October 2008 Quick Clips

Grant of Intermittent FMLA Leave Does Not Carry Over, October 14, 2008

In an interesting case out of the Sixth Circuit, an employee who used intermittent FMLA leave in 2004 has been told she could not carry the approval over to the next calendar year, where the company used the calendar year method of leave useage. Davis v. Mich. Bell Tel. Co., No. 07-1512 (6th Cir. September 29, 2008). Upholding summary judgment for the employer the court held that the start of a new 12 month leave period permitted the company to re-evaluate the employee’s eligibility for leave, and that the company did not violate the FMLA when it fired the employee for absenteeism in early 2005.

"Once a new twelve-month FMLA period begins, any additional absences caused by that same chronic condition would constitute a new period of intermittent FMLA leave," stated the court. "Otherwise, there would be no point at which the initial period of intermittent FMLA leave ended and a new period commenced. Under that scenario, employees would never have to reestablish their eligibility for FMLA leave and would therefore be perpetually entitled to twelve weeks of FMLA leave per year based on a single eligibility determination." The court stressed that "Congress could not have intended this absurd result."

Supreme Court Employment Law Docket for 2008-09, October 13, 2008

by Darrell R. VanDeusen

Last week, the Supreme Court opened its 2008-09 term with six labor and employment law cases on its docket.

Agency Fees: On the first day of the term the Court heard Locke v. Karass (No. 07-610), which asks whether a public sector union may charge nonmembers who pay an agency fee costs for litigation incurred by the international union on behalf of bargaining units not related to the employees’ unit. The First Circuit said that a Maine union could do just that without violating nonmembers' First Amendment freedom of association rights. See 498 F.3d 49 (1st Cir. 2007)

ERISA Pensions: On October 7, the court heard argument in Kennedy v. Plan Administrator for DuPont Savings & Investment Plan (No. 07-636), which asks whether a qualified domestic relations order (QDRO) is the only valid way under ERISA for a divorcing spouse to waive the right to the other spouse's pension benefits. ERISA requires that a pension plan provide benefits may not be assigned or alienated, but states that the anti-alienation provision does not apply to a QDRO, which must specify the identity of beneficiaries, the particular plans affected, and the exact manner of calculating benefits. In this case, an employee died with a QDRO that had not been filed with the employee. The Fifth Circuit held that ERISA's anti-alienation provision, not federal common law, controls and that because the QDRO was not submitted to the plan, the wife had not given up her interest in the benefits. See 497 F.3d 426 (5th Cir. 2007).

Title VII Retaliation: As discussed in last week’s quick clip, on October 8 the court heard another retaliation case, this one involving the scope of Title VII retaliation. In Crawford v. Metro. Gov't of Nashville & Davidson County, Tenn. (No. 06-1595), the question is whether an employee interviewed in an internal EEO investigation involving other employees is protected from retaliation under either the opposition or participation clause. The Sixth Circuit held that there is no such protection. See 211 Fed. Appx. 373 (6th Cir. 2006).

Idaho Campaign Finance Law: On November 3, the Court will consider whether an Idaho statute that prohibits local government employers from allowing employee payroll deductions for political activities violates the First Amendment free speech rights of unions and their members. Ysursa v. Pocatello Education Ass'n (No. 07-869). The Ninth Circuit said that the prohibition on payroll deductions, as applied to local governments, violates the First Amendment because it is a content-based restriction for which the state has no compelling justification. See 504 F.3d 1053 (9th Cir. 2007).

Arbitration, Labor and EEO Law: On December 1, the Court will consider whether employees covered by a collective bargaining agreement providing that statutory employment discrimination claims must be pursued through the contractual grievance/arbitration procedures have a right for a court to decide their age discrimination claims. 14 Penn Plaza LLC v. Pyett (No. 07-581).

Relying on Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Second Circuit held that "a union-mandated arbitration agreement purporting to waive a covered worker's rights to a federal forum with respect to statutory rights is unenforceable." See 498 F.3d 88 (2d Cir. 2007).

Pregnancy Discrimination: On December 10, the Court will consider whether the Pregnancy Discrimination Act of 1978 (PDA) is retroactive when it decides whether an employer must give full service credit for purposes of calculating retirement benefits for pregnancy leaves taken before the PDA took effect, if the plan gave full credit for other types of temporary disability leaves. AT&T Corp. v. Hulteen (No. 07-543). The Ninth Circuit held that the PDA is not retroactive and that there is no new act of discrimination when pension benefits are calculated. See 498 F.3d 1001 (9th Cir. 2007)

Supreme Court Considers Scope of Title VII Retaliation Claims, October 10, 2008

by Darrell R. VanDeusen

Retaliation has been on the Supreme Court’s mind a lot lately. Last term the Court held that retaliation claims are available under Section 1981 and to Federal employees under the Age Discrimination in Employment Act, despite the fact that neither act specifically provides for such a claim.

Now, the Court is considering whether an employee who never complained about sex harassment, but who disclosed harassment during an internal investigation in to allegations raised by another employee, can state a claim for retaliation. Crawford v. Metro. Gov’t of Nashville, No. 06-1595 (oral argument held October 8, 2008).

At oral argument, a clear majority of the justices seemed to support extending the scope of Title VII to cover this sort of claim. Anticipating this result, the only real question is how broadly the Court will interpret the "opposition" clause. For example, if in an investigation, when questioned, Susie discloses that she was also harassed but never files any sort of complaint, is that "opposition?" It looks like the Court will say it is. But what if Susie says only that "it would be terrible if the supervisor did harass someone," is that protected opposition, such that if some materially adverse action happens to Susie three months later she can state a retaliation claim? Look for the Court’s decision later this term.

Lying to Your Employer about Absences Just Doesn’t Work, October 10, 2008

by Darrell R. VanDeusen

This is a great story. Catherine Hughes worked for the city of Bethlehem, Pennsylvania. She is diabetic. In September 2003, Hughes flew to Las Vegas to have her lips and eyebrows permanently tattooed (the court’s opinion does not explain either (1) why she thought this was a good idea or (2) why she needed to go to Las Vegas for the tattoos). Two of the days that she was in Las Vegas she called in sick to work.

When the City received an anonymous tip that Hughes was really in Vegas and not sick, they asked Hughes to explain herself. Hughes then lied, both to the City and her union, claiming that she had been home in bed and even provided a note, allegedly from her doctor, confirming her illness. The City then fired her for dishonesty. Her union refused to process her grievance.

Hughes then sued the City in federal court for sex discrimination and harassment, disability discrimination and retaliation, violation of Section 1983, and violation of the FMLA. The District Court entered summary judgment on all counts for the City. Hughes then actually appealed. The Third Circuit affirmed. Hughes v. Bethlehem, No. 07-2349, (3d Cir. October 2, 2008) (unpublished).

The appellate court found no evidence of any sort of discrimination and affirmed that the City’s termination of Hughes for dishonesty was appropriate. Makes you wonder what Hughes and her attorney were thinking.

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