Employer short on direct threat defense

scholasticnews_indepth_images_minerThe district court in Pollard v. Drummond Co., Inc., No. 12-03948 N.D. Al. (Sept. 15, 105) found a fact question on whether a coal miner using methadone to control back pain was a direct threat under the ADA. A “direct threat defense must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence, and upon an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Chevron, 536 U.S. at 86. An employer may reasonably rely on medical evidence to make its employment decisions, but this reliance must “be reasonably based on particularized facts.” Lowe v. Ala. Power Co., 244 F.3d 1305, 1308 (11th Cir. 2001). An employer may not rely upon the recommendation of a physician who conducts a cursory examination and bases his opinion at least in part on a general assumption that all patients with the same disability have the same limitations. Lowe, 244 F.3d at 1309 (denying summary judgment where a physician recommended restrictions for a double amputee based on a cursory examination of him and a general assumption that all double amputees have the same limitations). Furthermore, an assessment based on the known possible side effects of a medication, as opposed to an individualized inquiry into a patient’s present ability to perform his job functions, is insufficient. Haynes v. City of Montgomery, No. 2:06-CV-1093-WKW, 2008 WL 4495711, at *4-5 (M.D. Ala. Oct. 6, 2008). The employer’s doctors could only speculate about the effects and side-effects of the methadone. They did not perform an individualized assessment of the employee. Moreover, the employee had worked for many years using methadone in the mines and had no significant infractions or safety issues during that time.

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.

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.

Hat’s off to Hon. Mark R. Hornak, U.S. District Court Judge

awesome-quotes-wallpapers-background-hd-wallpaperFrom the very first sentence of the Hon. Mark R. Hornak’s opinion in McClung et al. v. Songer Steel Services, Inc., No. 12-341, 2014 WL 793133 (W.D.Pa.), the reader knew they were in for a special treat:  “In this race discrimination suit, claims based solely on permissible inferences square off against an essentially vaporous defense on the summary judgment battlefield.”  Here are a couple of my favorite excerpts:

In finding the plaintiff’s comparator similarly-situated:
 “Here, both Mr. Smiley and Mr, Pierce were employed as second-shift laborers at Defendant Songer Steel’s construction project at U.S. Steel—Clairton Coke Works, in Clairton, Pennsylvania, and as such, were listed with identical job titles in Songer Steel’s Employee List and Clairton Laborer List. Songer Steel identifies these two individuals’ work performance as “the particular criteria or qualification” that was behind its reason to terminate Mr. Smiley’s employment and not recall him….” However, Songer Steel’s contention that Mr. Smiley and Mr. Pierce were not similarly situated because Mr, Pierce had no negative performance reviews misses the mark because it instead points to Songer Steel’s alleged dissimilar treatment of Mr. Smiley, a black second-shift laborer, and Mr. Pierce, a white second-shift laborer, and does not point to Mr. Smiley and Mr. Pierce being dissimilarly situated as employees. [n. 3] In some ways, Songer Steel’s argument is circular, since the next “logical” step in this mode of analysis would be that Messrs. Smiley and Pierce were not “similarly situated” because one was recalled and the other was not. Under this analytical model, no plaintiff could ever be found to be similarly situated to a better-treated comparator in any discharge/failure-to-rehire case in which the employer claims that the plaintiff’s performance was less satisfactory than that of better-treated employees. Under this approach, every such claim would fail ab initio. Moreover, the fact that Mr. Pierce had been working on the job only six days before he was fired, whereas Mr. Smiley had been working on the job for nearly two months, is not fatal to Plaintiff’s claim that the two laborers are similarly situated because the standard is that the comparator be “similar,” not identical. Mr. Smiley and Mr. Pierce were indeed hired at different times to do identical work at the same Songer Steel facility. Further, that Mr. Smiley had worked at Songer Steel longer than Mr. Pierce simply begs the question as to why, if Mr. Smiley was such a poor worker, he wasn’t laid off much earlier given Songer Steel’s stated common pattern and practice as to layoffs.”

On whether the defendant satisfied its light burden to articulate a legally sufficient reason for the plaintiff’s termination: When Plaintiff’s counsel attempted to elicit testimony from Mr. Smiley about the specifics of Mr. Smiley’s alleged “slacking off,” Mr. Leadbitter’s testimony became a veritable matryoshka doll of stacked up inconsistencies and equivocations. Here, what emerges from Mr. Leadbitter’s testimony is, at best, his wholly uncertain and conditional knowledge of Plaintiff’s allegedly subpar work performance. The sweeping, yet essentially unsupported, generalities in Mr. Kutemeier’s affidavit do little more to suggest a “legally-sufficient [explanation] to justify a judgment for the defendant.” [n.12] Based on the Third Circuit’s admonitions in Ezold, at least prior to the 2010 amendments to the notice provisions Federal Rule of Civil Procedure 56, consideration of granting summary judgment for the nonmovant (Plaintiff) would have been this Court’s next move. See Keller v. Oriz Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (noting that in an employer’s Title VII motion for summary judgment, as to the second prong of McDonnell Douglas, “[i]f the defendant cannot satisfy this burden, judgment must be entered for the plaintiff.”). However, under the amended Rule 56, a court may grant summary judgment for the nonmovant only “after giving notice and a reasonable time to respond.” Fed.R.Civ.P. 56(f).