Evidence of moonlighting and misuse of email system prove fatal to retaliation claim

Rudolph Escher claimed that he was terminated in retaliation for complaints he made about his employer’s designation and accounting of his military leave time, in violation of the Uniformed Services Employment and Reemployment Rights Act. As it turned out, his employer fired him for egregious misuse of its computer system through the use of that system to perform substantial work for the Naval Reserves:

Samuel Long, a human resources specialist, reviewed the e-mails and documents Escher had stored on the server. Long initially discovered more than 3,200 e-mails, from 1999-2005, in more than 240 individually named folders and subfolders. He also discovered files outside the e-mail system containing: 18 PowerPoint Presentations; 75 Word documents; 38 Excel spreadsheets; 12 PDF documents; and 140 miscellaneous documents. Long determined that Escher was working on these e-mails during work hours, and using his BWXT e-mail address as an automatic signature, which invited recipients to respond to it. Long could tell from his review that Escher was spending “an inordinate amount of time by reviewing the e-mails, by replying to the e-mails, by writing paragraph after paragraph in response to different e-mails.”

If you are going to moonlight, best not to do business through your main employer’s computer system. Needless to say, the 6th Circuit upheld the trial court’s dismissal of Escher’s USERRA lawsuit. The case is Escher v. BWXT Y-12, LLC (6th Cir. 8/18/10) [pdf].

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Handbook disclaimers

Yesterday, I noted that employees often feign ignorance of employee handbooks. Here’s a textbook example.

In Steadman v. Sterilite Corp. (Ohio Ct. App. 7/19/10) [pdf], the employer’s handbook contained the following language:

Sterilite is an “at will” employer in that your employment may be terminated with or without cause and with or without notice at any time at the option of either you or Sterilite, except as otherwise provided by law…. No statement or promise by a supervisor, manager or department head, either verbal or written, may be interpreted as a change in policy nor will it constitute an employment agreement with any employee.

Additionally, the employee signed the following acknowledgement form upon receipt of the handbook:

I understand that this handbook is not a contract of employment, express or implied, between Sterilite and me and that I should not view it as such, or a
guarantee of employment for any specific duration. 

I further understand that no manager or representative of Sterilite, other than the president, has the authority to enter into any agreement guaranteeing employment for any specific period of time. I also understand that any such agreement, if made, shall not be valid or enforceable unless it is in a formal written agreement signed by both the president and me.

Based on this language, the Court affirmed the dismissal of the employee’s claims, which were premised on the handbook constituting a contact of employment:

As a general rule in Ohio, employee handbooks do not constitute an employment contract. The handbook is simply a unilateral statement of rules and policies creating no obligations or rights…. [A]n employee handbook that expressly disclaimed any employment contract could not be characterized as an employment contract.

Reviews of disclaimers should be part of any handbook audit. They will likely make the difference between whether your handbook is a series of aphoristic aspirations and guidelines, or a policy manual that binds your conduct as a contract between your business and your employees.

On Dustin Johnson and knowing the rules: A lesson for your employees

Rule 13.4 of the USGA’s Rules of Golf provides a two stroke penalty for grounding one’s club in a hazard. Certainly Dustin Johnson knew this rule when he approached his second shot on the final hole of Sunday’s PGA Championship leading by one. What he did not know was that trampled area in which his ball rested was a bunker. The two stroke penalty he incurred when he grounded his club cost him the tournament, his first major championship, a five-year tour exemption, and the more than $1M difference between first and fifth places.

His mistake was that he did not read the tournament rules, provided to him before the tournament started and conspicuously posted in the locker room: “All areas of the course that were designed and built as sand bunkers will be played as bunkers (hazards), whether or not they have been raked. This will mean that many bunkers positioned outside of the ropes, as well some areas of bunkers inside the ropes, close to the rope line, will likely include numerous footprints, heel prints and tire tracks during the play of the Championship. Such irregularities of surface are a part of the game and no free relief will be available from these conditions.”

He did not run from his mistake. Instead, he took responsibility for not knowing the rules. From ESPN.com:

I just thought I was on a piece of dirt that the crowd had trampled down…. I never thought I was in a sand trap. It never once crossed my mind that I was in a bunker…. Obviously I know the rules of golf and I can’t ground my club in a bunker, but that was just one situation I guess. Maybe I should have looked to the rule sheet a little harder.

I cannot tell you how many depositions I’ve taken in which an employee tried to justify his or her misconduct by claiming not to have read the handbook. The common refrain: “No one reads those things.” Never mind their signatures on receipts stating that they read the handbook and had the opportunity to ask questions. Consider relaying Dustin Johnson’s story to your new employees during orientation. Maybe it will incent them to do what they should be doing in the first place—reading the handbook and asking questions.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

A real life example of the difference between the old ADA and the amended ADA

Two years after Mantych Metalworking hired Dan Wallace, he suffered a heart attack. He also had a history of back problems. Five years later, Mantych fired him, and he claimed disability discrimination. In Wallace v. Mantych Metalworking (Ohio Ct. App. 8/13/2010) [pdf] the court of appeals concluded that Wallace’s medical problems did not rise to the level of a disability worth of protection from discrimination:

Wallace presented sufficient evidence of back trouble—surgery and rehabilitation—to establish that he had a physiological condition affecting his musculoskelatal system. Also, the evidence shows that Wallace had a heart attack and heart-bypass surgery, evidence that is adequate to establish that he had heart disease. But whether these physical impairments substantially limited one of his major life activities is less clear.

The evidence of the major life activities that Wallace’s impairments affected is composed only of conclusory statements. Wallace’s affidavit states that “[a]s a result of my heart attack … I suffered from shortness of breath,” … and that he had an “impaired ability to work long hours because of shortness of breath, dizziness (standing), [and] muscle cramps (walking).” … The evidence therefore, while establishing that Wallace had physical impairments, does not establish that the physical impairments substantially limited one of Wallace’s major life activities.

This result seems reasonable. Wallace was not “disabled” because his medical conditions, while real, did not have much of an effect on his day-to-day activities. Yet, under the ADA Amendments Act, this issue would likely have a different result. Under the ADAAA, major life activities do not only include day-to-day activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, but they also include the operation of a major bodily functions, including the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Under the current iteration of the ADA, a heart attack, which affects the circulatory system and caused Wallace shortness of breath, would likely qualify as a disability.

Under the ADAAA, almost every medical condition will qualify as a disability. The focus in disability discrimination cases has shifted from whether an employee is legally “disabled” to whether they are “qualified” (whether they can perform the essential functions of the job with or without reasonable accommodation), and whether the employer reasonably accommodated the disability.

Yet, as the concurring opinion in Wallace aptly pointed out, Wallace still loses this case on the issue of whether he was a “qualified individual with a disability”:

Even if Wallace’s adverse health conditions were to constitute a disability, Wallace would also have to prove that he could safely and substantially perform the essential functions of the job in question in order to prove his disability claim against Mantych…. The hours of work an employer requires of an employee, unless otherwise limited by law or by contract, are functions of the job which are as essential to its performance as is the employee’s ability to perform the particular tasks the job involves. It is undisputed that Wallace is unable, due to his adverse health conditions, to work the number of hours per week that Mantych requires. There is no evidence that Mantych had agreed to allow Wallace to work the reduced number of hours per week to which his health condition now limits him. Therefore, Wallace cannot prove that he can substantially perform the essential functions of the job from which he was discharged, preventing a judgment against Mantych on Wallace’s claim for disability discrimination.

The result of this case may be the same under the ADA and the ADAAA, but the route to that outcome is very different. The fact that an employee such as Dan Wallace might qualify as disabled means that his employer must engage in the interactive process, determine an appropriate reasonable accommodation, and make that accommodation work. In other words, employers must be more attuned to employees’ medical conditions, because more employees will qualify for protection under the ADA. Because the ADA is partly a proactive statute, this increased coverage imposes increased responsibilities that employers ignore at their own risk.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #139 (bald is beautiful edition)

At 37, I’m pretty comfortable in my baldness. I’m not sure if it was Michael Jordan, or finding me wife, who loves me for me, bald head and all. One great thing about being bald is that I never have to pay for a haircut—it’s just me and my Gillette a couple times a week. And now, at least according to Adria Martinelli at the Delaware Employment Law Blog, my baldness may protect me under the Genetic Information Nondiscrimination Act. Finally, a discrimination law I can support 100%.

Here’s the rest of what I read this week:

Mark Hurd

• Mark Hurd, HP, Man Gene and Faux Ethics – from The Word on Employment Law with John Phillips

• Will Baggage Stop Former HP CEO, Mark Hurd from Future Employment? – from Nick Fishman at the employeescreenIQ Blog

• The Curious Case of Mark Hurd: Would you Fire a CEO Over Expenses? – from TLNT

• On HP's Mark Hurd: “Assholes Sometimes Get Their Due” – from Bob Sutton

• HP CEO resigned amidst sexual harassment allegations – from Boy Genius Report

• HP and the HR Pro: Watch the Agendas, People – from The HR Capitalist

Discrimination

• Research: Employment Discrimination Cases Often Result in Only Small Victories for Some Employees – from Dan Schwartz’s Connecticut Employment Law Blog

• Cautionary Comments as the ADA Nears Adulthood – from Michael Fox’s Jottings By An Employer's Lawyer

• “Preferences” and the ADAAA – from Workplace Prof Blog

• In Ugly Economy, Age Bias Claims Are a Tough Sell – from Law.com

• Seventh Circuit Holds Nursing Home Violated Title VII In Accommodating Resident’s “White-Only” Request – from Hunton Employment & Labor Law Perspectives™

• Do You Need to Know How Much Your Employees Weigh? – from Frank Roche’s KnowHR Blog

• Was overweight worker a victim of disability discrimination? – from Stephen Meyer’s HR Cafe

• Plain Dealer music critic lost age discrimination lawsuit – from Sindy Warren at the Warren & Hays Employment Law Blog

Litigation

• Lawsuit of the Day: Has Donald Duck Been Unfairly Accused? – from Abovethelaw.com

• When an Apology is a Discovery Response – from Katherine Gallo’s Resolving Discovery Disputes

• Can an apology help to prevent and settle employment litigation? – from David Yamada’s Minding the Workplace

• I Want to Sue the Pants off the Blankety Blank!! – from Teri Rasmussen’s Ohio Practical Business Law

Wage & Hour

• I’m Exempt: Can My Employer Deduct PTO for Doctor’s Appointments? – from Evil HR Lady

• WARNING: Outside Sales Representatives May Not Be Exempt From Overtime Pay – from Wyatt Employment Law Report

• Facts Make the Difference in Misclassification Cases – from Texas Employment Law Update

• Portrait of an Exempt Computer Employee – from Overtime Advisor

• Impact of Healthcare Reform on Business – from Rush Nigut’s Rush on Business

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

More on pregnancy as a disability

The more I think about yesterday’s post discussing Spees v. James Marine, Inc.—which held that pregnancy-related impairments that are not part of a “normal” pregnancy can qualify an an ADA impairment—the more troubled I am about the court’s decision.

The claim in Spees was a “regarded as disabled” claim. Heather Spees claimed her employer transferred her away from her welding duties because it perceived her at risk because of a history of miscarriages. Yet, the ADA states that one cannot premise a “regarded as” claim on “impairments that are transitory and minor”—that is, impairments “with an actual or expected duration of 6 months or less.” Pregnancy, by its very nature, is a transitory condition. Most pregnancy-related impairments—ectopic pregnancy, preeclampsia, miscarriage, gestational diabetes, placenta previa—only occur during a portion of the pregnancy. Moreover, in most cases, childbirth cures these impairments. In other words, by their very nature, pregnancy-related impairments are transitory, and should not be covered by ADA.

There, now I feel much better.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Pregnant = disabled, at least according to the 6th Circuit

The Americans with Disabilities Act expressly excludes pregnancy as a disability. Or at least that’s what it says, and what I’ve always believed to be true. Yesterday, the 6th Circuit decided Spees v. James Marine, Inc. [pdf], which will turn the notion of pregnancy as an ADA-protected disability on its head.

Heather Spees was a welder-trainee with JMI. Shortly after her hire, she learned she was pregnant. Her prior pregnancy ended in a miscarriage. Spees talked to her brother who was also a JMI foreman, her own foreman, and her obstetrician who originally cleared her for work without restrictions. Spees’s foreman, however, told her to revisit her doctor and get a note for light duty. He thereafter assigned her to the tool room away from her welding duties, telling her, “For right now, we don’t know what to do with you.” Apparently, Spees’s brother and foreman concluded that the risks associated with welding were too dangerous for the pregnant Spees. When another doctor later ordered Spees to full bed-rest, JMI terminated her employment for excessive absences. According to Spees, her brother told her that she “was being fired for being pregnant.”

The 6th Circuit resurrected Spees’s “regarded as” disabled claim. Although it recognized that pregancy, in and of itself, does not qualify as a disability, the court concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify an an “impairment” under the ADA:

Our first step in evaluating Spees’s ADA claim is to determine whether her prior miscarriage, or a potentially higher risk of having a future miscarriage, could constitute an impairment. Whereas no court has held that pregnancy by itself is an impairment under the ADA, many district courts have held that pregnancy-related conditions can qualify as such…. 

Pregnancy-related conditions have typically been found to be impairments where they are not part of a “normal” pregnancy…. Susceptibility to a miscarriage, moreover, has been deemed by some courts to be such a condition…. 

Although other courts have held that pregnancy complications related to miscarriages are not disabilities, the analysis in those cases did not hinge on the question of whether there was an impairment, but rather on whether the condition was sufficiently severe to substantially limit a major life activity…. There thus appears to be a general consensus that an increased risk of having a miscarriage at a minimum constitutes an impairment falling outside the range of a normal pregnancy.

The 6th Circuit appears to be breaking new ground again in the expansion of employees’ rights under federal discrimination laws. This case ups the ante for employers dealing with pregnant employees. Now, more than ever, employers should adopt, as best as possible, a “see no evil, hear no evil” approach in dealing with those who are pregnant to avoid any knowledge of pregnancy-related complications or conditions.