Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

On March 22, 2011, the United States Supreme Court issued a 6-2 decision in the case of Kasten v. Saint-Gobain Performance Plastics Corp.  Kasten worked for Saint-Gobain and orally complained about the location of the timeclocks, which were located in the area between where Kasten and other workers put on and take off their work related protective gear, and the area where they carry out their assigned tasks.  Kasten argued that the timeclock location prevented the workers from being compensated for the time they spent donning and doffing work clothes.  In a related suit, the District Court agreed and found that the workers were not properly compensated under the FLSA for the donning and doffing.  Kasten was discharged, and he alleged that it was in retaliation for his repeated oral complaints about the location of the time clock in accordance with Saint-Gobain's internal grievance resolution procedure.  Kasten alleged that he reported the problem to his shift supervisor, an HR employee, his lead operator and the HR manager.  Saint-Gobain maintained that Kasten was terminated because, after repeated warnings, he failed to record his comings and goings on the timeclock.

The District Court granted summary judgment in favor of Saint-Gobain, concluding that the FLSA's anti-retaliation provisions did not cover oral complaints.  The Seventh Circuit Court of Appeals affirmed.  The Supreme Court, in finding that the sole question presented on on appeal is "whether an oral complaint of a violation of the Fair Labors Standards Act is protected conduct under the [Act's] anti-retaliation provision", concluded that it is.  The Court examined a number of factors to determine if  "filed" includes oral notification,  including dictionary definitions, legislative history of both the FLSA and other Acts that contain antiretaliation provisions,  administrative law history and case law.   As the Court noted, when the Act was passed, Franklin Roosevelt pointed out that  at the time, the workers who were in most need of the Act's help were those who were illiterate, less educated or overworked, and would find it difficult to reduce complaints to writing.  Both the Department of Labor and EEOC hold the view that complaints can be filed orally.  Finally, the Court noted that requiring written notice would prevent Governmental agencies (and employers) from using hotlines, interviews and other oral methods to receive complaints.

Practice pointer.  FLSA cases continue to be one of the most commonly filed lawsuits in Alabama.  As with other employment related cases, the retaliation claims that often accompany them are just as dangerous, if not more dangerous to employers then the underlying claims themselves.  Employers must take seriously and investigate both oral and written complaints concerning possible violations of the FLSA .  Those making the complaints, orally or in writing, are protected by the antiretaliation provisions of the Act.

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Last week, 2 federal district courts in Alabama released opinions addressing religious discrimination, finding in favor of the employer in both cases. What follows is a summary of both cases prepared by one of my associates, Kelli Robinson.

Johnson v. Autozone, Inc., No. CV-09-S-0786-NE (N.D. Ala. Feb. 24, 2011) (Motion for Summary Judgment).  Peter Johnson, a devout member of the Seventh-Day Adventist Church, worked full-time for AutoZone, Inc. as a Parts Sales Manager.  Due to Johnson's religious beliefs, he could never work on his Sabbath day, which spans from Friday at sundown to Saturday at sundown each week.
After failing to be promoted to store management on two separate occasions, Johnson brought a lawsuit against AutoZone for failure to accommodate his religious beliefs, religious discrimination, religious harassment, and retaliation. The court ultimately concluded that AutoZone's motion for summary judgment was due to be granted.

First, the court found that Johnson failed to establish a prima facie case of religious discrimination for failure to accommodate a religious practice or belief because Johnson could not demonstrate that he was subjected to "discipline" for not complying with an employment requirement that conflicted with his religious beliefs.  The court noted that Johnson informed each of his various supervisors of the need to observe his Sabbath, and Johnson admitted that he had never been required to work on his Sabbath, despite AutoZone's seven-day availability policy for full-time employees.  The court further found that Johnson had not suffered a pay loss due to his religious beliefs or practices.  Therefore, the court found, Johnson could not have been "disciplined" for failure to comply with a requirement to which he had not been held.

Johnson argued that only a promotion with a continued exemption from company policy would have been a reasonable accommodation, but the court disagreed - "it is clear that plaintiff is not afforded a choice regarding the manner in which he is accommodated."  AutoZone fulfilled its obligation of offering a reasonable accommodation for Johnson's religious beliefs.

Second, the court found that Johnson failed to establish a prima facie case of disparate treatment for failure to promote.  Because Johnson was unable to meet AutoZone's availability requirement, the court found that Johnson was not qualified for a promotion to a higher level management position.  Johnson also failed to demonstrate that he was qualified for further promotion because he was completely unwilling to comply with AutoZone's Store Manager rotation schedule, which required that Store Managers work Saturdays.  The court concluded that Johnson's unavailability disqualified him for the promotions he sought; and, Johnson, therefore, was unable to establish the elements of a prima facie case for disparate treatment religious discrimination on the basis of failure to promote.

Third, the court found that any incidents of harassment Johnson experienced were not actionable because they were not "sufficiently severe or pervasive to alter the condition of his employment and create an abusive working environment."  Johnson testified that he was harassed because of the lack of promotion, and because his Store Manager would make comments about how busy Saturday was and would ask Johnson to quit talking to him about his Sabbaths.  The court noted that Johnson had pointed to nothing more than isolated incidents that were infrequent and mild, that were in no way threatening or humiliating, and were, at least in part, mere acknowledgments by his supervisor of his awareness of the importance of Johnson's faith to his daily life.

Finally, the court found that Johnson failed to establish a prima facie case of retaliation, and even if the court considered the smallest action or inaction alleged against AutoZone "materially adverse," AutoZone would, nevertheless, be entitled to summary judgment.  In conclusion, the court noted that Johnson "would be well-advised to remember that neither every unkind act, nor everything that makes an employee unhappy, amounts to an actionable, adverse employment action under the federal employment discrimination statutes. Otherwise, as is clearly demonstrated by the events complained of in the present case, every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit."

Byrd v. MPW Industrial Services, Inc., No. 2:09-CV-587-WC (M.D. Ala. Feb. 24, 2011) (Motion for Summary Judgment).  MPW held a contract with Hyundai Motor Manufacturing Alabama, LLC to provide workers to perform maintenance duties at the Hyundai manufacturing facility to facilitate the work flow of Hyundai's employees.  Byrd, an African-American male, was hired by MPW to work as a Technician I.  He was scheduled to work Wednesday through Saturday between nine and thirteen hours a night.  In February 2008, Byrd was given a verbal warning regarding his tardiness.

During the time of his employment at MPW, Byrd, a Catholic, received $75 a week to play music at a church of which he was not a member.  He was also self-employed as a yardman.  As a result of his side jobs, Byrd secured permission from his Team Leader to leave work early, as long as other MPW employees were leaving their shifts early too.  When the Operations Manager for MPW learned of Byrd's early departures, he ordered him to stop.  Despite the order, Byrd went home early one day in May 2008.

The Operations Manager prepared a corrective action form for suspension and then met with Byrd to discuss the incident.  During the meeting, he informed Byrd that his schedule had been changed to Thursday through Sunday.  Byrd protested about being scheduled to work Sundays.  According to the Operations Manager, Byrd became loud and physically threatening during the meeting and called the Operations Manager "stupid."  Byrd was terminated following the meeting for insubordinate comments and threats of violence toward management.

Byrd filed a lawsuit against MPW claiming wrongful termination based on his race, failure to accommodate Byrd's religious beliefs, and retaliation.  The court ultimately concluded that MPW's motion for summary judgment was due to be granted.

The court found that Byrd failed to establish a prima facie case of disparate treatment based on his race.  Byrd claimed that during his meeting with the Operations Manager, after Byrd protested being assigned to work Sundays, the supervisor stated that Byrd was a "church little boy," and that this statement constitutes direct evidence of racial discrimination based on local custom and historical usage of the term.  The court found that Byrd made no showing of racial discrimination; even if the supervisor made the comment, the court found that the supervisor's intent may have been to disparage Byrd but no racial animus can be inferred from the statement.
 
The court further found that Byrd was unable to set forth any circumstantial evidence of racial discrimination.  Specifically, Byrd was unable to provide evidence of a valid comparator - someone outside his protected class who was treated more favorably than Byrd.  Therefore, Byrd is unable to establish a prima facie case of wrongful termination.  Even if Byrd could set forth a prima facie case, the court agreed that MPW had a legitimate, nondiscriminatory reason for terminating Byrd (insubordination), and Byrd failed to rebut the non-racial reason for his termination.

The court also found that Byrd failed to establish a prima facie case of failure to accommodate his sincerely held religious beliefs.  Byrd claimed a sincere religious belief but put forth no evidence in support.  The court noted that being "fascinated by music," and going to church does not establish a belief that missing church violates one's religion.  Further, the court found that Byrd was unable to establish that he was terminated because of any conflicting requirement: MPW terminated Byrd for insubordination, not his refusal to work on Sundays.

Finally, the court found that Byrd failed to establish a prima facie case of retaliation.  The court was unclear for which statutorily protected expression Byrd may have suffered an adverse employment action and was unable to "cobble together" Byrd's allegations from his combination of inferences and vague statements.  Because Byrd failed to provide any evidence, other than his failed attempt to establish direct evidence through the use of the terms "church little boy," in support of his claims, the court found that Byrd failed to meet his ultimate burden and, therefore, MPW was entitled to summary judgment.

Practice Pointer.  When an employee expresses concerns about conflicts between work and their religious beliefs, it is important for the employer to carefully look into the potential conflicts, and make sure that the employee is not discriminated against due to those religious beliefs.  Although both these cases were decided in favor of the employer, there are numerous cases decided by many courts around the country holding in favor of the employee. 

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This blog entry will be longer than normal for a variety of reasons.  My client has approved me blogging about this case, but has requested to remain anonymous, even though victorious.  This saga began in July, 2007, when my client, "S" decided to hire a new receptionist for its 50 person business.  "Ms. M", who was 19 at the time, applied for the job, with about 9 others.  After a review of the applications, S's front office manager, who was new to the job and making her first hire, interviewed less than 5 of the applicants.  She decided to hire Ms. M based on her work experience (including 4 jobs where she indicated that she answered the phone) and the fact that she interviewed well, including making good eye contact, speaking loudly and clearly, and appearing enthusiastic about the job.  Ms. M started work on Monday, and during orientation, S's front office manager found out that she was pregnant.  S's office manager ( who was on the job approximately 4 months and had no HR training) overheard this conversation, asked if she had heard correctly, and accused Ms. M of not being honest by not revealing her pregnancy.  Ms. M stated that she did not reveal the pregnancy during the interview because her sister had coached her not to tell anyone about it. Later that day, the office manager counseled Ms. M about having inappropriate conversations at the front desk, talking about her pregnancy, mother and boyfriend.  Ms. M underwent computer training on Monday, and also observed at the front desk to see what the receptionists were doing.  On Tuesday, Ms. M received additional computer training, and was asked to both observe and participate at the front desk: answering phones, paging, greeting customers as they walked in and entering information into the computer.  Although Ms. M admitted that the front office manager asked her to answer the phone, she only tried one time, and stopped because she didn't feel comfortable doing so. Ms. M was at the front desk again on Wednesday, but sat back and did not take the initiative to answer the phone, page or otherwise engage the customers.  At that time, the front office manager had some concerns that Ms. M would not be successful in the busy, fast paced environment and expressed concerns to the office manager and several of the owners.  The decision was made to see if she performed better on Friday (she was scheduled off on Thursday, since the job week consisted of 4 10 hour days).  Sometime during the week, Ms. M alleged that the office manager would not say "hey" to her, treated her differently than other employees, and commented in the break room on one occasion that she had no children because "children ruin your life".  On Friday, Ms. M worked with another receptionist who reported that Ms. M made one page over the intercom, answered one phone call and showed more initiative then she had previously, but still was not doing enough to learn the job.  During the course of the week, the front office manager had made detailed contemporaneous notes about the training of Ms. M, including the good and the bad.  The front office manager made the decision to recommend to one of the owners that she be fired, and the owner agreed.  The owner did not know that Ms. M was pregnant.  This was the first time the front office manager had to fire someone, so she asked the office manager to take the lead.  During the meeting, the office manager advised Ms. M that although she was good with her computer skills, she was not fast enough and did not have the interpersonal skills to be a receptionist for "S".  The office manager also made the statement, that was admitted by "S" that the job was not working out with all her stress, and her pregnancy.  The following Wednesday, Ms. M and her sister went to the EEOC to file a charge alleging pregnancy discrimination.  S received the charge in early September, and responded by sending a statement from both the office manager and the front office manager.  The office manager denied making any of the statements referring to pregnancy, while the front office manager wrote a 3 page, single spaced response, admitting that the comments were made,  outlining the training schedule and Ms. M deficiencies.  Shortly after the response was made, the office manager left her position, and it was disputed whether she was fired, quit, or if it was a mutual decision.  Fourteen months later, the EEOC requested additional information, such as names of employees, names of pregnant employees and their work status.  The information was provided within a week. 

The EEOC issued a Cause Determination, and the conciliation process began.  The EEOC initially demanded $50,000, although there was no breakdown as to back pay, front pay, compensatory damages or emotional distress.  After several rounds of negotiations, the final demand was $39,000, while "S" offered $2,500.  During the conciliation process, and before the EEOC filed its lawsuit, the Owner of "S" wrote several letters to the Regional Director begging the EEOC to meet with him and interview those individuals involved in the decision making process.  The EEOC refused.  During discovery, the regional attorney basically testified in his deposition that the EEOC was too busy to interview witnesses, even though they file less than 24 cases a year.  The EEOC filed the lawsuit on the last day of the fiscal year in 2009, with several other lawsuits alleging various other types of discrimination.  The lawsuit claimed, among other things, damages for medical expenses for Ms M having her child, job search expense and job training expenses.  At her deposition, Ms. M testified that she had no medical expenses since she was covered by Medicaid, and she had no job search expenses or job training expenses.  When asked for a breakdown of damages during his deposition, the EEOC's regional attorney could not provide a list of damages for any of the damages claimed, including back pay.  After the deposition, the EEOC filed a damage list, claiming over $50,000 in back pay.  Approximately 30 days before trial, this amount was reduced to just over $6,000.  Prior to trial, additional settlement negotiations were held, with the EEOC's final demand being $29,500 and "S's" final offer $5,000.  Even after the EEOC reduced the claim for back pay from over $50,000 to just over $6,000, it would not come down from its demand of $29,500.

The case went to trial at the end of February, and took 3 days to try.  The EEOC called as witnesses the front office manager, read the  deposition of the front office manager, the office manager, one of the owners for financial information, and Ms. M.  S called as witnesses the current front office manager, 3 receptionists who tried to train Ms. M, the owner who made the final decision to terminate Ms. M and another owner to talk about the fact that she was 39.5 weeks pregnant when she met Ms. M and offered to answer any questions she may have had. 

The 8 person jury, which consisted of  6 female jurors (4 Caucasian, 2 African American) and 2 male jurors  (1 Caucasian, 1 African American), took approximately 4 hours to return a verdict in favor of "S" and against the EEOC.

Special thanks to Robin Beardsley Mark, one of my partners, who tried this case with me. 

Practice pointers.

There are many lessons to be learned from this 4 year experience.  These lessons include:

                1.  Companies need to train their management  and staff as the various employment laws on a regular basis.

                2.  When training new employees, keep good notes.

                3.  When coaching or disciplining an employee, certain words should not be used, such as pregnancy.

                4.  When responding to the EEOC, what you say can and will be used against you.  Although there are many differing opinions amongst attorneys as to how to reply to an EEOC charge, the response must be done properly.                                         

                5.  When dealing with the EEOC when they are a party, it will be a very long, hard fought and expensive battle.

                6.  A lawsuit will cause a great deal of stress for the owners of a company and those employees who are involved as witnesses.

                7.  A great deal of time and effort, as well as money, will be spent defending  the lawsuit.

                8.  There will be publicity, especially if the EEOC wins.  In this case, the EEOC issued a press release during the trial, advising the press that the case was being tried.  My client received a call during trial from a  newspaper reporter.  Of course, the EEOC did not issue (as far as I know) a press release stating that they lost the case.  If they had won, the EEOC would have issued a press release, and there would  have been something published, at least in the newspaper. 

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