Two New Published 4th Circuit Opinions
The 4th Circuit has been active in employment cases during the past couple of weeks, issuing several published and unpublished opinions. The following are the two most recent published opinions: [1]
Update on EEOC v. Mission Hospital
In my last post, On Vaccinations, Religion and What Buddha Really Said, I briefly discussed the case of EEOC v. Mission Hospital. In that case, the EEOC alleged Mission violated Title VII when it required employees to request accommodations to the mandatory vaccination policy by Sept. 1, but allowed employees to obtain vaccinations until Dec. 1. The district court denied Mission’s motion for summary judgment, and the case was on the trial docket.
On Jan. 12, 2018, the EEOC announced it had settled the case with Mission. Mission Hospital Agrees to Pay $89,000 To Settle EEOC Religious Discrimination Lawsuit (Jan. 12, 2018). In addition to the $89,000 Mission paid to settle the claim, it also had to agree to “revise its immunization policy to permit employees to request an exemption during the same period in which flu vaccines are to be received.”
On Vaccinations, Religion and What Buddha Really Said
As flu season begins, so begin the arguments over accommodations for hospital employees whose religious (or sincerely held nontheistic) beliefs prohibit them from taking the flu vaccine. Two recent court decisions should help medical providers and employees better understand the Title VII requirements for religious accommodations and its definition of religion.
Here in North Carolina, the EEOC sued Mission Hospital after Mission terminated three employees who failed to timely request religious accommodations under Mission Hospital’s mandatory vaccination policy. The vaccination policy required accommodation requests to be submitted by Sept. 1 but employees did not have to be vaccinated until Dec. 1. EEOC v. Mission Hosp., Inc., 2017 U.S. Dist. LEXIS 124183, *6 (W.D.N.C. Aug. 17, 2017). Further, Mission gave a grace period for vaccinations but not for requesting an accommodation. Id. at *9. The court denied Mission’s summary judgment motion since it found that a jury could find that Mission violated Title VII by treating individuals seeking religious accommodations differently based on the staggered deadlines and inconsistently applied grace period.[1]
Recent Fourth Circuit Decisions
The 4th U.S. District Court of Appeals has been relatively quiet as of late, at least with respect to employment law, but there are two fairly recent decisions worth flagging. On Nov. 28, 2017, in a published decision, the Fourth Circuit affirmed the Western District’s grant of summary judgment in Penley v. McDowell County Board of Ed., No. 16-2034 (http://www.ca4.uscourts.gov/opinions/162034.P.pdf). Penley, the plaintiff below, was a teacher at McDowell County High School (“MHS”). After Penley allegedly made an inappropriate comment to his students, MHS suspended him in April 2013. MHS investigated the allegation and recommended that Penley be dismissed. Penley, in turn, brought action against MHS’ principal, superintendent, and board of education, alleging that MHS’ decisions were in retaliation for Penley’s political speech, which was his participation in political campaigns. Judge Cogburn found no credible evidence connecting Penley’s participation in political campaigns to his termination and granted summary judgment. Circuit Judges Wilkinson, Duncan, and Thacker affirmed the decision.
Gov. Cooper’s Executive Order On LGBTQ Employment Rights: An Effective Mandate For State Agencies and Contractors Or a Toothless Tiger?
On Oct. 18, 2017, Gov. Roy Cooper signed Executive Order No. 24, and he tweeted that North Carolina was taking “another step forward” in making North Carolina a more “welcoming place to all.” The EO prohibits discrimination, harassment, or retaliation on the basis of any of the following protected classes:
race, color, ethnicity, national origin, age, disability, sex, pregnancy, religion, National Guard or veteran status, sexual orientation, and gender identity or expression.
Managing Misclassification: What You Should Know About the Employee Fair Classification Act
By Rachel Hairr
The Employee Fair Classification Act (EFCA), adopted by the North Carolina General Assembly in August, goes into effect on December 31, 2017. Here’s what employers and employees need to know.
The EFCA’s Purpose
The EFCA was enacted to address the practice of misclassifying employees as “independent contractors,” an issue which gained state-wide, and later national, attention in 2014. By classifying workers as independent contractors, employers can avoid paying state and federal payroll taxes, unemployment taxes, and providing worker’s compensation insurance, which would be legally required if the worker were classified as an employee. The practice of misclassification is particularly rampant in such industries as the construction industry.
Section Members Make Great Lunch Companions
I have had the honor and privilege as Section Chair to have lunches around the state with our lively and interesting Section Members. The latest gathering was a great turnout and a fun group at Babalu in Charlotte for $2 Taco Tuesday.
If you would like to schedule a lunch, dinner or any type of networking event in your community for Section Members please let me know and I will coordinate with the NCBA so that the membership has notice. I am happy to help.
Getting to know each other is one of the best benefits of Section Membership!
Best to all,
M. Ann Anderson
[email protected]
Recent Court Opinions
A roundup of notable labor and employment law opinions from the past several weeks:
- Schilling v. Schmidt Baking Co., No. 16-2213 (4th Cir. Nov. 17, 2017): Are employees who drive assorted vehicles in a mixed fleet—a fleet with vehicles weighing more and less than 10,000 pounds—entitled to overtime? Ruling: Yes, the SAFETEA–LU Technical Corrections Act of 2008 amended the FLSA so that employees who drive “in whole or in part” motor vehicles weighing 10,000 pounds or less are entitled to overtime. Court does not decide if there is some de minimis amount of time an employee can drive a vehicle that weighs less than 10,000 pounds and still be exempt.
- Plotnick v. Computer Sciences Corp., No. 16-1606 (4th Cir. Nov. 8, 2017): ERISA case dealing with standard of review that applies to top-hat plan administrator’s benefits decisions. Ruling: No need to decide which method to use, plaintiffs lose no matter what.
- Munive v. Fairfax County Sch. Bd., No. 17-1692 (4th Cir. Nov. 7, 2017) (unpublished): Employer’s failure to remove a reprimand letter as promised, which allegedly led to plaintiff not receiving a promotion, may constitute retaliation. Ruling: Pro se’s Title VII retaliation claim should not have been dismissed.
- Freedman & Sons, Inc. v. NLRB, No. 16-2066 (4th Cir. Nov. 7, 2017) (unpublished): Court finds that NLRB’s ruling that employer discriminated against employee for engaging in protected activity and interfered with employee’s exercise of NLRA rights was supported by substantial evidence.
- Trejo v. N.C. Dep’t of State Treasurer Ret. Sys. Div., COA16-1182 (N.C. Ct. App. Nov. 7, 2017): Does the State Disability Income Plan have the right to offset benefits by the amount of hypothetical Social Security disability payments? Ruling: State law at the time said the Plan must offset the “Social Security disability benefit to which the beneficiary might be entitled,” so plaintiff loses even if she didn’t receive Social Security disability benefits.
- Randolph v. Powercomm Construction, Inc., No. 16-2370 (4th Cir. Oct. 31, 2017) (unpublished): Parties settle FLSA collective action claim for $100,000; plaintiffs had alleged damages of up to $790,000. District court awards attorney’s fees of $183,764. Defendant appeals. Ruling: District court failed to support decision to not deduct fees for work on dismissed plaintiffs’ claims from the award and improperly calculated the reduction based on the plaintiffs’ lack of success. Vacated and remanded.
- Borzilleri v. Mosby, No. 16-1751 (4th Cir. Oct. 17, 2017): Assistant State’s Attorney (ASA) supports incumbent State’s Attorney in a bruising primary battle. Incumbent loses and his opponent promptly terminates ASA upon taking office. ASA sues claiming violation of 1st Amendment. Ruling: ASAs are policymakers who are exempt from the First Amendment’s protection against patronage dismissals.
- Wray v. City of Greensboro, No. 255A16 (N.C. Aug 18, 2017): City claims sovereign immunity in lawsuit by former police chief seeking reimbursement for legal costs. City has resolution stating it will provide for the defense and indemnity for police officers sued based on their actions taken within the scope and course of their employment. Ruling: The resolution is part of the employment contract, and since sovereign immunity is not a defense in a contract claim, plaintiff can proceed with claim.
4th Circuit: Alleged Sexist Remarks Insufficient To Support Employee’s Title VII Claims
A recent Fourth Circuit decision held that alleged statements from a supervisor that included, “We don’t want women working in the morning” and “I don’t want three women on my schedule,” were not sufficient to support a plaintiff’s claims of discrimination or harassment in violation of Title VII. In the unpublished opinion issued October 10, 2017, the Fourth Circuit also stated that placing the plaintiff on a Performance Improvement Process (“PIP”) did not constitute an adverse action that could support her discrimination or retaliation claims. The panel, consisting of Judges Niemeyer, Traxler, and Keenan, affirmed the District Court’s grant of summary judgment for the employer.
Is the EEOC Trying To Require Unforeseeable Intermittent Leave As a Reasonable Accommodation Under the ADA (Again)?
The EEOC filed two lawsuits in the past couple of months that show one of two things: (1) massive companies are cruel and heartless, with HR Departments that don’t understand the ADA, or (2) the EEOC, despite its own statements in guidances and regulations, continues to believe that the ADA allows employees to take repeated, unforeseeable intermittent leave.[1]
In August, the EEOC filed a lawsuit against Macy’s, Inc., alleging Macy’s fired an employee with asthma for a one-day absence due to complications arising from her disability. EEOC Sues Macy’s For Disability Discrimination (Aug. 16, 2017). In late September, the EEOC filed a lawsuit against Whole Foods Market Group, Inc. alleging that Whole Foods terminated an employee with polycystic kidney disease after she missed work two times in December 2015, due to hospitalizations related to her kidney disease. Whole Foods Market Sued by EEOC for Disability Discrimination (Sep. 28, 2017). In both cases, the EEOC alleges that the companies violated the ADA by failing to modify their leave and absentee policies as reasonable accommodations to allow the employees to take leave related to their disabilities.