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Public Employee's Discharge without Pre-Termination Hearing Violates Due Process
by Ami J. Patel*
The United States Court of Appeals for the Ninth Circuit ("Ninth
Circuit") recently held that a public employee was not entitled to leave
under the Family Medical Leave Act ("FMLA") based on a request made
prior to reinstatement.
Walls v. Central Contra Costa Transit Authority,
2010 U.S. Dist. LEXIS 40596 (N.D. Cal., Apr. 26, 2010). Instead, the
Court held the employee possessed a protected property interest in his
continued employment. In doing so, the Ninth Circuit reversed in part
the trial court's summary judgment ruling.
Kerry Walls ("Walls") worked as a bus driver for the Central
Contra Costa Transit Authority ("CCCTA") until his termination on
January 26, 2006. Walls filed a grievance based on his termination with
his union. Following the grievance process, CCCTA reinstated Walls
subject to a Last Chance Agreement. When Walls violated the attendance
requirement of his Last Chance Agreement, CCCTA terminated his
employment again on March 6, 2006. Walls subsequently claimed his
discharge violated the FMLA and his due process right to a
pre-termination hearing under the U.S. and California Constitutions. The
trial court initially granted summary judgment to CCCTA on all of
Walls' claims; however, the Ninth Circuit reversed the trial court's
ruling on Walls' due process claim.
In line with the trial court, the Ninth Circuit held that Walls'
discharge on March 6th did not violate the FMLA. Walls argued that his
discharge, which was based on his absence on March 3rd, interfered with
his FMLA rights because he made a verbal request for leave during a
meeting on March 1st. The parties agreed that Walls had not been
reinstated to his position until March 2nd – when he signed and executed
the Last Chance Agreement. Therefore, CCCTA had not reinstated him when
he made his request for leave on March 1st. The trial court held (and
the Ninth Circuit agreed) that because Walls was not an "employee" under
the FMLA when he made his request for leave he was not protected by the
FMLA.
The Ninth Circuit reversed the trial court's decision regarding
Walls' due process rights. As a public employee, under California law,
CCCTA could dismiss Walls for cause only because he possessed a property
interest in his continued employment. As a preliminary matter, the
Ninth Circuit first had to determine whether Walls' Last Chance
Agreement modified or somehow altered this property interest. The Ninth
Circuit, however, determined that the language contained within the Last
Chance Agreement was not strong enough to demonstrate Walls had
knowingly or voluntarily waived his due process rights.
The Ninth Circuit then examined whether Walls received both pre-
and post-employment safeguards. The court found that CCCTA denied Walls
due process because he did not have an opportunity to respond prior to
his termination. Further, even though the Last Chance Agreement stated
that Walls could not participate in the post-termination procedures of
arbitration or file a grievance, it did not include a waiver of Walls'
right to pre-termination procedures. Because Walls did not receive a
pre-termination hearing, the Court held that CCCTA denied him due
process under both the California and Federal Constitutions. The Court
sent the case back to the trial court to determine the appropriate
remedy for the denial of due process.
This decision reinforces the need for public employers to closely
follow pre- and post-employment procedures. Failure to do so could
result in costly litigation as it did here.
*Ami J. Patel practices in all areas of
labor and employment law, with a focus on private and public sector
labor law. For more information on this case or any other labor or
employment issue, contact Ami at 216.696.4441 or ajp@zrlaw.com.
Job Applicants Are Not Protected Under the Fair Labor Standards Act's Anti-Retaliation Provision
by Michele L. Jakubs*
The United States Court of Appeals for the Fourth Circuit ("Fourth
Circuit") held that the Fair Labor Standard Act's ("FLSA")
anti-retaliation provision does not protect prospective employees.
Dellinger v. Sci. Applications Int'l Corp.,
No. 10-1499, 2011 U.S. App. LEXIS 16635 (4th Cir. Aug. 12, 2011). In
this case, Natalie Dellinger ("Dellinger"), a job applicant, brought
suit against Science Applications when it decided not to hire her
shortly after learning she recently filed an FLSA action against her
previous employer. The Fourth Circuit, agreeing with the district court,
concluded that Dellinger was not an "employee" of Science Applications
as defined by the FLSA and that the FLSA's anti-retaliation provision
did not cover prospective employees or job applicants.
Dellinger sued her former employer, CACI, Inc., in July 2009 for
alleged violations of the FLSA's minimum wage and overtime provisions.
Around this same time period, Dellinger applied for a position with
Science Applications. Science Applications offered Dellinger a job in
late August 2009. The job offer was contingent upon Dellinger passing a
drug test, completing specified forms, and verifying and transferring
her security clearance. Dellinger accepted the offer and began
satisfying the provisions of her offer.
On her security clearance form, Dellinger was required to list any
pending noncriminal court actions to which she was a party. Dellinger
listed her FLSA lawsuit against CACI, Inc. Several days after Dellinger
submitted her security clearance form, Science Applications withdrew its
offer of employment. Dellinger then brought an FLSA action against
Science Applications claiming that Science Applications violated the
FLSA's anti-retaliation provision by refusing to hire her after it
learned she had sued her former employer.
Science Applications filed a motion to dismiss Dellinger's
complaint, contending that Dellinger did not state a claim for which
relief could be granted because the FLSA's anti-retaliation provision
protects only employees, not prospective employees or applicants. The
district court granted Science Applications' motion to dismiss, and
Dellinger appealed to the Fourth Circuit.
The Fourth Circuit upheld the district court's ruling. In doing
so, the Fourth Circuit took a plain-meaning approach in examining the
text of the FLSA. The FLSA prohibits retaliation "against any employee
because such employee has filed any complaint or instituted or caused to
be instituted any proceeding under or related to this chapter." 29
U.S.C. § 215 (a)(3).
The Fourth Circuit first answered the threshold question of
whether an applicant for employment is an "employee" authorized to sue
and obtain relief for retaliation under the FLSA as Dellinger had not
sued her employer, but rather her
prospective employer. While
Section 215(a)(3) prohibits retaliation "against any employee" the FLSA
defines employee as "any individual employed by an employer" under the
FLSA. The Fourth Circuit determined that Congress was referring to the
employer-employee relationship in providing protection to those in an
employment relationship with their
employer. The Fourth Circuit
also reasoned that because Dellinger was an applicant for employment
with Science Applications and her application had been approved only on a
contingent basis, she never began work. The FLSA defines "employ" as to
"suffer or permit to work." The Fourth Circuit, therefore, concluded
that an applicant who never began or performed any work could not, by
the language of the FLSA, be an "employee."
The Fourth Circuit also distinguished the FLSA from other
statutes, including the National Labor Relations Act and the
Occupational Safety and Health Act, noting the definition of "employee"
under those statutes and enabling regulations is broader than its
definition under the FLSA. As a result, the Fourth Circuit held that the
FLSA allows private civil actions
only by employees against
employers and that 29 U.S.C. § 215(a)(3) does not authorize prospective
employers to bring retaliation claims against prospective employers.
The Fourth Circuit's decision significantly curbs the ability of
job applicants to bring any type of FLSA action against prospective
employers. Employers should rest a little easier knowing that the FLSA –
on its face – provides no protection to individuals who have never
actually worked for the employer.
*Michele L. Jakubs, an OSBA Certified
Specialist in Labor and Employment law, practices in all areas of
employment litigation and has extensive experience counseling employers
on the FLSA. For more information on this decision or any other FLSA
compliance question, please contact Michele at mlj@zrlaw.com or 216.696.4441.
An Employee's Failure to Comply with a Condition of Employment is a Just Cause Discharge for Unemployment Compensation Purposes
by Stefanie L. Baker
The Ohio Supreme Court recently held that a discharged employee
was ineligible to receive unemployment benefits when her employer
discharged her for failing to obtain a professional license required as a
condition of continued employment.
Williams v. Ohio Dep't of Job & Family Services, Slip. Op. 2011-Ohio-2897 (June 22, 2011).
Bridgeway, Inc. ("Bridgeway") is a community mental health center
that provides a variety of services to the mentally ill, including
housing services, employment services, and counseling. Bridgeway hired
Mary Williams ("Williams") as a full-time residential social worker.
After working for Bridgeway for three months, Bridgeway offered Williams
a promotion to residential services program manager. Bridgeway
conditioned the promotion on Williams obtaining certification as a
Licensed Independent Social Worker ("LISW") within 15 months. When
Williams accepted the promotion, she signed a letter which included a
statement that her failure to complete the LISW certification by May
2008 "w[ould] make [her] ineligible to keep this position."
Williams scheduled her LISW certification test for April 2008.
However, due to health concerns, she rescheduled her test receiving
Bridgeway's consent to extend the 15-month deadline. When Williams
finally took the exam, she failed. After a failed exam, the exam cannot
be retaken for 90 days. As such, Bridgeway terminated Williams
employment for failing to obtain her LISW certification within the
allotted time.
Williams then applied for unemployment compensation with the Ohio
Department of Job & Family Services. The agency denied Williams
benefits after it determined she had been discharged for just cause.
Several appeals followed and the Unemployment Review Commission ("URC")
conducted a hearing. During the hearing before the URC, Williams argued
that two other residential program managers did not have the LISW
certification. However, the URC affirmed that Bridgeway discharged
Williams for just cause. The URC noted that the other residential
program managers had been with Bridgeway for a much longer period and
that it was not uncommon for an employer to increase the educational
pre-requisites for a position.
Williams appealed to Ohio's Eighth District Court of Appeals. The
Eighth District Court of Appeals reversed the URC holding. Relying on
Shaffer v. Am. Sickle Cell Anemia Ass'n.,
No. 50127, 1986 Ohio App. LEXIS 7116 (Cuyahoga Ct. App. June 12, 1986),
the Eighth District Court of Appeals held that Bridgeway did not fairly
apply its LISW certification requirement.
The Ohio Supreme Court accepted Bridgeway's appeal to decide
"whether an employee who fails to obtain a license or certification that
was a condition of employment, as verified by the letter of appointment
signed by the employee at the time of hire, is discharged in connection
with work within the meaning of Ohio Revised Code § 4141.29(D)(2)(a)."
The Ohio Supreme Court unanimously reversed the Eighth District Court of
Appeals. In doing so, the Court emphasized that Williams accepted the
promotion knowing that the LISW certification was required. Moreover,
Williams also controlled the timing of her certification exam and chose
to wait until nearly the end of her 15-month period before taking it. As
for the other two program managers who were not LISW-certified, the
Court found that they were considerably more experienced and hired
several years before Williams; thus, Williams was not "similarly
situated" to them.
Ohio employers should take notice that an employee's failure to
comply with a condition of employment will likely render him or her
ineligible for unemployment compensation benefits.
Court Awards Liquidated Damages Under the Family & Medical Leave Act Despite Prior Arbitration Award
by Patrick M. Watts
The U.S. District Court for the Southern District of Ohio
recently held that a former employee may be entitled to liquidated
damages and attorneys' fees under the Family & Medical Leave Act
("FMLA") despite already receiving reinstatement and back pay damages
through his union arbitration process.
Poling v. Core Molding Technologies, No. 10-cv-963 (S.D. Ohio June 22, 2011).
Terry Poling ("Poling") began working for Core Molding
Technologies ("Core") in 2006. While working at Core, Poling was a
member of the International Association of Machinists and Aerospace
Workers, AFL-CIO District Lodge 34, Local Lodge 1471 (the "Union"). As a
member of the Union, Poling was subject to a collective bargaining
agreement ("CBA"). The CBA included an employee attendance provision
which provided a set amount of unpaid days off for unexcused absences
and tardiness. If the employee exhausts this set amount of unpaid days
off, additional absences result in termination.
Poling had a history of Reflex Sympathetic Dystrophy Syndrome
("RSDS") that required regular treatment. He asked that some of his
absences be covered under the FMLA. Core approved and certified Poling's
FMLA request.
In September, 2008, Poling missed a period of mandatory overtime.
Having exhausted his unpaid days off, as provided under the CBA, Poling
submitted evidence that his absence was due to his RSDS. However, after
reviewing the evidence, Core determined that his absence was not
covered by the FMLA because the evidence did not address why he was
unable to work that particular day. Given Core's determination that
Poling's absence was not covered by the FMLA and that he had exhausted
his unpaid days off, Core terminated Poling's employment.
Poling filed a grievance with the Union based on his discharge.
In his grievance, Poling argued that Core did not have "just cause" for
terminating his employment. The arbitrator agreed with Poling and
ordered reinstatement and a monetary award which covered back pay,
benefits, and lost opportunities for overtime. Poling returned to his
position until April, 2010 when Core moved his position to Mexico.
After his termination, Poling filed suit against Core alleging
that Core violated his rights under the FMLA. If an employer violates
the FMLA, an employee is entitled to "any wages, salary, employment
benefits, or other compensation denied or lost" as a result of the
violation, in addition to liquidated damages. Core filed a motion for
summary judgment arguing that Poling's claims for compensatory damages
(lost wages, benefits, etc.) equitable relief, liquidated damages, and
court costs were void and foreclosed by that fact that Poling recovered
all lost wages and benefits in his earlier arbitration process. The
Court granted in part and denied in part Core's motion for summary
judgment.
The Court granted Core's motion for summary judgment with respect
to compensatory damages. Poling conceded that Core had paid all back
wages owed to him. The Court determined Poling failed to raise a genuine
issue of material fact concerning his back pay. As a result, the Court
granted Core's motion for summary judgment regarding compensatory
damages.
The Court, however, denied Core's motion for summary judgment on
the liquidated damages issue. Poling claimed he was entitled to
liquidated damages. Under the FMLA, a plaintiff is entitled to
liquidated damages in an amount equal to his or her lost compensation
award plus interest (unless the employer can show it acted in good
faith). In denying Core's motion for summary judgment on the liquidated
damages issue, the Court relied on the United States Court of Appeals
for the Tenth Circuit's decision in
Jordan v. U.S. Postal Service, 379 F.3d 1196 (10th Cir. 2004).
The
Jordan court found that compensation that is
"unlawfully denied but restored before trial, but after a significant
delay" could be considered "denied or lost wages under the FMLA" for the
purposes of calculating damages.
Id. at 1201 (internal quotation marks omitted). The
Jordan
court was also motivated by the fact that an unlawful deprivation of
wages for a significant amount of time can result in "damages too
obscure and difficult of proof [sic] for estimate other than by
liquidated damages."
Id. Poling argued that Core unlawfully
kept him from working and receiving compensation for fourteen months.
The Court agreed determining that Poling was not foreclosed from seeking
liquidated damages. The Court also based its decision on the strong
presumption in favor of awarding liquidated damages to affected
employees in FMLA and Fair Labor Standards Act cases.
As this case demonstrates, it is important for all employers to
conduct thorough analyses when employees seek FMLA protection so as to
limit their potential exposure to FMLA litigation and damages.
How Much Will the Dukes v. Wal-Mart Decision Impact Wage and Hour Litigation?
by Stephen S. Zashin*
The United States Supreme Court recently rejected an attempt by
Wal-Mart employees to pursue a nationwide class action on behalf of all
female employees. The lawsuit was based on generic accusations that
Wal-Mart maintained a company-wide policy of sex discrimination.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011).
To bring any type of class action, a plaintiff must prove
"commonality" -- that there is some common issue of law or fact in
common among all of the members of the proposed class. In the Dukes
decision, the Supreme Court held that for the female plaintiffs to
pursue a class action on behalf of employees based upon a supposedly
discriminatory company policy, they must establish something in common
more than merely "their sex and this lawsuit." Instead, they must offer
"significant proof" of a "specific" employment practice that affected
everyone in the proposed class and led to sex-based discrimination. In
other words, there must be "some glue holding the alleged reasons for
all those [nationwide employment] decisions together."
Dukes makes it clear that employees who wish to join together and
pursue a class action cannot rely only on extrapolations from
statistics, collections of anecdotal evidence, or expert testimony about
corporate "culture" to meet Federal Rule of Civil Procedure 23's ("Rule
23") "commonality" requirement. Instead, they most point to a
concrete, specific, and identifiable employment policy or practice that
truly affected every employee and that gave rise to the discrimination
in question. Plaintiffs must prove that they have something else in
common apart from their protected status and their desire to sue a
common employer.
Not only does the Dukes decision impact sex discrimination cases,
it also impacts wage and hour litigation. The standards to bring a
class, or collective action under the Fair Labor Standards Act ("FLSA"),
are related but different to class action requirements under Rule 23.
Under a Rule 23 class action, class members must meet a "commonality"
requirement. Under a FLSA collective action, class members must be
"similarly situated" to receive conditional certification. Since the
FLSA's inception, courts have struggled to define "similarly situated,"
because the phrase is not defined within the FLSA. However, many courts
have looked to interpretations of Rule 23's "commonality" requirement
for guidance, which makes the Dukes' discussion of "commonality"
extremely important to wage and hour litigation.
The Dukes decision is barely three months old, but several courts
around the country have already found themselves grappling with the
decision's impact on wage and hour actions. A sampling of cases dealing
with issues presented by Dukes includes the following:
Case Name
|
Argument made based on Dukes
|
Outcome
|
| Bouaphakeo, et al. v. Tyson Foods, Inc., No. 5:07-cv-04009-JAJ, 2011 U.S. Dist. LEXIS 95814 (N.D. Iowa Aug. 25, 2011). |
Defendant argued for decertification of the
plaintiffs’ Rule 23 class action because a single purported common
question of law was not enough to bind class together (court had
previously certified class on a single common question of law). |
Motion for decertification of class denied |
| Spellman, et al. v. American Eagle Express, Inc., 2011 U.S. Dist. LEXIS 53521 (E.D. Pa. May 18, 2011), motion for reconsideration denied by Order dated July 21, 2011. |
Defendant argued conditional certification of an FLSA collective action was inappropriate in light of Dukes. |
Motion for Reconsideration denied (However, court noted that during the second step of the collective action process, Dukes’ analysis of what constitutes a common question would be persuasive to whether the FLSA action should be certified) |
| MacGregor, et al. v. Farmers International Exchange, No. 2:10-cv-03088, 2011 U.S. Dist. LEXIS 80361 (D.S.C. July 22, 2011). |
Court found that plaintiffs’ allegations
were not rooted in a common policy that itself was unlawful, but
rather in the enforcement decisions of individual supervisors, which, if
true, contradicted company policy. |
Court denied conditional certification of FLSA collective action |
| Cruz v. Dollar Tree Stores, No. 3:07-04012-SC, 2011 U.S. Dist. LEXIS 73938 (N.D. Cal. July 8, 2011). |
Court originally certified class of former
store managers who claimed they were misclassified under the FLSA in
2009. Based upon Dukes, Court decertified finding that
letting the case proceed would entail “unmanageable difficulties” in
determining whether particular employees spent the majority of their
time performing managerial duties; court stated that plaintiffs failed
to provide common proof to serve as “glue” that would allow a
class-wide determination. |
Court decertified class of former store
managers because the necessary individual inquiry into each class
member’s claims could result in a series of “mini trials” that
undermine the efficiency class and collective treatment is meant to
provide. |
| Ramos, et al., v. SimplexGrinnell et al., No. 1:07-cv-00981-SMG, 2011 U.S. Dist. LEXIS 65593 (E.D.N.Y. June 21, 2011). |
Relying on Dukes, judge upheld class
certification for about 600 workers who alleged that the Tyco fire
and safety equipment unit violated New York labor law and that they
were underpaid. |
Granted plaintiff’s motion for class certification |
| Creely v. HCR ManorCare, Inc. et al., No. 3:09-cv-02879-JZ, 2011 U.S. Dist. LEXIS 77170 (N.D. Ohio July 1, 2011). |
Defendants filed a motion to file supplemental briefing based upon Dukes. Judge Zouhary wrote in his order: “This Court concludes the concerns expressed in Dukes simply do not exist here.” |
Upheld class certification |
| Jasper v. C.R. England et al., No. 2:08-cv-05266-GW-CW, 2009 U.S. Dist. LEXIS 34802 (C.D. Cal. Mar. 30, 2009), motion to vacate Order denied (C.D. Cal. June 30, 2011). |
Defendants filed an application to vacate
the order on the motion to certify class action and to order
re-briefing in light of Dukes. |
The court denied defendant’s motion to decertify a class of up to 1,000 truck drivers |
| Ellis v. Costco Wholesale Corp., No. 07-15838, 2011 U.S. App. LEXIS 19060 (9th Cir. Sept. 16, 2011). |
In 2007, the district court certified a
class of current and former female employees who claimed Costco denied
them promotion based upon their sex. Costco filed a motion to vacate
the class certification. The 9th circuit remanded the case for the
district court to consider whether the claims for various forms of
monetary relief will require individual determinations and are
therefore only appropriate for a Rule 23(b)(3) class. The 9th circuit
also held the district court failed to conduct a vigorous analysis of
“commonality” and “typicality” requirements under Rule 23. Thus, the
court vacated the district court’s certification of the class under
Rule 23(b)(2). |
Affirmed in part, vacated in part and remanded to district court |
In light of the number of cases that have already relied upon
Dukes, it is clear that the decision has and will continue to have major
ramifications on wage and hour litigation. Dukes requires courts to
pay attention to the disparities that exist in collective action cases
(e.g., differences in supervisors, departments, facilities, divisions
and regions). The "dissimilarities," not the common questions raised,
have the most potential to determine whether class-wide resolution of a
matter is permissible. Dukes should lead courts to narrowly interpret
the "similarly situated" requirement under the FLSA.
The extent to which Dukes will impact collective actions is
unclear. Some predict Dukes will have more of an impact in other
nationwide discrimination class actions including pending cases against
Toshiba Corp., Goldman Sachs Group, Inc., Cigna Corp. and Bayer. Dukes
also played a major role in the Ninth Circuit's recent ruling in a
Costco disparate impact case (discussed above). Nevertheless, it is
clear that Dukes alters the landscape of class or collective actions in
dramatic ways.
While Dukes is an employer-friendly decision, the best defense to
class discrimination claims and collective wage and hour claims are
strong company policies prohibiting discrimination and wage and hour
violations and vigilant compliance efforts.
*Stephen S. Zashin, an OSBA Certified
Specialist in Labor & Employment law, has extensive experience
defending class and collective actions. Stephen represents employers in
all aspects of labor & employment. For more information on class
or collective litigation, please contact Stephen at ssz@zrlaw.com or 216.696.4441.
Z&R Shorts
UPCOMING SEMINARS
48th Annual Midwest Labor and Employment Law Seminar
October 13-14, 2011
Hilton, Easton Town Center, Columbus, Ohio
Stephen Zashin will co-present "Emerging FMLA Case Law: Effective Employee Notice and Avoiding Employer Interference" and
George Crisci will present "SERB and Public Sector Issues." To register go to www.ohiobar.org.
Temple Emanu El non-partisan State Issues Program
October 27, 2011 – 8 PM
4545 Brainard Road (at Emery), Orange Village, Ohio 44022
Jon Dileno will explain and present opposing views regarding Issue 2 (Senate Bill 5), as well as other current Ohio voter issues.
Bucking the Trends and Curving the Costs, How to Stay on top in Today's Health Care Market
November 1, 2011 – 8:30 AM
The Bertram Inn, Aurora, Ohio
Patrick Hoban will present an update on PPACA developments. To register contact Shawna Altman at 440.893.9882 x6.
Congratulations to George Crisci!
George S. Crisci has been appointed to a three-year term as the
Management Co-Chair of the American Bar Association's Labor &
Employment Law Section Committee on State and Local Government
Bargaining and Employment Law. George was also named one of the "Best
Lawyers in America" for 2012.
EEOC Claims on the Rise
After dropping slightly in 2009, claims filed with the Equal
Employment Opportunity Commission ("EEOC") hit record highs in 2010. The EEOC received 99,922 complaints in 2010, up over 6,000 from the
previous year. The most common complaints were for retaliation and race
discrimination. All indications point to the EEOC receiving more than
100,000 complaints in 2011. As the economy continues to struggle and
complaints continue to rise, employers must remain vigilant in
understanding and complying with employment laws.
