Fifth Circuit Permits Emotional Distress Damages for FLSA Retaliation Claim

Employees asserting a claim for retaliation under the FLSA are entitled to seek emotional distress damages, according to a recent decision by the United States Court of Appeals for the Fifth Circuit.

In Pineda v. JTCH Apartment, LLC, Plaintiff claimed that he was retaliated against by his former employer after he filed a lawsuit seeking allegedly unpaid overtime wages.  Although Pineda put on evidence of his purported emotional distress (including testimony about marital discord, sleepless nights and anxiety), the District Court refused to instruct the jury that they could award emotional distress damages for Pineda’s FLSA retaliation claim.  Pineda ultimately prevailed on his retaliation claim.

On appeal, the Fifth Circuit held that emotional distress damages are available in FLSA retaliation cases, and that the District Court erred by not instructing the jury to consider whether Pineda was entitled to such relief.  While the Court acknowledged that the FLSA does not provide explicitly for emotional distress damages, it noted that the statute’s anti-retaliation provision allows for “such legal or equitable relief as may be appropriate” and that this “expansive language . . . should be read to include the compensation for emotional distress . . .”

The Fifth Circuit is now the third Circuit Court (joining both the Sixth and the Seventh Circuits) to hold that emotional distress damages are available in FLSA retaliation cases.  The issue is unresolved in other circuits, although the First, Eighth, Ninth and Eleventh Circuits have all maintained awards of emotional distress damages in FLSA retaliation cases, without deciding whether such damages were appropriate.

This case illustrates the courts’ readiness to award appropriate damages for acts of retaliation. Employers are encouraged to train managers to be cautious in taking action against employees who have asserted statutory rights.

Evidence That Younger Employees Violated Company Policy Without Consequences Results in Denial of Summary Judgment

In light of evidence that younger employees committed similar infractions as the plaintiff, and did not suffer significant disciplinary action, an Illinois federal district court denied an employer’s summary judgment motion. The Court ruled that evidence of disparate treatment plus age-based comments by management was sufficient to create a fact issue as to whether the plaintiff’s age was the but-for cause of termination. Wyman v. Evgeros, Inc. (N.D. Ill. Jan. 27, 2017).

 

In Wyman, the plaintiff, worked morning shifts prior to undergoing surgery. Following post-surgery recovery, she asked to resume morning shift. Her request was denied by the employer which, citing business needs, placed her on an afternoon schedule. Although the parties disputed whether the plaintiff knew she had to work these shifts, it was undisputed that the plaintiff missed three afternoon shifts – a violation of company policy. As a result, the employer terminated her employment.

 

Although compliance with Company policy ordinarily is a nondiscriminatory reason for termination, the court found that similarly situated younger employees committed different but seemingly similar infractions but were not terminated. Specifically, younger employees allegedly arrived at work intoxicated; arrived late for work; and exposed their tattoos, all in violation of company policy. None failed to report for work on three days. Despite that significant difference, and finding that a reasonable fact-finder could conclude that the employer’s “legitimate expectations were disparately applied,” the court found this evidence sufficient to permit an inference of discriminatory intent. Furthermore, the plaintiff presented evidence that the restaurant’s shareholder and her son made disparaging comments about elderly people. After considering these statements in conjunction with the employer’s alleged differential treatment of younger employees, the court reserved for trial whether age was the but-for cause of her termination.

 

This decision serves as a reminder to employers of the importance of ensuring consistent application of the spirit of company work rules. Distinctions based upon factual differences may not be enough where the seriousness of the violations are similar, at least says this court. Regularly scheduled management training can help reduce such incidents that create liability to the company.

 

Kansas City Region Offices: Kansas City, Missouri and Overland Park, Kansas

Jackson Lewis’ maintains two offices in the Kansas City Region, with a total of nine attorneys. The Overland Park, Kansas office opened in 2014. The Kansas City, Missouri offices opened in 2017. The offices are led by Office Managing Principal Brian J. Christensen. The nine attorney team includes members of the firm’s class action and complex litigation practice group, as well as corporate diversity counseling, disability, leave and health management, employee benefits, general employment litigation, labor and preventive practices, and wage hour practice groups.

Attorneys in Kansas City area offices are included on the 2017 Best Lawyers list and are rated in Martindale-Hubbell as well as Super Lawyers. Our Kansas City region offices recently received high honors when they were recognized by U.S. News and World Report and Best Lawyers in America as Tier 1 National 2017 Law Firm of the Year in three practice areas: Employment Law – Management; Labor Law – Management; and Litigation – Labor and Employment.

Both offices may be viewed via the following links:

Overland Park, Kansas:  http://www.jacksonlewis.com/office/overland-park

 

Kansas City, Missouri: http://www.jacksonlewis.com/offices?filter=offices&state=MO|US

 

 

Arkansas Federal Court: Failure to Accommodate, in and of Itself, Violates the ADA

Despite the lack of a clear causal connection between an employer’s failure to grant an employee’s request for additional training and its decision to terminate her employment, an Arkansas federal district court recently denied the employer’s summary judgment motion on the plaintiff’s failure to accommodate claim under the Americans with Disabilities Act. In denying summary judgment, the Court held that, “a failure to accommodate is, in and of itself, a form of discrimination under the ADA.” Orr v. City of Rogers (W.D. Ark. Feb. 3, 2017).

In Orr, Plaintiff requested additional training after initially undergoing certain medical procedures. According to the plaintiff, the employer offered her only “generic trainings,” as opposed to training on software and protocol changes that occurred while she was out on leave. The employer subsequently terminated the plaintiff’s employment following seven work infractions during a two-month period. After finding the employer had legitimate, non-discriminatory reasons for terminating Plaintiff’s employment, the Court examined whether the failure to accommodate claim survives the dismissal motion. The District Court recognized that courts disagree on whether a plaintiff must show an adverse employment action to have an actionable failure to accommodate claim, and observed that the Eight Circuit has held a failure to accommodate can be an adverse employment action. The district court ultimately held that the plaintiff need not show her employer’s failure to accommodate her training request resulted in her termination. Thus, the plaintiff could “seek damages for the failure to accommodate itself,” even if only nominal damages. Because the employer did not explain why it failed to accommodate the plaintiff’s request and questions of material fact existed regarding whether the employer engaged in the interactive process, the plaintiff’s failure to accommodate claim survived summary judgment.

This decision serves as a reminder to employers of the importance of engaging in the interactive process with employees seeking an accommodation. Documenting the steps the company takes to engage in the process can go a long way to defending a failure to accommodate claim.

Employee’s Retaliation and Hostile Work Environment Claims Based on a Rumor Spread in the Workplace Survives Motion for Summary Judgment

In Baez v. Anne Fontaine USA, Inc., the United States District Court for the Southern District of New York denied an employer’s motion for summary judgment to dismiss a terminated employee’s retaliation claims under Title VII, New York State Human Rights Law and the New York City Human Rights Law, and hostile work environment claim under NYCHRL.

 

On December 27, 2013, Plaintiff, a female regional sales manager for employer, a clothing retailer, learned that three female colleagues were spreading a rumor that, at a recent meeting with the CEO, Plaintiff wore a revealing shirt without undergarments. Plaintiff reported this rumor to the corporate controller, who issued a written warning to one of the employees without specifically addressing the rumor. On February 7, 2014, the employer terminated Plaintiff citing, among other reasons, that Plaintiff was associated with “too much drama.”

 

While the Court recognized that Plaintiff’s retaliation and hostile work environment claims were “not strong,” the Court nevertheless found that the employer listing “drama” as one of the reasons for termination coupled with the “temporal proximity” between Plaintiff’s complaint about the rumor and her termination was sufficient to create a “genuine dispute of material fact” as to whether the Plaintiff’s complaint was the “but-for cause” of termination. In addition, the Court denied the employer’s motion to dismiss Plaintiff’s hostile work environment claim because the gender-related rumor and the employer’s apparent reference to the incident as “drama” could lead a jury to find that Plaintiff was subjected to a hostile work environment under the low standard of the NYCHRL.

This case serves as a reminder to employers that an employee cannot be terminated or disciplined for communicating concern about what is perceived to be a discriminatory practice. Further, an employer must be cautious to not list anything as a basis for an employee’s termination that may be construed as “protected activity.”

Employer Failure to Provide Reasonable Accommodations for Migraines Results in Legal Headaches

In Bethscheider v. Westar Energy, the United States District Court for the District of Kansas denied Defendant’s motion to dismiss claims under the Americans with Disabilities Act (“ADA”).  Alleged by Plaintiff was that her migraine headaches constituted a disability entitling her to a reasonable accommodation.  The Company terminated Plaintiff for “excessive absenteeism” despite the fact that only four of her eleven absences between January and May were attributable to her medical condition.  Since Plaintiff’s headaches usually lasted less than one day, and she made up missed work time the following day, Westar Energy believed that Plaintiff did not require a reasonable accommodation.  The Court disagreed, in effect finding that a violation of the ADA might exist.

For a condition to be defined as a disability under the ADA, it must “substantially limit” a “major life activity.” The Court relied upon Equal Employment Opportunity Commission regulations defining “substantially limit” to mean that a person is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.”  Plaintiff argued that her migraine headaches, though only affecting her occasionally, “substantially limit” her ability to work.  The Court noted that, depending on the facts, migraines may be considered a disability and, thus, Plaintiff set forth sufficient facts to establish a plausible claim at the initial stage of the pleadings.

An employer should be wary of making decisions regarding an employee’s medical condition without review of medical documentation and advice of counsel. As further source of concern arises from state laws that are broader than the ADA, requiring employers to provide reasonable accommodation for “lesser” medical conditions.

Working At Home May Be A Reasonable Accommodation

Working at home may constitute a reasonable accommodation according to a recent decision in Rezvan v Phillips Electronics North America Corp., Case No. 15-cv-04767-HSG (N.D. Calif.)  In Rezvan, a former employee with rheumatoid arthritis who worked as a Contract Manager, sued Phillips under the California Fair Employment and Housing Act (“FEHA”) for disability discrimination. Phillips moved for summary judgment on the grounds that Plaintiff could not perform the essential functions of her job because regular onsite attendance was an essential duty of a Contract Manager and Plaintiff was frequently absent due to her illness.

Under the FEHA, a plaintiff must demonstrate that she is qualified for the position she held by showing she was able to perform the essential duties of the position with or without reasonable accommodation. The Court held that a disputed material fact existed regarding whether Plaintiff could have performed the essential functions of her position with increased flexibility to work at home and whether that increased flexibility would have been a reasonable accommodation. In reaching this decision, the Court relied on Plaintiff’s supervisor who testified that the key responsibilities of contract managers could be executed remotely. Additionally, Phillips had allowed another contract manager to work at home on a fulltime basis for ten months without reporting to the office, during which time she had no issues completing her work. Plaintiff also established that she frequently requested to work at home on days where her condition worsened. Her supervisor denied these requests, referring to the company’s sick time policy, and insisted that Plaintiff stay at home and not work.

The decision highlights the personalized nature of the interactive process and reminds employers that a “one size fits all” approach is not viable. With the advent of the digital age, many jobs can be performed remotely, and working at home may constitute a reasonable accommodation. To the extent a job requires presence in the office, the job description should be modified to reflect that requirement.

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