleen Ryl-Kuchar had worked for Care Centers, Inc. for over 17 years when she became pregnant with triplets in late 2002. She worked all the way up to delivery on July 17, 2003, although during the later part of her pregnancy, she worked from home and in some weeks less than 35 hours per week. Ryl-Kuchar returned to work right after delivery but began FMLA leave a short time later. A few weeks later, she elected to terminate her employment effective October 1.

About six weeks after resigning, Ryl-Kuchar learned that her health insurance had been retroactively cancelled on June 15 — just at the point where, as the court observed, she really began “piling up” the medical bills related to her pregnancy. The employer asserted that it had retroactively cancelled her medical insurance on the grounds that she had become ineligible for the coverage by having worked for less than 35 hours some weeks prior to delivery.

Ryl-Kuchar sued under the FMLA and claimed that the retroactive cancellation of her medical insurance was based on her decision to take FMLA leave. She presented evidence “that Care Centers was concerned with rising health care costs, as evidenced by an article in the company newsletter,” and that the claim she had become a part-time employee was groundless, since she was a salaried employee and had kept, at all times, the same rate of pay. Only after she took FMLA leave, Ryl-Kuchar pointed out, was there an audit of her payroll records and a claim of “mistake” regarding her eligibility for medical insurance. This proof, the court ruled, was enough to show that Care Centers retaliated against Ryl-Kuchar for taking FMLA leave by retroactively cancelling her medical insurance.

The court also ruled that Ryl-Kuchar had easily show unlawful interference with her rights under the FMLA. The court explained that the FMLA requires that an employee on FMLA leave is “entitled to have health benefits maintained while on leave as if the employee had continued to work instead of taking the leave.”

Robert L. Abell
www.RobertAbellLaw.com

The plaintiffs worked as racing officials at the Charles Town race course in the positions of placing judge, paddock judge, horse identifier, and clerk of scales during horse racing at that facility. They filed suit under the FLSA seeking overtime compensation, because they regularly worked more than 40 hours per week.

The issue was whether the racing officials’ positions fell under the administrative exemption to the overtime requirement. The administrative exemption has three components: (1) the employee must be compensated at a salary rate of not less than $455 per week; (2) the employee’s primary duty must consist of the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) the employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.

The court ruled that the racing officials’ jobs were not directly related to the general business operations of the race course. The court noted that the racing officials have no supervisory responsibility and do not develop, review, evaluate, or recommend business policies or strategy with regard to the horse races put on by their employer. While acknowledging that the racing officials’ jobs were important to the operation of the racing business and indeed that state law required the positions to exist, the court concluded that the positions “are unrelated to management or the general business functions of the company.”

 The court also analogized the racing officials’ work to those of a manufacturing production employee, stating that the position of racing official consists of “the day-to-day caring out of [Charles Town Gaming’s] affairs to the public, a production-side role.” Therefore, the court ruled that the racing officials’ position does not satisfy the requirements for the administrative exemption under the FLSA.

Robert L. Abell
www.RobertAbellLaw.com

Robert L. Abell
www.RobertAbellLaw.com

Robert L. Abell
www.RobertAbellLaw.com

“If you did a truly pure report,” he said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

Fraudulent medical opinions that cause denial of valid workers compensation claims were part of the focus of a case decided last year, Brown v. Cassens Transport. That case ruled that injured workers denied workers compensation benefits by fraudulent medical opinions may sue for money damages under the federal racketeering law RICO. Robert L. Abell wrote an article for the Kentucky Justice Association‘s publication, The Advocate, earlier this year, “Injured Workers May Pursue Civil RICO Claim Based On Enterprise To Deny Them Workers’ Compensation Benefits.”

Robert L. Abell
www.RobertAbellLaw.com

The suit appears similar to one filed last November against 2 Syracuse, New York area hospitals as reported in the Kentucky Employment Law Blog, “Interrupted Lunch Breaks Cited In Wage Class Actions.”

Employers are not required to pay employees for their meal breaks. Employers are required to pay employees for the time they work. If an employee works through his or her lunch break, they are supposed to be paid. Also, if an employee’s lunch break is interrupted by work duties, the employee must be paid according to the U.S. Department of Labor. 

Robert L. Abell
www.RobertAbellLaw.com

Laurie Chadwick, after nearly ten years employment at Wellpoint, applied for promotion to a management position. Chadwick had been performing for some time several of the position’s responsibilities, was encouraged by her supervisor to apply for the promotion, and possessed a seeming very important credential: a recent performance evaluation scoring her 4.40 out of a possible 5.00 points. Chadwick and another female were the two finalists. Chadwick had about six years more pertinent experience and her most recent performance review was superior (the other finalist received a 3.84 out of a possible 5.00 points on her review compared with Chadwick’s 4.4 out of a possible 5). Interviews of the finalists was the final step in the process. The final decision maker was a female, Nancy Miller, who graded the other finalist higher than Chadwick on the interview and subsequently offered the promotion to the other finalist.

At the time of the promotion decision, Chadwick was the mother of four children: an 11 year old son and 6 year old triplets in kindergarten. Despite the burdens that four children necessarily carry, the court noted that there was “no allegation, insinuation, or for that matter evidence that Chadwick’s work performance was negatively impacted by any child care responsibilities she may have had.”

After she was passed over for the promotion, Chadwick filed suit claiming that Wellpoint had denied her the promotion “based on the sex-based stereotype that mothers, particularly those with young children, neglect their work duties in favor of their presumed childcare obligations.” The district court granted WellPoint a summary judgment.

The principal evidence supporting Chadwick’s claim was as follows: (a) she was significantly better qualified for the promotion than the other finalist who was selected; and, (b) statements made by management around the time of the promotion decision indicated that sexual stereotyping was a factor including the following: 

• Two months before the decision was made, Miller, the decisionmaker, upon learning of Chadwick’s four children, sent an e-mail to Chadwick stating, “Oh my – I did not know you had triplets. Bless you!”

• A manager that interviewed Chadwick during the promotion process, in response to her answer to a question replied, “Laurie, you are a mother[.] [W]ould you let your kids off the hook that easy if they made a mess in [their] room[?] [W]ould you clean it or hold them accountable?”

• Miller, after informing Chadwick that she had been passed over, told her: “It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids, and you just have a lot on your plate right now.”

• Miller also told Chadwick that “if [the three interviewers] were in your position, they would feel overwhelmed.”

• Miller also advised Chadwick that, “there would be something better down the road,” and that Chadwick would look back and say, “It’s a good thing that the opportunity didn’t work out because I’m happier with this down the road.”

In defense, Miller on behalf of Wellpoint, claimed that she passed Chadwick over for a promotion because she had “interviewed poorly” and that she had only told Chadwick that she had “too much on her plate” in an attempt to “soften the blow.” Wellpoint also asserted that the other finalist was the mother of two children, an argument that the court disregarded, observing that “discrimination against one employee cannot be remedied solely by non-discrimination against another employee in that same group.”

The Court noted that the United States Supreme Court had identified sex-based stereotypes as an impermissible form of discrimination in the Price Waterhouse case, where a woman was denied partnership in an accounting firm for which she worked and was told by the partnership that she was too aggressive and macho, should attend a charm school, and should dress and behave more femininely. There, the Supreme Court pointedly observed, “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group.”

A number of decisions applied Price Waterhouse’s central holding, standing for the the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibility. An employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of anti-discrimination laws in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities. Examples include the following:

• Sex-stereotyping shown where employers stated that a woman could not “be a good mother” and work long hours, and that a “woman would not show the same level of commitment …because [she] had little ones at home.” Back v. Hastings on Hudson Union Free School District, 36 F.3d 107 (2^nd Cir. 2004).

• Sex stereotyping found where decision maker admitted he did not promote plaintiff “because she had children and he did not think she would want to relocate her family, though she hadn’t told him that.” Lust v. Sealy, Inc., 383 F.3d 580 (7^th Cir. 2004).

• Sex-based discriminatory animus shown where direct supervisor questioned “whether [the plaintiff] would be able to manage her work and family responsibilities.” Santiago-Ramus v. Centinnial P.R. Wireless Corp., 217 F.3d 46 (1^st Cir. 2000).

• In a Pregnancy Discrimination Act case evidence of discrimination shown where supervisor told employee that she was being fired so that she could “spend more time at home with her children” because that statement “invoked widely understood stereotypes the meaning of which is hard to mistake.” Sheehan v. Donlan Corp., 173 F.3^d 1039 (7^th Cir. 1999)

The Court observed that Miller’s explanation to Chadwick that, “it was nothing you did or didn’t do. It was just that you’re going to school, you have the kids, and you just have a lot on your plate right now” was particularly telling, observing as follows:

After all, the essence of employment discrimination is penalizing a worker not for something she did but for something she simply is.

The Court also emphasized a jury’s prerogative to find facts. First, the Court noted that Miller had explained the non-promotion in one way to Chadwick: that she had too much on her plate with her kids and school and then later in a very different way, that Chadwick had performed poorly on her interviews. A jury’s prerogative, the Court emphasized, would be to question the veracity of Miller’s second explanation “given that Chadwick was an in-house, long-time employee who had worked closely with her interviewers, had received stellar performance reviews, and was already performing some of the key tasks of the team lead position.” This jury prerogative could “rightly question whether brief interviews would actually trump Chadwick’s apparently weighty qualifications [.] The case was remanded for trial.

Robert L. Abell

www.RobertAbellLaw.com