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

The 11th Circuit recently issued 2 opinions in favor of employers in the last week.  One dealt with gender discrimination, and the other with age discrimination.  Special thanks to one of Sirote's associates, Franklin Corley, for the summaries below. 

11^th Circuit Upholds Termination of Female Driver. In Barnette v. Federal Express Corp., 2012 WL 4775029 (11^th Cir. 2012), Nancy Barnette was employed by Federal Express, Corp. as a delivery driver. After several accidents, Barnette was issued a letter which indicated that she could be terminated if she was involved in another accident. Several months later, Barnette was involved in another accident. Barnette failed to report the accident in accordance with FedEx policy and lied to her superiors about the events surrounding the accident. FedEx terminated her employment for violating company policy.

Barnette sued FedEx for gender discrimination under Title VII, claiming that she was fired because she is a female. FedEx claimed that she was fired because she violated the company conduct policy.

When a gender discrimination claim is based on circumstantial evidence, the plaintiff must first show that: (1) she is a member of a protected class; (2) she was qualified for the position that she held; (3) she suffered an adverse employment action; and (4) she was treated less favorably than a similarly situated individual outside her protected class. Then, the burden shifts to the employer to show that there was a legitimate, nondiscriminatory reason for the employment decision. Where an employer makes such a showing, the plaintiff can only prevail by proving that the reason is actually pretextual.

Barnette’s gender discrimination claim was centered on her contention that several male drivers had been involved in similar accidents but were not terminated. For this claim to be relevant, Barnette had to identify comparators – similarly situated male drivers who had been involved in or accused of similar conduct, but were disciplined in different ways. In other words, Barnette needed to identify male drivers who failed to report an accident, lied about the events surrounding the accident, but were not terminated. Barnette could not identify any such individuals. The Court upheld FedEx’s decision to terminate Barnette based on her failure to comply with company policy following her accident.

11^th Circuit Finds RIF Trumps ADEA in Termination. In Proe v. Facts Services, Inc., 2012 WL 4711588 (11th Cir. 2012), 59 year old David Proe was terminated from his employment with Facts Services, Incorporated and Ebix, Incorporated. Proe’s employers then hired a substantially younger employee, in a position for which Proe was also qualified, because they considered the younger employee to be a better fit for the position. In response to his termination, Proe filed a lawsuit under the Age Discrimination in Employment Act. The ADEA makes it illegal for an employer to discriminate against an employee who is at least 40 years of age.

An employee may prove an employer’s discriminatory intent through either direct or indirect evidence. Proe’s age discrimination claim was based on circumstantial evidence. In such cases, the plaintiff can make out an initial case of age discrimination by showing that: (1) he was a member of the protected group of persons between the ages of 40 and 70; (2) he was subjected to an adverse employment action; (3) he was qualified for the position; and (4) the position was awarded to a younger individual.

The employer can rebut the employee’s initial claim of age discrimination by showing a legitimate, nondiscriminatory reason for the adverse employment action. The employee then has the opportunity to present evidence which shows that the employer’s reasons were pretextual. Lastly, in order to prevail under the ADEA, a plaintiff must prove that age was the “but for” cause of the challenged adverse employment action.

The company argued that it terminated Proe during a reduction-in-force. In addition, Proe’s employers claimed that Proe was not rehired because the younger individual was a better fit for the position. Proe argued that his employers’ reasons were pretextual and that he was actually more qualified for the position than the younger individual.  When a plaintiff attempts to show pretext by arguing that he was more qualified than another individual, he must show that no reasonable person would have selected the other candidate over the plaintiff.   

In denying Proe's claims, the Court determined that Proe's employers presented legitimate, non-discriminatory reason for Proe's termination. The Eleventh Circuit found that a reduction-in-force is a legitimate, nondiscriminatory reason for terminating an employee.  Thus, Proe's claim was denied because he could not prove that age was the "but for" cause of his termination. 

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Sexting at Mountain Brook High School.  Yesterday, Al.com reported that the Mountain Brook, Alabama police are investigating multiple complaints into "sexting" at Mountain Brook High School.  Carol Robinson reported that MB police were advised by school officials that they had "developed issues with sexting".  MB police stated that the investigation involves juveniles.  Sexting is sending sexually explicit messages or photographs, usually between cell phones.  If charged and convicted, individuals who sext photographs of minors may be guilty of production and/or possession of child pornography, which can result in being required to register as a sex offender. 

Practice pointer.  I have had the opportunity to speak to college students in the past, and next month I will be speaking to high school students on behalf of Girls Inc. concerning the dangers of the internet/social media.  Sexting is one of the topics I cover:  most of us have done some stupid things in our lives, but when I was growing up and in college, there were no cell phones and no internet.  Now, a stupid stunt can get someone arrested, and if it involves sexting, especially with a minor, can result in being branded a sex offender for the rest of ones life.  For those readers in north Alabama, I will be speaking on social media on behalf of Sterling Education Services on November 8 in Huntsville.  If you are interested in attending, you can register here.

New Child Labor Law Poster Required in Alabama.  Effective October, 2012, the Alabama Department of Labor has mandated a change in the Child Labor poster, updating recordkeeping requirements for employers and changing an address and phone number.  New posters should be in place by month's end. 

Growing Businesses and Employment Laws.  An informative article appeared in the Journal of South Mississippi Business that serves as a reminder for growing businesses to comply with federal employment laws.   The article notes that as a business grows, different laws apply.  Title VII of the 1964 Civil Rights Act and the Americans With Disabilities Act apply when the number of employees on the payroll reaches 15, the Age Discrimination in Employment Act applies at 20, the Family Medical Leave Act at 50 and the requirement to file an EEO-1 report kicks in at 100. 

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HB 56/Alabama's Immigration Law.  I don't want to sound like a broken record, but....Sunday April 1 is the day HB 56 requires all employers in Alabama to use E-Verify for new employees.  This is in addition to the use of I-9's.  Employers that knowingly hire or continue to employ unauthorized aliens are subject to harsh penalties, including the suspension or revocation of business licenses.

ADEA.  The EEOC has issued it's Final Rule on Reasonable Factors Other Than Age under the ADEA.  According to the EEOC press release, "The final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age."  The Final Rule will be important for companies defending ADEA claims when the defense is that the decision made in regard to an individual over 40 was not predicated on age, but rather a reasonable business decision.

Social Media.  I hate auto-correct on my Blackberry, as do many users of Iphones, Droids, etc.  Recently, WSBTV in Atlanta reported that the West Hall High School and West Hall Middle School were put on lock down after  a student sent a text message that read "gunman to be at west hall."  The message was supposed to be "gunna be at west hall", but the auto-correct feature changed the message.  The student sending the message was not charged after police discovered what happened. 

FMLA.  The United States Supreme Court, in a 5-4 decision, found that states are not subject to the self-care provisions of the FMLA.  In 2003, the Court found that states could be sued for damages for violations of the family care provisions of the FMLA, since the family leave policies in place with states either discriminated on the basis of sex or were administered in a way that discriminated on the basis of sex.  Under the self-care provisions of the FMLA, there were no policies that discriminated on the basis of sex, or were administered in a way that discriminated on the basis of sex.  Thus states are immune from damages under the Fourteenth Amendment. 

GINA.  Effective April 3, 2012, the EEOC has new record keeping requirements under the Genetic Information Nondiscrimination Act of 2008.  GINA applies to employers with 15 or more employees, employment agencies, labor unions and federal sector employers.  The new rule requires all employment and personnel records to be kept in the same manner as required under Title VII and ADA.  Records containing medical or genetic information should be segregated from other personnel records and access limited to those with a business need to see them. 

Spelling out numbers.  Oftentimes, lawyers are criticized for all the legalize that appears in documents.  One of the areas of 'legalize' is the fact that lawyers almost always spell out numbers.  Every now and then, a lawsuit demonstrates why this is done.  Michael Fox  blogged last week about a lawsuit that went to trial in London.  The suit is focused on whether a currency trader was to be paid 2.4 million rand or 24 million rand, a difference of $980,000.  JPMorgan is arguing that it was a typographical error in the numbers.  The numbers were not spelled out. 

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Recently, the 11th Circuit issued an opinion addressing the Alabama Age Discrimination In Employment Act (AADEA) in the case of Ehrhardt v. Haddad Restaurant Group.  Ehrhardt, a General Manager, was demoted due to poor sales and profits at the restaurant and his poor management of employees.  Ehrhardt challenged and rebutted the latter, and the court found that there was little evidence indicating that he had problems with staff.  The Court found that the restaurant did not discriminate against Ehrhardt by demoting him from General Manager to Beverage Director based on declining sales.  Ehrhardt was subsequently terminated as Beverage Director since the restaurant, based on an economic decision, decided there was no reason to continue to employ and pay commissions to a Beverage Director in a restaurant that was losing money. 

Under the AADEA, "no employer...shall discriminate against a worker 40 years of age and over in hiring, job retention, compensation, or other terms or conditions of employment".  The analytical framework of the AADEA is the same as the federal Age Discrimination In Employment Act.  The Court examined this case pursuant to the Supreme Court's Gross decision, holding that in order to establish a disparate treatment claim under the ADEA, "a plaintiff must prove by a preponderance of the evidence...that age was the "but-for" cause of the challenged employer decision".  Although the Gross decision did not answer the question of whether the evidentiary framework of the McDonnell Douglas case is appropriate in the ADEA context, the 11th Circuit used both the Gross decision and the McDonnell Douglass decision to review Ehrhardt's claim.  Under McDonnell Douglas, there is a three prong test to analyze discrimination claims:  first, a plaintiff must establish a prima facie case of discrimination; second, the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action; and third, the plaintiff must proffer evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment action.  Based on the facts above, the 11th Circuit affirmed the granting of summary judgment in favor of the restaurant on Ehrhardt's' AADEA claim.  The restaurant was represented by one of my partners, Kyle Smith.

Practice pointer.  The "but for" test adopted in the Gross decision is a concept favorable for employers.  The 11th Circuits' use of both the Gross and McDonnell Douglas tests lays the groundwork for evaluating claims brought under the AADEA as well as the ADEA.

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Meridith Levinson published an article in PCWORLD on April 30 entitled "How to File an EEOC Employment Discrimination Charge:  Many tech professionals over 40 have tales of how age discrimination is rampant in the field."  The article discusses the belief in the IT world that once you are over 40, age discrimination is common.  She notes that many people dye their hair, male and female alike, leave dates of graduation off resumes and work experience that may "date them" to be over 40.  The article sets forth EEOC statistics from 2010 showing that the EEOC processed nearly 100,000 discrimination and retaliation charges, filed 271 suits and resolved 315 suits and won $85.1 million on behalf of "victims of discrimination".  Remedies under the Age Discrimination in Employment Act include reinstatement to their position as if there had been no discrimination, including back pay and benefits, double damages if there was a willful violation and attorney's fees.  Ms. Levinson goes on to detail how to file a charge, emphasizing how easy it is to do and that a charging party does not need an attorney to file a charge.  She points out that there is an intake form consisting of 4 pages, which can be done at the EEOC office or printed from the EEOC's website. Once the form is completed, it is provided to the EEOC, either in person or by mail.  The article goes on to talk about what happens next: the employer is notified by the EEOC and is asked to respond, mediation may take place, and if unsuccessful, the EEOC will investigate the charge.  If the EEOC determines that there may be a violation, they will either issue a right to sue letter, or in a small percentage of cases, file a lawsuit in the EEOC's name on behalf of the aggrieved person.

Practice pointer.  This article is an excellent description of how the EEOC process is started, and how the charge is handled by the EEOC.  It is interesting to me that this article is directed at a very focused group:  IT workers over 40.  I would not be surprised to see an uptick in ADEA claims being filed in this industry based on this article. 

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It appears as if the EEOC is taking a more active role in filing lawsuits against employers in the name of the EEOC.  Over the last several weeks, the EEOC has filed at least  9 lawsuits in Alabama against various employers.  These lawsuits include alleged violations of the ADA against  two different employers when employees were terminated after the employers learned the employees were HIV positive, allegations that the Age Discrimination in Employment Act was violated when the employer failed to promote a 50 year old employee and hired a younger, less qualified individual, allegations that an employee was terminated because she was pregnant, and allegations that a racially hostile work environment existed because black employees were subjected to the use of the "N" word and the display of a noose in the workplace.  This trend appears to be occurring around the country, with notable cases being filed by the EEOC against Pace Airlines, which operated Hooters Air on behalf of an Asian flight attendant who was fired after complaining that only white workers were being promoted, and a case against a Chicago area automobile dealer alleging that female employees were called obscene epithets and female customers were call "dingbats".

Based on the timing of these lawsuits, it is difficult to determine if this will be a long term trend based on a change in EEOC philosophy, or if it was a last minute rush to file the suits before the end of the fiscal year, which ended September 30, 2009.  Is it possible the EEOC has quotas for the number of lawsuits it files?

The EEOC also recently announced a record $6.2 million settlement of a nationwide class action lawsuit against Sears over the firing of disabled workers.  According to Law.com, Sears fired numerous employees who took leave for work related injuries and that Sears "routinely declined to make accommodations to bring back employees who had taken workers' compensation leave or to offer them a brief extension of their leave to make it possible for them to return later". 

In other EEOC news, the Wall Street Journal today reports that there is a large increase in retaliation claims being filed by employees against employers.  For the fiscal year ending September 30, 2008, retaliation claims rose 23% to 32,690, more than a third of all claims filed with the EEOC.  Although many of the retaliation claims are filed together with underlying discrimination claims, as I often point out during speeches, an employer can be guilty of retaliation even if cleared of the underlying claim of discrimination. 

Practice Pointer.  As evidenced by the types of claims alleged in the lawsuits filed by the EEOC, it appears as if all types of discrimination may be occurring in the workplace.  It is a good time, as we get to the end of the calender year, for companies to review their policies and procedures, make sure that their work force, including supervisors, receives training on the companie's anti-discrimination policies, and that  HR continues to monitor the workplace to avoid claims of discrimination. 

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The Lilly Ledbetter Fair Pay Act of 2009, the passage of which was one of President Obama's main priorities, appears  ready to be signed into law.  President Obama is scheduled to sign the Act tomorrow morning, January 29, 2009.  The Act, which will amend Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act, will re-start the applicable statue of limitations each time a pay check or other benefits are paid for claims involving discrimination on compensation.  The law overturns the 2007 Supreme Court decision in Ledbetter v. Goodyear, arising out of Alabama.  In my opinion, the most important language of the Act is as follows:

"For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

The act purports to apply retroactively as set forth by Congress:  "This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation...that are pending on or after that date."

Lily Ledbetter, who campaigned for President Obama, is quoted in the Birmingham News as follows:   "I will be treated like a second-class citizen by that corporation for the rest of my life," she said, noting that her retirement benefits reflect her lower pay. "But I have the satisfaction of getting this law changed back so that other people can still file."

Practice Pointer.  Now is the time for employers to review their pay polices and pay structure to make sure that there is no discrimination in pay under Title VII, ADEA, ADA and the Rehabilitation Act.  Employers should consider reviewing their pay practices from May 28, 2007, the effective date of this new law, forward.

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