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Crediting non-discriminatory reasons

older workers are at risk for workplace discrimination.The judicial function at the summary judgment stage is to decide whether a jury could reasonably find in the employee’s favor on the claim at issue. In making its decision, a court follows certain rules. One such rule is that the record must be examined as a whole. Another is that inferences must be drawn in the employee’s favor. And another is that the court may not make credibility determinations. Too often, however, courts focus on select pieces of the record to the exclusion of others, draw inferences in the employer’s favor, and make credibility determinations that favor the employer. The result can be dismissal even where the employee has produced powerful evidence of discrimination. These dismissals frequently occur under the cover of “but-for” causation, the causation standard applicable in federal age cases and non-age cases involving retaliation (other than SOX cases).

Consider an example involving a 62 year-old employee who was terminated without warning after 30 years of good performance. The employee testifies that his relatively new 44 year-old supervisor, the decisionmaker, consistently called him an “old fart” and said he should “retire because he is old” and because he needed to “make room for new, young talent.” The employee further testifies that the decisionmaker made frequent comments such as “old people are low energy, tired and forgetful.” The decisionmaker even sent an email telling the employee to “dress younger” at work. The employer denies that these comments were made and says that it fired the employee because of insubordination, citing an incident where the employee refused to follow one of his supervisor’s instructions. The employee admits he did not follow the instruction in question, but contends that the real reason he was fired was his age.

The employer moves for summary judgment. Pointing to the undisputed evidence of “insubordination,” the employer argues that the employee cannot prove that but-for his age, he would still be employed. The court agrees and dismisses the case.

In dismissing the case, the court has violated all three rules governing summary judgment. First, it has not considered the record as a whole, but only a portion of the record favoring the employer. Second, the court has failed to draw reasonable inferences in the employee’s favor, one certainly being that age discrimination tainted the termination decision. Third, the court has made a credibility determination. It has credited the employer’s stated reason for terminating the employee – insubordination. A jury, however, would not be required to credit that reason. A jury could find it unworthy of credence for any number of reasons, including intangible ones like witness demeanor at trial. A jury could also simultaneously believe that the employee was insubordinate, but that age discrimination was the but-for cause of the termination.

When courts stray from the three rules governing summary judgment, cases that should proceed to trial instead get dismissed. Employee rights lawyers must be vigilant in protecting their clients against unjust dismissals at the summary judgment stage.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

EEOC has good day on ADA case in Fifth Circuit

ADA_signingPresident George H.W. Bush signing the landmark Americans with Disabilities Act in 1990.  24 years later, in EEOC v. LHC Group, Inc., 12/14/14, the Fifth Circuit revived a significant ADA case finding that the questions whether a home health care nurse was promoted to a team leader position, whether driving was an essential function for that position, and whether the employee’s inability to drive due to a seizure disorder could have been accommodated in that role were questions for a jury.

Tthe employee provided home health care to patients; she also spent “a couple of hours” traveling between patients. In March 2009, her supervisor decided to promote her to a team leader position, though the parties disputed whether she was actually promoted or simply training for the position. Team leaders manage patient care, communicate with doctors and pharmacists, schedule field nurses, and fill in when nurses are absent.

On May 26, the employee had a grand mal seizure at work and was taken by ambulance to the hospital. Her doctor released her to work two days later. On June 1, the employee discussed her medical condition with her supervisor and the director of nursing (DON). They gave her a copy of the team leader job description and asked for a release from her neurologist. He reviewed it, added a note to it stating “no driving x 1 year, no working on ladder,” and released her for work. She discussed the limitations with her supervisor and the DON; the three agreed that she would get rides to work from a coworker who lived next door to her.

The employee’s anti-seizure medicine made her “very tired” and she had memory problems. When she returned to work, she asked her supervisor for extra help with the computer-related requirements of her job, including remembering passwords and using the scheduling software. According to the employee, the supervisor simply walked away. On June 7, the employee worked a shift as a field nurse; her mother drove her, with the DON’s approval. During the next week, she continued to struggle with several team leader duties. The court found the record unclear on the degree of the employee’s difficulties and whether she was aware of her shortcomings.

On June 19, the supervisor and the DON met with the employee, pointing out several problems with her computer skills, errors with patients, and communication and scheduling problems. They set a target date of July 31 for her to “master” the team leader duties. The supervisor also allegedly told her that if her disability manifested again at work, the company would be in “trouble.” The next Monday, the employee missed work without approval to take a child to the doctor. The same day, the employer received a complaint from a patient who asked that the employee not be sent back to her home. The employee was soon terminated. The HR rep said nothing about her performance but simply stated that she was being let go “because you’re a liability to our company.”

The EEOC filed suit on behalf of the employee and the district court granted summary judgment for the employer on its ADA claims.

On appeal, the Fifth Circuit held that the proper causation standard in an ADA case is whether the employee was “subject to an adverse employment decision on account of his disability.” Turning to the merits, tt was undisputed for purposes of the motion that the employee had a disability. To show that she was qualified, the EEOC had to show she could perform her job’s essential functions with or without a reasonable accommodation. In the court’s view, the district court correctly held that driving was an essential function of the field nurse position and the employer could not have provided a reasonable accommodation that would have enabled her to perform this function.

However, the parties disputed whether the employee had actually been promoted to team leader. The EEOC offered evidence that the employee was a field nurse. Contrary to the court below, the appeals court found triable issues on whether driving was an essential function of the team leader position. The job descriptions for both jobs require a driver’s license, insurance, and access to a dependable vehicle, and they stress that significant portions of daily assignments require travel. However, the deference given an employer’s judgment on what functions are essential is not absolute. The employee estimated that, as a field nurse, she spent a “couple” of hours during her eight-hour day driving, but team leaders drove far less often. And the DON testified that many team leader tasks were performed in the branch office.

The appeals court also found questions of fact on whether the employer could have reasonably accommodated the employee’s inability to drive in the team leader role. While none of the options offered by the EEOC (public transportation, van services, rides from the employee’s mother) would have been a feasible solution as a field nurse because driving was central to that role, those options might have enabled a team leader to perform her duties. Indeed, the team leader job description stated that travel can be done “via car or public transportation.” Thus, there were triable issues on whether driving was essential as a team leader and, if so, whether the employee’s inability to drive could have been accommodated in the team leader role.

The Fifth Circuit also found questions of fact on whether the employer could have reasonably accommodated the employee’s difficulties with the essential computer and communications duties of a team leader. It first noted that the parties disputed the extent to which her disability precluded her from doing computer-related tasks. The EEOC conceded that she struggled, but contested the employer’s assertion that her difficulties predated her seizure. Plus, the employee asserted that her limitations were largely due to an unusually high dosage of anti-seizure medication, which she was in the process of tapering.

In the court’s view, if the employee was “unable to perform her essential computer-based tasks, then LHC had a duty to work with her toward a reasonable accommodation.” She expressly reached out to her supervisor, indicating she wanted temporary help using computer programs and remembering passwords due to her medication levels but her supervisor kept silent and walked away. On this record, a jury could find that the employee was denied an interactive process, the court concluded.

To show a nexus between the employee’s disability and her discharge, the EEOC highlighted that her supervisors criticized her performance only after her seizure and it claimed the criticisms were “exaggerated, unfounded, or fabricated.” It also pointed to the supervisor’s remark that the employer would be in “trouble” if her disability manifested again and the HR rep’s remark that she was fired because she was a “liability” to the company because of her disability. To the appeals court, the lower court erred in ruling that these statements on the EEOC charge were hearsay. They were made by employees speaking on behalf of the company and fell under Fed. R. Evid. 801(d)(2). In addition, the statements were not offered for the truth of the matter asserted. In light of all of this evidence, then, the appeals court found a triable issue on whether there was a nexus between the employee’s disability and the adverse employment decision. The EEOC therefore made out a prima facie case of discriminatory termination.

The court also found questions of fact on whether the employee’s termination for poor performance and inability to perform essential functions was pretextual. Several portions of the record supported the inference that discrimination was a motivating factor in the decision, including the comments about her being a liability for the company and about the company being in trouble if her disability manifested again on the job. For all of these reasons, summary judgment was reversed on the discriminatory discharge claim.

Eighth Circuit blows summary judgment appeal

b770847555_seriouslySometimes a court makes a decision so off-the-charts wrong, so at odds with the facts, and so heedless of the governing legal standard, one can only wonder what prejudice or stereotype motivated the court’s thinking.  The dismissal of Caryln Johnson’s age discrimination case by a majority of the Eighth Circuit Court of Appeals is one of those decisions.

Caryln Johnson, born in 1932, joined Securitas Security Services USA as a security officer in 2003. Throughout his seventies Johnson earned a reputation as a dependable employee who never refused a shift. Johnson did not have a regular schedule or post, but was instead offered shifts by field service managers Robert Hesse and Charlie Bunch when they needed someone to fill in for security guards at the sites for which they were responsible. Hesse was impressed by Johnson’s dependability and called him Superman.

Hesse, however, had concerns about Johnson’s advancing age. On several occasions over a three year period Hesse told Johnson he “needed to hang up his Superman cape.” Hesse “also said [that Johnson] was too old to be working.” On one occasion, when Johnson’s wife called Hesse to advise him that her husband was in the hospital, Hesse commented that Johnson “should retire,” “was ‘too old’ to continue working,” and “‘needed to hang up his Superman cape and retire.'” Hesse also compared Johnson to Hesse’s retired father, who was in his 80’s at the time of Johnson’s termination. Hesse told Johnson that Hesse’s father “tried to work, do more than [he] could do.” Hesse testified that he made the comparison to his father in response to Johnson’s acceptance of more work as a utility officer with Securitas. Johnson testified that Hesse “always referenced to his own father who was 86 [and] had to quit [work], and now Bob [Hesse] had to take care of him. He said, ‘You ought to do the same thing. Just drop everything.'” Hesse admitted to telling field service managers, including Bunch, that Johnson “needed to hang up his cape” and that Johnson was “working past his limitations.” Hesse also suggested to other managers that they “prevent [Johnson] from working 50, 60 hours a week.”

So it was until January 25, 2009, when Johnson worked the 4 PM to 8 AM shift at the site of Rail Logistics, one of Securitas’s clients. At about 5:30 AM, Johnson accidentally damaged his patrol vehicle when it came into contact with a stationary semi-trailer. The semi-trailer was not damaged. Johnson’s vehicle was still driveable and Johnson was not hurt. Securitas policy required that accidents be reported as quickly as possible. However, Securitas did not provide cell phones or radios to its security officers, and Johnson did not have access to a telephone at the Rail Logistics site. Johnson tried unsuccessfully to call the office using his own cell phone, but there was no signal.

At about 7 AM, Johnson departed and began driving his vehicle back to the office. He reached Bunch by phone at 7:02 AM and reported the accident. Bunch went to the Rail Logistics site and began preparing an accident report. Bunch spoke with Hesse at this time, and Hesse said that Johnson’s shift went to 8 AM, not 7AM. Hesse told Bunch to contact Sherri Parker in human resources about Johnson’s unauthorized departure from the Rail Logistics site, which was listed in Johnson’s employee handbook as a potentially terminable offense. Hesse called Johnson and told him to expect a call from Parker. Once again, Hesse told Johnson that it was time to hang up his Superman cape and retire. Parker called a short time later, asked Johnson if he was born in 1932, and then fired him for two stated reasons, leaving his shift early and not immediately reporting the accident. Securitas had never before fired another employee for either reason.

The court faced only one question: could a reasonable group of people look at the facts and decide that it was more likely than not that Johnson’s age was a determinative factor in Securitas’s decision to terminate his employment? A nine judge majority comprised of George W. Bush appointees held that the answer was no. Three dissenting judges correctly held otherwise.

It’s difficult to overstate the audacity of the majority’s ruling. The majority literally decided that if a group of eight ordinary people sitting in a jury box took in all the evidence and felt that the scales tipped even slightly in Johnson’s favor, they would be acting outside the bounds of reason. The majority was wrong. A reasonable jury could have ruled in Johnson’s favor based solely on Hesse’s remark that Johnson was too old to be working. It could have decided that Hesse was itching to terminate Johnson because of his age and used the car accident at Rail Logistics as a pretext to do so. To be certain, a jury might also have found in favor of Securitas. But for the majority to hold that to be the only reasonable decision was a gross and impermissible substitution of its own judgment for that of the factfinder.

In addition to the majority’s abjectly incorrect holding, its repeated reference to “the but-for cause” as the standard of causation betrays its political motivation. Every court to consider the issue has held that but-for causation does not mean sole cause. There can be ten but-for causes of a termination and if one of them is age, the employer broke the law. One must also remark on the majority’s use of the phrase “with regards to” and encourage the author of the opinion and those who failed to correct this embarrassing error to revisit their high-school grammar books.

Motley Crue and but-for causation

Not long ago, a friend asked me why I traveled from Pittsburgh to Las Vegas to see Motley Crue perform at The Joint at the Hard Rock Cafe. My reply was simple. Because, I told him, Motley Crue writes great rock-n-roll songs. Because the band members are good musicians. Because the Crue always has a great live show. It occurred to me that if Motley Crue did not write good songs, or if they were not good musicians, or if they did not have great live shows, I would not have made the trip. As I thought this through, I began thinking about but-for causation in employment cases, a particularly hot topic in employment law since the Supreme Court handed down University of Texas Southwestern Medical Center v. Nassar last June.    

Nassar was a Title VII retaliation case that followed another Supreme Court case, Gross v. FBL Financial Services, Inc., in which the Court held that the term “because of age” under the federal Age Discrimination in Employment Act meant that a plaintiff had to prove but-for causation, i.e., but-for her age, the plaintiff would not have been fired. In Gross, the Court rejected the “motivating factor” standard that many courts had previously applied to claims under the anti-discrimination laws. The question in Nassar was whether Title VII’s anti-retaliation provision, which also included “because of” language, also meant “but-for” causation, even though another provision of Title VII which prohibited discrimination “because of” protected characteristics such as race and gender was specifically defined to mean motivating cause. The Court answered in the affirmative, reasoning that Congress’s failure to specially define “because of” in the anti-retaliation as motivating cause signaled its intent to limiting the motivating cause standard to the provision prohibiting discrimination.

The debate in legal circles has been whether but-for causation is really that hard a standard to meet. My view is that it is not, and this is where I come back to Motley Crue.

I had three reasons why I went to the Crue show: (1) because of the good songs, (2) because of band members’ musicianship, and (3) because of the good live performance. If any one of these factors was not true, I would not have made the trip to Las Vegas. Each of my reasons was thus a “but-for” cause of my decision to go to the show.

Now consider an employment case with two causes of an adverse employment action, one legal and one illegal. The employer will deny the illegal cause, focus solely on the lawful cause, and then argue that even if an unlawful motive played a part in its decision-making process, the plaintiff cannot show that motive was a but-for cause of the adverse employment action.  The employer will then circle back to its allegedly lawful reason and point out how serious it was, and how the earth nearly stopped rotating because of it, and so on.

Assuming the employer did not lie outright about its lawful reason (which many employers do), the employee’s strategy is two fold.  Step 1 is to look for comparators who have engaged in similar conduct  and not been fired. This evidence will prove that but-for employer’s lawful reason, employees do not get fired.  The employee next argues that the unlawful reason is what made the difference, it was the straw that broke the camel’s back.  It may not have been the dominant reason, it may even have been a small reason, but without it, the employer would not have reached the adverse employment decision.  That is but-for causation.

All this being said, plaintiff’s attorneys should not cede the causation battle.  Some courts are finding good reasons not to import Nassar’s but-for standard into cases where defendants have sought to have it applied as the causation rule.  In Siring v. Oregon State Board of Education, for example, the ADA plaintiff asserted she was fired from her position as a tenure-track assistant professor based on the perception that she was an alcoholic. The university argued that the plaintiff’s claim was subject to Nassar’s but-for cause standard, but the U.S. District Court for the District of Oregon disagreed.  In addressing the appropriate causation test under the language of the ADA Amendments Act, the court found that ADAAA discrimination claims are less like Title VII retaliation claims and more akin to Title VII discrimination claims. The latter type of claim, per Nassar, is evaluated under the “motivating-factor” standard.  As a result, the Siring court ruled, the professor could prevail on her disability bias claim by showing that her perceived disability was a “motivating factor,” among others, in her termination.  The professor later prevailed at trial.

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