Friday, July 1, 2016

Calling Muslim Clerk ‘Bin Laden’ Could Create Hostile Work Environment

By Dave Strausfeld, J.D.
July 1, 2016
A Muslim hospital clerk of Indian descent survived summary judgment on his Title VII claim that he was subjected to a hostile work environment by being repeatedly called “Bin Laden” by his supervisor and some of his coworkers, held a federal district court in Illinois. Referring to him by this nickname was facially motivated by his race and religion, and a reasonable jury could find that the harassment was severe or pervasive. But his discriminatory discharge claim failed because there was no evidence that the hospital’s justification for terminating him—insubordination and threats—was pretextual (Khan v. County of Cook dba John H. Stroger, Jr., Hospital of Cook County, June 28, 2016, Blakey, J.).
Altercation with supervisor. On July 8, 2012, the hospital clerk became annoyed when his supervisor moved his lunch break back one hour and, as he recalled it, did not inform him of this until 10 minutes after he was supposed to have started his break. When he asked for an explanation for the change, his supervisor allegedly replied, “Bin Laden, I don’t have to give you no reason.” The clerk then raised his voice and, according to his supervisor, got very close to her face, threatened her with harm, and called her a “black bitch.” He was then escorted from the hospital.
Following the blowup, the clerk was subject to a disciplinary hearing at which seven witnesses—three patients and four hospital employees—all supported his supervisor’s version of the altercation. As for the label “Bin Laden,” there was also testimony that his supervisor had called him this on other occasions and that, after she began using this appellation, other employees followed suit and sometimes called him “Bin Laden” in the supervisor’s presence. Nonetheless, based on the clerk’s insubordinate and threatening behavior during the July 8 altercation, the hearing officer recommended that he should be terminated, noting also prior disciplinary incidents on his record. The clerk subsequently brought this suit.
Discriminatory discharge under Title VII. “Given the context of the United States’ war on terrorism and Bin Laden’s attacks on the United States in 2001,” the court began by observing, the reference to the hospital clerk—a Muslim man—as “Bin Laden” could obviously “be deemed offensive under the facts of this case.” Even so, there was no evidence that this offensive nickname related to the hospital’s motivation for firing him or that the reason the hospital gave for its decision—his insubordinate and threatening behavior on July 8—was a pretext or lie.
The clerk alternatively sought to prove discriminatory discharge by pursuing a “cat’s paw” theory (i.e., by arguing that a decisionmaker was manipulated by someone with bias), but this argument failed because the hearing officer did not simply accept the supervisor’s version of events but rather conducted an independent investigation into the July 8 incident. Because there was no evidence that the hearing officer’s decision to recommend his termination was infected with bias, the clerk’s discriminatory discharge claim failed.
HWE under Title VII. The clerk had more success on his HWE claim. “Using the ‘Bin Laden’ nickname to refer to a Middle Eastern Muslim man,” the court noted (describing the clerk, who was of Indian descent, as Middle Eastern), “is facially motivated by his race and religion.”
While it was a “close call” whether the alleged harassment could be found severe or pervasive, the Bin Laden comment was more than just a one-time occurrence, and other employees followed his supervisor’s “poor example and adopted the slur,” the evidence showed. And, without question, the slur was directed at him and only at him. Given the relative burdens of persuasion, the court found that the clerk had offered enough to get to a jury on this point. While the hospital insisted the clerk considered such comments as teasing, the clerk denied this and the court was not convinced of it either.
He also established a basis for holding the hospital liable, because the Supreme Court held in Ellerththat an employer is vicariously liable under Title VII for a hostile environment created by a supervisor (with the possibility of asserting an affirmative defense).
Other claims. But the clerk could not proceed to trial with his claim under Section 1983 for violation of the rights guaranteed by Section 1981, because he presented no evidence that the actions of his supervisor were motivated by a policy or custom at the county-run hospital. He also could not move ahead with his claims against the hospital for negligent hiring and supervision of his supervisor, because he could not satisfy the elements of those torts.
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Lack of Admissible Comparator Evidence Defeats Fired Nurse’s Bias Claims

By Joy P. Waltemath, J.D.
July 1, 2016
Unhappy with the change in course between a discharged nurse’s deposition, where she said she didn’t know of any other nurses who were treated more favorably after receiving patient and coworker complaints, and her later affidavit attesting to personal knowledge of two white nurses who had neither been fired nor disciplined after patient complaints, the Seventh Circuit found she had not even established a prima facie case of race or age discrimination. The court upheld summary judgment granted to her hospital employer, finding the lack of admissible evidence of similarly situated comparators doomed her case (Simpson v. Franciscan Alliance, Inc., dba Franciscan St. James Health, June 28, 2016, Manion, D.).
According to the hospital, multiple complaints from patients and their families, as well as from a physician, resulted in four “employee corrective action reports” within a year. The first two noted that further corrective action could include termination. The third reprimand was based on multiple patient complaints from which the nurse filed a formal appeal but did not allege discrimination; that appeal was unsuccessful. She was discharged after a patient complained that the nurse had confronted her “and removed her morphine pump prematurely after learning about the patient’s complaint that [the nurse] never brought her ice as promised.” That final disciplinary action cited hospital policy authorizing discharge for “[d]iscourteous, abusive or inconsiderate treatment of patients.”
In opposing her employer’s motion for summary judgment on her Title VII and ADEA claims, the nurse had argued that its reliance on the four disciplinary reports was pretextual and that she had been held to a higher standard than employees who were not African-American or were younger than 40. Simpson disputed the truth of the accusations from patients and family members recounted in the reprimands but did not dispute that the accusations had been made. But the lower court found that, although she had made out a prima facie case, she lacked evidence of pretext.
Relying on the nurse’s deposition testimony as well as affidavits from the nurse and a coworker, the Seventh Circuit found the nurse had not made out a prima facie case for either age- or race-based discrimination because the record did not contain admissible evidence that a similarly situated employee outside of her protected class was treated more favorably.
Comparator evidence. The court first cited the nurse’s deposition, during which she could not identify any potential comparator, essentially conceding that she did not have evidence of similarly situated coworkers being treated more favorably: “Everything that’s written in the office is between you and the manager … I just know about myself.” She also submitted her own affidavit attesting to personal knowledge of two white nurses, one of them under age 40, who had not been fired or even disciplined after complaints from patients. One of those nurses, the nurse said, had been accused by a patient of being rude and unprofessional; the other allegedly had received five or six patient complaints in one day. And another nurse’s affidavit claimed personal knowledge of two other nurses who were not disciplined, one after failing to monitor a patient and the other despite chronic tardiness.
But, said the appeals court, this was not admissible evidence of other nurses receiving favorable treatment, nor had the nurse supplied a foundation for her claims of having personal knowledge of the alleged misconduct and the employer’s disciplinary response—or lack thereof. Instead, she had “only vague, conclusory assertions about incidents outside her personal knowledge.”
Evidentiary contradictions. The nurse’s affidavit did not explain how she possibly could possess personal knowledge of the patients’ complaints or the reaction to those complaints by hospital management. Her earlier testimony was she did not know of any similarly situated employee who was not disciplined after engaging in comparable misconduct, and that personnel information was between employee and management. She could “not contradict these admissions without explaining the basis of her personal knowledge in a later affidavit in order to survive summary judgment.”
One complaint does not a similarly situated comparator make. Specifically addressing one email in the record discussing a patient’s complaint that the nurse and another nurse had been rude, the court questioned whether it could even accept the nurse’s claim that the other nurse had not been disciplined (how would she know?). The court also pointed out there was no evidence of the other nurse’s disciplinary history and performance record with which to compare.
Stressing that the nurse’s reprimand for this episode “came after she allegedly went back andconfronted the patient upon learning of the patient’s complaint,” the appeals court pointed to a lack of evidence the other nurse “compounded her initial rudeness in a similar way.” And the nurse here had received two other complaints from patients or family members that same month, in addition to the three previous reprimands. Thus, overall there was a lack of admissible evidence of any similarly situated comparator.
Nor did the nurse dispute that the hospital had received four complaints from patients and family members, or that a physician had initiated the first reprimand. Even though she questioned the underlying accusations, the relevant inquiry was whether the stated reason for her discharge was in fact why the hospital fired her, “not whether the action was free of mistake or even fair.” Her speculation as to comparators was insufficient.
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Thursday, June 30, 2016

Discrimination Case Against UC Regents is Heading Back to Court

Karen Natividad

Opinion By Justice Aaron
Daily Appellate Report; June 22, 2016

In February 2010, Deborah Moore became the Director of Marketing at UCSD's Marketing and Communications Dept.  In June, Kimberly Kennedy became the Executive Director of the Department.  In early September, Moore was diagnosed with a heart condition and had to temporarily wear a "LifeVest."  Kennedy allegedly became "hostile" and "snippy" and began eliminating Moore's "main responsibilities" after becoming aware of Moore's medical condition.  This led Moore to believe that Kennedy was trying to get rid of her, which Kennedy eventually did on February 5, 2011, citing "lack of work" and budgetary constraints.  Moore sued the Regents of the University of California alleging disability and retaliation claims under, among other things, the Fair Employment and Housing Act (FEHA). The trial court ultimately granted summary judgment in favor of the defense.

Reversed in part and remanded. Under the three stage burden-shifting test for FEHA discrimination claims in McDonnell Douglas Corp. v. Green, the plaintiff has the initial burden to establish a prima facie case of discrimination.  If successful, the burden shifts to the employer to demonstrate that its  action was taken for a legitimate, non-discriminatory reason.  If sustained, the plaintiff may demonstrate that the proferred reason is false or pretextual.  Here, only the last step was in dispute. The trial court rejected Moore's proffer.  However, the timing of Moore's firing despite her "rapid ascension in the Department," Kennedy's belief that Moore was not healthy enough for the job, and Kennedy's failure to follow policies or procedures provided sufficient evidence from which the trier of fact could infer that the proferred reasons for Moore's termination may have been untrue or was a pretext for disability discrimination.  Hence, summary judgment on Moore's FEHA discrimination claim was improper.  The court likewise overturned the judgment as to her other claims with the exception of the FEHA retaliation claim.

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Bank of America Settles Wage and Hour Class Action for $2.25 Million

California Labor Law News 

Oakland, CA: Final approval has been granted for a proposed settlement in a California Wage and Hour Lawsuit against Bank of America alleging improper classification of some employees. The settlement, granted final approval on January 14 of this year, is worth $2.25 million.

According to court documents, plaintiff Zelma Brawner was an employee of the Bank of America in California for almost three decades at the financial institution’s back-office facility located in Concord. Brawner alleged in her California Wage and Hour class action that the defendant misclassified dedicated service directors (DSDs) as administrative employees - denying anyone working as a DSD overtime pay.

The DSD is a kind of personal concierge available to bank customers and clients, and according to the plaintiffs, “If the customer wishes to open a new account, close out an old account or inquire about the status of a transaction in an existing account, the customer can contact the DSD and expect a personalized and prompt response,” the employees said in the motion. “The Bank did not pay any overtime premium pay to the DSDs because it classified them as ‘administrative’ employees who are ‘exempt’ from the overtime protections set forth in Wage Order 4.”

In her California wage and hour lawsuit - first brought in June 2014 - Brawner cited no fewer than five violations to California wage and hour laws: failure to pay overtime wages, failure to provide accurate itemized wage statements, willful failure to pay all wages due within 72 hours after separation from employment, violation of California’s unfair labor law, and violation of the Labor Code Private Attorneys General Act.

The defendant, Bank of America, is reported to have denied the allegations, but agreed to the settlement as a pathway to avoid a costly and lengthy litigation.

In her summation granting final approval of the settlement, the judge in the case noted that “litigation poses risks and is expensive, and an evaluation of the strengths and weaknesses of the plaintiff’s and the defendant’s cases militates in favor of settlement,” Judge Yvonne Gonzalez Rogers wrote in the order granting final approval. “Second, the settlement treats class members fairly, allocating the money to them based on a formula weighted by their annual salary, estimated overtime hours and eligible workweeks.”

The settlement is reported to cover DSDs, treasury service consultants and senior treasury service consultants numbering 133 in total and having worked for Bank of America at the Concord facility from May 9, 2010 through January 14 of this year, the date at which the California Wage and Hour Settlement was formally approved.

Following dispensation for court costs, legal fees and other deductions, some $1.6 million will be available for class members according to the judge’s distribution template, noted above.

The case is Brawner v. Bank of America National Association, Case No. 3:14-cv-02702, in US District Court, Northern District of California.

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Wednesday, June 29, 2016

Denying Transgender Extern Use of Women’s Restroom Supports Failure-to-Hire Claim

By Kathleen Kapusta, J.D.

June 28, 2016

Allegations by a transgender woman that during her externship, her supervisor told her she could not use the women’s restroom and refused to allow her to participate in an examination of a female patient because “only females are allowed beyond this point,” and that the supervisor told others on the day before she was terminated from the externship that “he-shes . . . and gays will need to answer to Jesus some day” were sufficient to allow her Title VII and NYHRL failure-to-hire claims to survive dismissal. Because the plaintiff, however, was never actually the defendant’s employee, but rather an unpaid extern, her other discrimination claims were dismissed by the federal district court in New York (Carr v. North Shore – Long Island Jewish Health Systems, Inc., June 23, 2016, Seybert, J.).
Selected for the externship without an in-person interview, the plaintiff interviewed for a full-time position with the defendant prior to the start of the externship and was told that the successful completion of the program would result in a job offer. After she began her externship, she alleged that her supervisor consistently demeaned her in the presence of others, yelled at her numerous times, screamed “what is wrong with you,” and belittled her by making her package dog treats for a pet fair.
Use the public restroom. She also claimed she was repeatedly locked out of the bathroom used by female employees and that when she attempted to access it, she heard “chatter” and was subjected to “stares.” On one occasion, she alleged, after encountering a locked ladies room, she asked her supervisor why the bathroom was locked and was told “to use the public restroom, and not the restroom designated for the female employees in the unit where she served as an extern.” She also claimed that prior to the examination of a female patient, she was “left behind a closed door” and told by her supervisor that “only females were permitted beyond this point.”
Answer to Jesus. About a month after she started the externship, she alleged that her supervisor asked about her religion and when replied that she belonged to a church that “catered to alternative lifestyles,” her supervisor told her Jesus did not recognize such a religion. Later that day, she purportedly overheard her supervisor telling a patient’s mother that her church was “not a religion that is recognized by Jesus and people like her, and the he-shes, . . . and the gays will need to answer to Jesus some day.” The following morning, she received an email asking her not to return to the externship.
Claiming that it was the defendant’s custom and practice to offer permanent positions to externs upon successful completion of the program, she sued under Title VII and the NYHRL alleging it failed to hire her based on sex and religion.
“I’m not sure.” The court first rejected the defendant’s contention that the plaintiff’s allegations should be dismissed as “speculative” because she questioned in her final email to the defendant whether or not she was fired because of her gender, stating “was it my Gender, I’m not sure.” Whether or not she subjectively believed at the time she was terminated that she was the victim of discrimination was not dispositive with respect to the element of intent, said the court.
Failure to hire. As to her allegation that the defendant failed to hire her because of her gender, her second amended complaint provided enough circumstantial evidence of discriminatory intent to allow her claim to survive the defendant’s motion to dismiss. Although much of the alleged conduct lacked a tangible link to a discriminatory purpose, her claims that her supervisor made specific negative comments about her gender on three separate occasions together with the fact that she was terminated the day after the supervisor made her last comments about her gender and religion were sufficient to allow her failure to hire claims to proceed to discovery, said the court, denying the defendant’s motion to dismiss in part.

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U.S. Supreme Court Refuses to Hear Home Care Case

DOL home care rule stands in wake of petition denial

By Pamela Wolf, J.D.
June 28, 2016
The Supreme Court has declined to take up a challenge to the Labor Department’s revised domestic worker regulations that extend FLSA minimum wage and overtime protections to home care workers, leaving the final rule in place. On June 27, the Court denied the petition for certiorari in Home Care Association of America v. Weil (Dkt. No. 15-683), as well as several other petitions filed in labor and employment cases.
Home care rule. In Home Care Association of America, the D.C. Circuit upheld the so-called home care rule, despite a district court’s earlier conclusion otherwise. The questions that the Justices have declined to address are whether:
  • The Court intended in Long Island Care at Home, Ltd. v. Coke to allow the DOL to deprive all third-party home care employers (who employ more than 90 percent of all home care employees) of their statutory right to avail themselves of FLSA exemptions to overtime.
  • The D.C. Circuit erred in finding that Congress intended to exclude employees of third-party employers from the home care exemptions, thereby conflicting with Coke’s contrary reading of congressional intent and creating a conflict among the circuits.
  • The DOL’s new rule should be found to be unreasonable due to the agency’s failure to meaningfully address the relevant factors of unaffordability and lack of adequate state funding of the increased costs of home health care under the new rule.
Secretary of Labor Thomas Perez quickly issued a statement applauding the High Court’s decision not to take up the case: “Today’s decision by the court not to review a challenge to the Final Rule ensures that the rule can fulfill President Obama’s vision of an economy where hard work pays off and responsibility is rewarded. That will mean greater economic stability for so many hard-working people. For everything they do for our families, they deserve—and now they will get—a fair shot at being able to take care of their own. The final rule will also mean a more stable and professional home care workforce, benefitting consumers of these services and better meeting the needs of an aging population.”
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Monday, June 27, 2016

Proposed Bill to Establish Working Conditions for Indoor Workers in California

June 18, 2016

Sacramento, CA: We should know in a little more than a year what Cal-OSHA, the Division of Occupational Safety and Health for the state of California, comes up with in terms of proposals to regulate indoor working conditions with an aim to setting standards for workers who toil indoors.

Such a standard for outdoor workers has been on the books since 2005 - and regularly revisited - in an effort to protect outdoor farm and construction workers from the often intense heat and high sun associated with toiling out in the fields or within a hot construction site. Meal breaks and rest periods, the availability of water and the provision for shaded areas have all been aimed at avoiding heat exhaustion - or worse - heat-related deaths.

Now, Senator Connie Leyva (D-Chino) wants the same kind of standards for indoor workers. Leyva claims that employers such as Amazon, which boasts a climate-controlled and managed environment within its fulfillment centers, are actually in the minority.

Sun exposure within the context of an indoor working environment is not an issue. But temperature can be - either too hot or too cold, with the potential for stale air in both situations. The San Bernardino Sun (5/7/16) reports that in a 2011 survey of workers by Warehouse Workers United, a majority of respondents claimed that excessive heat and cold were a problem, with indoor temperatures reaching as high as 125 degrees Farenheit on occasion.

Critics of the proposed bill claim that such efforts would inhibit growth in the inland logistics industry and hurt the economy. But Leyva isn’t advocating that employers install expensive climate-control systems in their facilities.

Rather, she seeks a set of standards akin to those currently protecting outside workers. The timing of rest periods - and the frequency thereof - would be governed by temperatures in the building. Access to cold water would be another requirement, together with the availability of a climate-controlled “retreat area” to which a worker could retire for a few minutes for relief from excessive heat or excessive cold.

Leyva told the San Bernardino Sun that benchmarks are needed for even so-called “good” employers who advocate for their employees, and play by the rules. “Even good employers don’t have a standard - what kind of access to water, what is the acceptable temperature?” Leyva said in comments published by the San Bernardino Sun.

“The (Division of Occupational Safety and Health) would come up with and propose a standard,” Leyva continued. “I don’t believe they would say, ‘Put in a multimillion-dollar system.’”

Leyva’s bill calls for Cal-OSHA to come up with a set of proposals by July 1 of next year.

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