If a person needs an extended leave for treatment for a bad back, would the ADA require an employer to allow him an extra few months? The Seventh Circuit in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. 9/20/2017), said no. Ray Severson, left work for his full 12 weeks of unpaid leave under the FMLA. He then told his employer he would have to undergo surgery on his back. He needed disc decompression surgery. He would need at least two months off from work for recovery. HR told him his last day would be the last day of FMLA. HR added that he could reapply for his position when his treatment ended. In effect, he was fired. Later, when Mr. Severson recovered and was cleared to return to work, he sued is employer, saying the employer had failed to accommodate him.

The plaintiff argued on appeal that the company could have offered him long-term leave, a light duty job, or reassignment to a vacant job. The Seventh Circuit, however, simply ruled that a long-term leave is not viable/ Not working, said the court, is not a means to fulfill the essential functions of the job. If the employee cannot perform the essential functions of the job, then he is not qualified for the job. The court noted that EEOC guidance expressly states long-term leave is a possible alternative under the ADA, if the leave is of definite duration, is requested in advance, and is likely to enable the worker to return to work. But, the court insists if the EEOC’s position as correct, then the ADA would become a medical leave act. It would supplant the FMLA.

The decision contravenes caselaw in other circuits which have found long-term leave to be a viable option. See, e.g., Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000) (reasserting requirement for individualized analysis but not requiring accommodation because even after one year’s paid leave, followed by five months unpaid leave, plaintiff’s homeopathic physician only offered the vague possibility of returning in one to three more years, and suggested no other work he could do); Cleveland v Fed. Express Corp, No 02-3172, 2003 US App LEXIS 24786, at *13 (6th Cir Nov 28, 2003) (unpublished) (finding leave from August 20, 1997 to February 1998, extended to March of 1998 (6 months total) not unreasonable).

The court did not ask whether long-term leave would have presented an undue hardship for the employer. It found, instead, as a blanket rule, that leave longer than the FMLA leave of three months is per se too long. A blanket rule does not satisfy the individual assessment requirement of the ADA.

Colin Kaepernick has filed a labor grievance alleging the NFL has “colluded” to keep him from playing. His press release and the news accounts do not explain what his basis is for believing there is some on going collusion going. See NPR news report.

Having watched the NFL for most of my life, I know the owners are very independent, but sure, they are capable of agreeing on some things. But, it is a steep hill in trying to show collusion or conspiracy. He must show more than that one owner has discussed him and agreed he should not be signed by their respective teams. It is not enough that one owner says to another owner that Kaepernick is a problem. They must go further and say clearly they agree not to sign him to a contract. How would any player, much less someone with Mr. Kaepernick’s notoriety have access to that sort of inside discussion? My guess is he is simply frustrated at going one whole season and now into a second season without being signed by some team. NFL teams are always looking for another quarterback. Yet, he remains unsigned.

A quarterback’s skills are fungible. That youthful energy and ability diminishes over time. He must feel some pressure to get something going. But, as any judge will tell you, speculation is not enough.

Bowe Bergdahl is expected to plea guilty to a charges of desertion and misbehavior before the enemy. SGT Bergdahl’s lawyer has refused comment. But, a former U.S. Air Force JAG officer explained that pleading guilty makes sense. The evidence against the former Taliban POW is rather clear, he said. See San Antonio Express News report. I previously wrote about SGT Bergdahl here and here.

Many veterans think SGT Bergdahl is a plain coward and that he deserted. But, I think most of us just think what he did was strange and stupid. I have heard stories about other service members doing things that were just odd. One soldier, I was told, tried to walk off the FOB in Kirkuk in civilian clothes with no weapon. He apparently just lost his senses. Serving in a war zone is incredibly stressful. People react differently.

The National Labor Relations Act provides that workers can form a union. The NLRA has been around since before World War II. Yet, we often forget that a major portion of the Act protects preliminary activity. Workers can discuss terms and conditions of their job. That sort of discussion can lead to the formation of a union. So, when Jerry Jones says he will not let a player play if he does not stand for the national anthem, he may be transgressing on the NLRA. Local 100 of the United Labor Unions has filed a claim with the National Labor Relations Board claiming his new policy violates the NLRA. See Bleacher report.

The NFL is a bit different from other industries. It is essentially entertainment. One might expect that an entertainment industry might have greater latitude in restricting employee conduct. But, that is just not likely. After all a strike itself would be very upsetting to fans and would certainly interfere with the business of the NFL. Yet, there is no doubt that a player has the right to strike. Flowing from that right to strike is the right to discuss terms and conditions of employment. That is what forming unions is all about. I am a veteran. I would always stand for the anthem. But, the NLRA is the NLRA. The law is the law. Respect for our laws is a duty for everyone, even NFL team owners.

Many workers believe they have been subjected to discriminatory comments by co-workers. Harassment by co-workers is sometimes referred to as a hostile work environment. It does not become actionable until management becomes aware of the harassment and fails to take action. But, what if the perceived discrimination is not necessarily discrimination? In Barnes v. Prairie View A&M, No. 14-15-01094 (Tex.App. Hou. 6/15/2017), Patrice Barnes, African-American, believed she was subjected to racist comments by co-workers. A long-time employee, she began complaining in 2007 about racist comments. A white co-worker observed ceiling insulation falling on people below and said it looked like an “old fashioned tar and feathering party.” Ms. Barnes explained to a third co-worker that tar and feathering referred to actions taken against slaves, and the white co-worker still made the remark again. Ms. Barnes accused co-workers of hiding paperwork and files, of asking her the same questions over and over, talking over her at meetings, etc.

The 14th Court of Appeals in Houston said this conduct did not amount to a hostile work environment. To constitute harassment, the actions by the co-workers must be severe or pervasive. The court addressed the tar and feathering remark and a second remark.  A secretary told one of Ms. Barnes’ clients to go to the white agent, not Ms. Barnes, because Ms. Barnes’ office was the “black” program. It found those two remarks, even if they were deemed racist, were not enough. Two remarks are not enough to constitute a severe or pervasive harassment. Prairie View argued the remarks were based on mis-understandings. The court was not willing to characterize them as racist. Indeed, we have to comment that tar and feathering has some notoriety in American history, but at least to my knowledge, not involving slavery. A remark that is capable of two or more different meanings will not be deemed to be racist.

Regarding the other allegations of conduct by co-worlers and her supervisor, the court found no connection to race. Ms. Barnes argued that since she was the only African-American in the office and because she was the only person subjected to those actions, then it must be race related. The court would not go there. Most courts will not infer racism from targeted actions alone. There has to be something more. The Fourteenth Court did agree that racism need not be explicit. But, the plaintiff has not pointed to any evidence which would support a racist animus on the part of the supervisor. The court of appeals affirmed the grant of summary judgment. See the decision here.

I have been told myself by potential clients that an entire office is discriminating against him/her. But, it is exceedingly difficult to show several employees are acting in concert based on race. That sort of allegation would need better evidence, not lesser evidence.

The Equal Employment Opportunity Commission has sued a local icon, Whataburger. The Tallahassee Whataburger, the EEOC alleges, harassed a manager after she refused to hire only white people. The EEOC claims the General Manager told the assistant manager to only interview people with “white sounding” names. Vanessa Burrous, instead, hired seven black employees and one white employee. The GM later chided Burrous for the hiring and told her the order came from upper management. The GM allegedly added that our customer base is white and we want workers who reflect that base. Ms. Burrous says she was harassed and forced to quit. See San Antonio Express News report.

Yes, it does violate Title VII to hire workers of a particular nationality or race, even if some customers might prefer persons of a particular race. If the plaintiff can support her case, Whataburger’s action would constitute a violation of Title VII. It is unfortunate that Ms. Burrous quit. It is difficult to show things were truly so bad that she had to quit – as opposed to simply wanting to quit. Whataburger is headquartered here in San Antonio.

The Texas Supreme Court heard oral arguments in the Clark v. Alamo Heights Independent School District case. The San Antonio Court of Appeals recognized same sex harassment in that case. The school district has now appealed the matter to the Texas Supreme Court. The lawyer for the district appears to be trying to un-do that decision. He argued that there was no evidence that the harassing coach, Anne Monterrubio, was gay or that she felt sexual attraction toward Coach Clark. I previously white about that Fourth Court decision here.

The Supreme Court is notoriously pro-employer. During the oral arguments, Justice Eva Guzman, asked as crude as Coach Monterrubio’s comments were, is there evidence that her comments were, is there evidence to indicate the comments were based on Coach Clark being female? That question suggests Justice Guzman is not ready to recognize same sex harassment. The comments were very crude, and clearly based on sex. The two female coaches discussed Coach Clark’s buttocks and breasts almost daily. If the justice has to ask whether those remarks were focused on the coach’s gender, then she will likely side with the employer.

See San Antonio Express News report here.

In Whitley v. Dr. Pepper Snapple Group, Inc., 2017 LEXIS 68040 (E.D. Tex. 2017), the Plaintiff’s son was diagnosed with autism spectrum disorder in September, 2015. Amy Whitley claimed Dr. Pepper discriminated against her because it denied coverage for Applied Behavior Analysis treatment, a form of therapy for autism spectrum disorder. Dr. Pepper’s Summary Plan Description initially made no reference to ABA treatment. The Plan did not list ABA treatment as excluded from coverage. In September, 2015, Amy Whitley met with an HR person for Dr. Pepper. The HR person said the Plan did not cover vocational rehabilitation training.

On Jan. 29, 2016, Dr. Pepper amended the Summary Plan Description to specifically exclude ABA treatment. The new Summary Plan Description was posted in May, 2016. Plaintiff Whitley filed an EEOC charge and later filed suit.

The employer moved for summary judgment and argued the amendment was intended to clarify the Plan. The Americans with Disabilities Act prohibits a denial of benefits due to a disability. The court found the plaintiff had an association with a person with a disability, her son. Dr. Pepper became aware of her son’s diagnosis in September, 2015. The court found the denial of coverage amounted to a denial of benefits, which is prohibited by the ADA. A term or provision of a health benefit plan may violate the ADA if it singles out a particular disability. The 2016 Amended Plan did single out and exclude from coverage ABA treatment.

The burden then shifted to the employer to provide a non-discriminatory reason for the exclusion. The court was not satisfied with the reason offered by the employer. The court found there was substantial issue of material fact regarding why the treatment was excluded. The court denied the motion for summary judgment, finding that the employee showed mgenuine issue of fact regarding whether the employer’s actions amounted to retaliation. See the decision here.

Many employers require drug tests for their employees. What happens when the drug testing laboratory commits an error regarding the test? Failing a drug test can result in termination. That is what happened in Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017). The employer had a random drug testing program. Exxon Mobil employed third party laboratories to administer the test. The employee tested positive for illegal substances. Gilberto Rincones said he saw DISA, Inc. follow poor procedures in gathering the urine samples. He claims they made a mistake. DISA offered him the opportunity to re-test. He did not satisfy the requirements for a re-test. But, he took a test on his own through another source and tested negative for drugs. He did not complete the rehabilitation program offered by Exxon and was placed on inactive status. He later filed suit against Exxon and against DISA.

On appeal, the Texas Supreme Court found Exxon was not liable for the actions of DISA. The lab was not the agent of the employer, said the court. It had no contract with the lab. And, its requirements of the lab did not amount to control of the lab. The plaintiff sued the employer for discrimination, arguing that three non-Hispanic employees were allowed to continue working for Exxon even after testing positive for drugs. But, the court found those three employees were not good comparisons to Mr. Rincones, because they were management.

The plaintiff sued DISA for tortious interference with his employment and for negligence. But, the court looked at the date his lawsuit against the lab was due. The court found that Mr. Rincones’ right to file suit accrued when he first learned of the false positive result, not when Exxon placed him on active status. He learned about the false positive on April 14, 2008. He was placed on inactive stays in August, 2008. He then filed suit in August, 2010. So, he was too late by a few months, said the court.

The plaintiff also alleged defamation against Exxon. He claimed that because his employer terminated him for a false reason, he would be forced to provide that false reason to future employers. That sort of defamation is known as “self-publication.” The employee is forced to self-publish the defamatory statement. The Texas Supreme Court recognized that many Texas courts of appeals have accepted compelled self-publication in the past. Nevertheless, the Supreme Court refused to agree. The court made the remarkable claim that if it recognized self-publication, then that recognition would encourage employees to worsen the harm done them by the employer. That is, allowing the doctrine of self-publication would prevent the employee from mitigating his damages. The court is basically saying the employee might not look for work if he had to mention something damaging about himself. Such a notion is simply silly. Few, if any employees, have the option of not looking for work after termination. The Texas Supreme Court has continued its antipathy to plaintiffs. It also betrays a lack of connection to average workers who live from paycheck to paycheck. See the opinion here.