Management Update Newsletter

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Volume 6, Issue 9

September 2017

13 Lawyers Provided as Diligent Assistance for Pro Se Employee's Wrongful Discharge Appeal

The Eighth Circuit Court of Appeals affirmed a lower court's summary judgement against a wrongful termination claim brought by an African-American University of Arkansas employee. The Eighth Circuit found that the lower court diligently assisted the employee and did not fail to take into account her pro se litigant status. Over the course of the litigation, the court appointed 13 attorneys to her lawsuit. According to the lawsuit, the employee was hired as a program specialist for a community outreach program. During her 90-day probationary period, she received a satisfactory performance review in all but one category. The employee later went to an HR administrator and asked to file a grievance, claiming her coworkers were harassing and taunting her. She also met with her program's director to complain about her supervisor, coworkers and performance review. She also informed the director that she suffered from depression, fibromyalgia and an anxiety disorder and asked about time off to attend a doctor's appointment. The director explained the University's policy that required employees to request leave two weeks in advance and call their supervisor by 7:00 AM on the day of an absence if they were calling in sick. Not long after the discussion with the director, she emailed that she was submitting a formal accommodation request to attend medical appointments, and the next morning a little before 7:00 AM, she emailed the director and her supervisor to let them know she was calling in sick. Later that same day, she wrote to inform them her doctor was requesting she be off work for the next two weeks as reasonable accommodation for her fibromyalgia, and that she would need FMLA leave. When she was told she did not qualify for FMLA leave because she had not been employed for a year or worked the requisite number of hours, she filed an EEOC charge alleging retaliation and race, sex , age, and disability discrimination. She was terminated one week after filing the charge. In lower court proceedings, the employee sued the University board of trustees and moved for appointment of counsel. During the course of litigation, she was appointed 13 attorneys to represent her, but she ultimately proceeded pro se. On appeal, the employee argued the district court had failed to consider her pro se status and "ignore[d] the fact that [she] was without counsel and HAD NOT been provided any opportunity for discovery through her numerous appointed attorneys." The Eighth Circuit reminded the employee that "she ha[d] no constitutional right to counsel in a civil case," and pointed to the 13 attorneys the district court had appointed over the course of litigation.

Third Circuit Denies Plaintiff's Retaliation Claims

The Third Circuit Court of Appeals denied former Victoria's Secret store manager Mindy Caplan's retaliation claims against the retail giant. According to court papers, Caplan, a white district manager, was fired shortly after posting two racially charged images on Facebook. The first images was a repost of a person wearing a hooded robe with a Los Angeles Clippers logo and the number 42 on it. It was captioned "Game 5 in LA is Free Sheet Night...Donald Sterling Bobble head doll night too!" which referred to the former Clippers owner who was ousted after a video of him making racist remarks went viral. The second image was what appeared to be a still shot from a local newscast picturing an African-American woman named "Airwrecka McBride," and captioned "I've been spelling Erica wrong my whole life." Caplan claimed the speech was protected because the Sterling post was a protest against racism and the Airwrecka post was meant to be a joke, not racist. Third Circuit Judge Theodore A. McKee disputed this claim, stating the second post could only be read as "satiriz[ing] the atypical spelling of an African-American woman's name," which gave Victoria's Secret the right to fire Caplan. Caplan had claimed she was fired for taking too much time off under the Family and Medical Leave Act, but McKee said Caplan failed to show Victoria's Secret's reason for firing her was pretextual.

Eleventh Circuit Overturns District Court's Order in Waffle House Arbitration Case

In December 2014, William Jones applied for a job at Waffle House in Florida. He was informed that Waffle House would be running a background check on him, but he never heard back from Waffle House. He also did not receive a copy of the background check, and his application was denied. In October 2015, Jones sued Waffle House along with several data reporting companies claiming they had violated the FCRA by failing to give him a copy of his background checks and an opportunity to dispute the results. Jones also sought to lead a class of U.S. residents who had applied for or were employed with Waffle House in the preceding five years and whom Waffle House had taken adverse employment actions against based on background checks. While the class-action lawsuit was pending, Jones applied for a Waffle House in Missouri and obtained employment in February 2016. When he was hired, Jones signed an arbitration agreement that delegated "all claims and controversies, past, present, or future, arising out of any aspect of or pertaining in any way to [his] employment." The agreement also delegated gateway questions of arbitrability to the arbitrator and waiving class-action arbitration. Waffle House learned Jones was employed in Missouri and moved to compel arbitration, claiming the arbitration agreement prevented Jones from proceeding with the class action lawsuit and due to the delegation provision, any issues of arbitrability were issues for the arbitrator and not the district court to decide. The district court denied the motion, saying the arbitration agreement was an illegal communication between Waffle House's attorneys and Jones. However, on appeal, the Eleventh Circuit overturned the district court's order, stating that agreement "clearly and unmistakably" delegated issues of arbitrability to the arbitrator and rejected the plaintiff's arguments that the arbitration agreement was unconscionable, an improper interference with the district court's managerial authority over class action communications, and/or improper ex parte communication with a represented party.

Medical Marijauna Law Protects Employees

After Connecticut passed a law that allowed employees to obtain and use medical marijuana, employers have struggled with whether or not federal law would supersede state law. In a recent federal district court case has ruled that Connecticut employees who have a Department of Consumer Protection certificate to use medical marijuana outside of work are protected as long as they are not impaired while at work. The ruling allows employees who are fired for testing positive for marijuana in a drug screening can sue their employer. Connecticut's statute makes it unlawful to refuse to hire or terminate an employee on the sole basis of the employee's status as a qualifying patient or testing positive for marijuana. However, the law does not protect employees who are found to be using prohibited substances or under the influence during work hours. The court's analysis of the federal laws concluded that they do not address employment and do not make it illegal to employ someone who is legally using medical marijuana.

"Too Cute" Yoga Instructor Fired

Dilek Edwards, a yoga and massage therapist at a chiropractic center owned by a married couple claims she was fired because the wife was jealous of her relationship with the husband. According to Edwards, Charles Nicolai told her after he hired her that his wife, Stephanie Adams, may become jealous because Edwards was "too cute." Edwards was later fired in a series of text messages sent by Adams that also ordered Edwards to stay away from her and her husband. In an amicus brief, the New York City Commission on Human Rights said that the lower court erred in its ruling that Edwards' could not prove gender discrimination because she was unable to prove the couple would have fired a man who was "too cute." The New York Supreme Court Appellate Division reversed the lower court's ruling that said termination based on spousal jealousy was not sex discrimination under city and state laws. However, the appellate court said adverse employment action motivated by sexual attraction is prohibited. Edwards' lawyer said
"[i]t makes clear that a decision that's based on sexual attraction is gender discrimination."

Sick Employee's Refusal to Work Overtime Protected Under FMLA

A federal court in Minnesota has ruled that Bridgette Mitchell, and employee at Federal Cartridge Company (FCC), can move forward with her FMLA violation suit against FCC. Mitchell claims that she was fired after she took FMLA leave. In November 2016, Mitchell volunteered to work overtime on November 5 and 6. However, on November 2, Mitchell asked to be excused from work because she was feeling ill. On November 3, she went to the doctor and was diagnosed with strep throat and an ear infection, which meant that she was unable to work the overtime she had volunteered for on November 5 and 6. Upon returning to work on November 7, Mitchell was told she was being suspended for violating company policy at the end of her shift. On November 17, she went back to her doctor and got a "medical statement" that said she had been "totally unable to perform any type of work" between November 3 and November 6 . She was later terminated on November 29, 2016. FCC filed a motion to dismiss which was denied because they were unable to prove that Mitchell did not give appropriate notice of her "serious health condition."