Employee’s Deficient Performance Rather Than His Age Was the Reason Behind His Termination

Robert Senske was fired from his position as a high-ranking sales manager with Sybase, Incorporated. Senske was hired when he was 55 years old, and he was 58 years old on the day he was fired. Sybase said it fired Senske because a client complained about his performance and because he was dilatory in completing required paperwork, was persistently tardy for meetings, and was not a team player. Senske said he was fired because his manager considered him too old.

Senske sued Sybase under the Age Discrimination in Employment Act (“ADEA”), alleging that Sybase concocted fictional reasons to fire him in an attempt to disguise age discrimination. The district court concluded that no reasonable jury could find that discrimination, rather than Senske's performance deficiencies, was the root cause for Senske's termination and granted summary judgment to Sybase. On appeal, the Seventh Circuit affirmed, agreeing with the district court's conclusion that no reasonable jury could find that his age was the real reason behind Senske's termination.

Robert Senske v. Sybase, Inc. U.S. Court of Appeals 7th Circuit, -- F.3d ----, 2009 WL 4348328 (C.A.7 (Ill.)) Dec 3, 2009. The Seventh Circuit Court of Appeals’ jurisdiction includes Illinois, Indiana and Wisconsin.

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Maid Service Owes Workers More Than $3.5 Million in Back Pay

The owners of a Southland residential cleaning service were taken into custody and later released after failing to comply with a court order directing payment of $3.5 million in back wages, plus interest, fines and liquidated damages to at least 385 workers.

"It is unconscionable that an employer would continue to disregard the obligation to pay vulnerable workers, even after being ordered to do so by a federal judge," said Secretary of Labor Hilda L. Solis.

The owners of Southern California Maid Service and Carpet Cleaning Inc., Sergio Maldonado and Lorenza Rubio of Rolling Hills Estates, Calif., were taken into custody Friday, Oct. 30, and released Tuesday evening, Nov. 3, after appearing before the Honorable Andrew J. Guilford at the U.S. district court in Santa Ana, Calif. At the Nov. 3 hearing, the couple promised to pay $30,000 by Nov. 5. Maldonado and Rubio have until Nov. 12 to pay the balance of the $3.5 million.

The court sided with the U.S. Department of Labor in finding that the company had wrongly classified its home and carpet cleaners as independent contractors and failed to pay them the federally required minimum wage or overtime for hours worked over 40 per week.

The court awarded back wages to the workers on Aug. 21, 2007, following an investigation by the Labor Department's Wage and Hour Division. Judge Guilford also ordered payment of more than $1 million in liquidated damages for violations of the federal Fair Labor Standards Act (FLSA). In September 2008, the Labor Department filed for civil contempt charges for continued failure to comply with the order. In April 2009, the court ordered daily fines against the company of $2,000, plus an additional $200 per day each from Maldonado and Rubio. Despite repeated efforts by department attorneys, the company and its owners have failed to make any payments to the department or the workers.

Solis v. Southern California Maid Service and Carpet Cleaning Inc. Case Number: CV 06-3903 AG (MANx), U.S. District Court for the Central District of California, Nov. 2009

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The Alleged Sexual Harassment Was Not Sufficiently Severe Or Pervasive To Support a Title VII Claim

Andrea Anderson sued her former employer, Family Dollar Stores Of Arkansas, Inc., alleging sexual harassment in the form of a hostile work environment and actual quid pro quo sexual harassment in violation of Title VII and the Arkansas Civil Rights Act.

The United States District Court granted summary judgment in favor Family Dollar. On appeal the 8^th Circuit affirmed, holding that: (1) Anderson failed to make a prima facie case of sex discrimination as the conduct she relied on to support her claim was not sufficiently severe or pervasive to affect a term, condition, or privilege of her employment; the supervisor rubbed Anderson's shoulders or back, called her “baby doll” during a telephone conversation, made a one-time long-distance call suggesting that she should be in bed with him, and insinuated that she could go further in the company if she got along with him; and (2) there was no evidence to support Anderson’s claim that she suffered an adverse employment action as a result of her refusal to submit to the supervisor's implied or inferred demand for sexual favors; and (3) alleged harassment by coworker was not based on gender.

See Anderson v. Family Dollar Stores of Arkansas, Inc. --- F.3d ----, 2009 WL 2747013 (C.A.8 (Ark.), Sept 1, 2009)

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Employee's alleged good faith did not give him license to work for competitor in violation of non-compete covenant.

Even assuming that whether an ex-employee intended to violate a covenant not to compete might, in some circumstances, be relevant under Florida law to whether a preliminary injunction should issue to enforce the covenant, and even assuming that the ex-employee of a management consulting firm, in quitting the firm to accept a position to work for a direct competitor in Canada, reasonably believed that Canada was outside the geographic scope of the covenant not to compete, the alleged good faith nature of the employee's violation of the covenant did not prevent the district court, in accordance with a tolling provision in employment contract, from using the employee's breach as a basis to toll the six-month restrictive period and to prospectively enjoin the employee from working for the competitor for six months from entry of its order. The mere fact that the employee may have reasonably erred in determining the scope of the competitor non-compete covenant did not grant him a license to work for the competitor in violation of the agreement.

See Proudfoot Consulting Company v Derrick Gordon, US Ct. of Appeals, Eleventh Circuit, --- F.3d ----, WL 2256016 (Fla. July 30, 2009)

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U.S. SUPREME COURT MAKES IT HARDER TO PROVE AGE DISCRIMINATION

The Supreme Court has made it harder to prove discrimination on the basis of age, ruling against an employee in his mid-50s who said he was demoted because of his age.

In a 5-4 decision written by Justice Clarence Thomas, the court said a worker had to prove that age was the key factor in an employment decision, even if there was some evidence that age played a role. In other discrimination lawsuits, the burden of proof shifts to the employer once a worker shows there is some reason to believe a decision was made for an improper reasons. However, that no longer applies in age discrimination cases.

Jack Gross had been a vice president of FBL Financial Services of West Des Moines, Iowa. But in 2001, he lost the title of vice president in a reorganization and two years later, some of his responsibilities were given to a colleague.

Gross sued under the federal Age Discrimination in Employment Act and a jury agreed that his age was a motivating factor in his demotion. Gross was awarded $46,945 in lost compensation in the lower court.

The federal appeals court in St. Louis, however, overturned the verdict, which was affirmed by the U.S. Supreme Court.

The Age Discrimination in Employment Act ("ADEA") does not authorize a mixed-motives age discrimination claim. When an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations (i.e., a “mixed-motives” case), he must prove that the disparate treatment would not have occurred, "but for" his age.

Held: A plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The Burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when the plaintiff has produced "some" evidence that age was one motivating factor in that decision. In the instant case, in which the plaintiff alleged that the employer's action in reassigning the plaintiff to a different position and reallocating the plaintiff's former job responsibilities to a younger co-employee was based at least in part on plaintiff's age, the Court of Appeals erred in concluding that the district court should not have given a mixed-motives jury instruction where plaintiff did not present any direct evidence of discrimination. A Mixed-motives jury instruction is never proper in an ADEA case.

See Jack Gross v. FBL Financial Services, Inc., 08-441, 557 US ___, June 18, 2009, 21 Fla. L. Weekly Fed. S958a

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Florida - District Court Holds That Pit Bosses Should Not Be Digging Into the Tip Pool

Recently, Florida joined other states that have been evaluating challenges to the members of "tip pools." In Wajcman, et al. v. Investment Corp. of Palm Beach d/b/a Palm Beach Kennel Club, the challenge was filed by several dealers employed by the Palm Beach Kennel Club between the years of 2004 and 2007.

Plaintiffs initiated this collective action alleging that Defendant violated the Fair Labor Standards Act (“FLSA”) while Plaintiffs were employed as poker dealers in Defendant's cardroom. Specifically, Plaintiffs claimed that Defendant violated the FLSA by mandating their participation in a tip pooling scheme, whereby the poker dealers were required to share their tips with the cardroom floor supervisors. According to Plaintiffs, the cardroom floor supervisors should not have been included in the tip pool because they did not have significant interaction with the customers and did not normally receive tips. The jury found in favor of Plaintiffs and concluded that Defendant's tip pool was invalidated by the inclusion of the floor supervisors.

The issue addressed by the Court in this decision was whether Defendant had presented sufficient evidence to demonstrate that its violation of the FLSA occurred in good faith and under the reasonable belief that it was compliant with the FLSA. If the Court found sufficient evidence of good faith and reasonable belief, then it had the discretion to limit or deny an award of liquidated damages, which is otherwise mandatory under the FLSA.

After reviewing the evidence, the Court concluded that although the employer had a subjectively honest intention to ascertain and act in accordance with the requirements of the FLSA, the employer's belief regarding its FLSA compliance was not objectively reasonable. Thus, the employer's good faith defense was precluded, and the poker dealers were entitled to liquidated damages for overdue wages based on the illegal tip pool.

See John WAJCMAN and Charles Ashmore v Investment Corp. of Palm Beach d/b/a Palm Beach Kennel Club, U.S.District Court, Southern District of Florida Case No. 07-80912-Civ-Hopkins, May 15, 2009.

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Supreme Court Justices Rule for White Firefighters in Reverse Discrimination Case

The Supreme Court ruled on June 29, 2009, in a case with enormous implications for workplaces across the country, that white firefighters in New Haven suffered unfair discrimination because of their race when the city scrapped the results of a promotional exam.

“The city’s action in discarding the tests violated Title VII,” the court held in a 5-to-4 decision, referring to a section of the Civil Rights Act of 1964. The majority said the city’s fundamental arguments were “blatantly contradicted by the record.”

And while the case concerned public employees, the ruling is also likely to affect private employers, since Title VII of the Civil Rights Act covers private employers as well as public ones.

The case was rooted in tests given in 2003 for promotion to lieutenant and captain. The exams yielded no black firefighters eligible for advancement, prompting the city to throw out the results and promote no one. That move, in turn, triggered a lawsuit by 18 white firefighters, one of them Hispanic, who claimed racial discrimination, or what is often termed “reverse discrimination.”

The ruling written by Justice Anthony M. Kennedy acknowledged that the city faced a “damned if you do, damned if you don’t” situation, as Justice David H. Sourter put it when the case was argued on April 22. That is, if the city had allowed the promotional exam to stand, it would have faced a lawsuit from black firefighters.

But the city’s dilemma did not justify scrapping the exam results, Justice Kennedy wrote, "Fear of litigation alone cannot justify the city’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” the majority said.

The terms “disparate treatment” and “disparate impact” were crucial to the New Haven case. As originally enacted in 1964, Title VII of the Civil Rights Act held employers liable only for disparate treatment on the basis of race, color, religion, sex or national origin.

But in a 1971 case, Griggs v. Duke Power Company, the Supreme Court interpreted Title VII as prohibiting, in some cases, employer practices that were neutral on their face but discriminatory in operation. These “disparate impact” practices are to be prohibited if the employer cannot show that they arise from “business necessity.”

Notwithstanding Justice Souter’s “damned if you do, damned if you don’t” observation when the case was argued, the majority concluded on Monday that the City of New Haven “cannot meet that threshold standard” of showing that it would have been liable to a suit under the “disparate impact” principle. In these circumstances, the standard for permissible race-based action under Title VII is that the employer must "demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute." Consequently, this decision will change the landscape of civil rights law and casts continued doubt on the disparate impact theory of discrimination.

See Frank Ricci v John DeStefano, No. 07-1428 557 US ___, June 29, 2009.

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Only Written Complaints Are Protected against Retaliation by the Federal Wage-and-Hour Law

An employee who was fired after he orally complained about alleged violations of the Fair Labor Standards Act cannot sue his employer for retaliation under the law because he failed to put his grievances in writing, a federal appeals court in Chicago has ruled.

The 7th U.S. Circuit Court of Appeals said the anti-retaliation provision of the FLSA protects an employee from being fired because he or she has "filed any complaint."

"The natural meaning of the phrase 'file any complaint' requires submission of some writing to an employer, court or administrative body," the three-judge panel explained.

Kevin Kasten worked for Saint-Gobain Performance Plastics Corp. in Portage, Wis., from 2003 until he was fired in 2006.

At some point during his tenure Kasten took issue with the location of the company's time clocks. He orally told several supervisors that the location of the clocks meant that employees were not being paid for time spent putting on and taking off their required protective gear, in violation of the FLSA.

Saint-Gobain disciplined Kasten a number of times for failing to punch in on the time clocks, warning him each time that he faced termination if he did not adhere to the time clock policy.

Finally, the company suspended and then fired him for refusing to clock in as required.

Kasten sued Saint-Gobain in the U.S. District Court for the Western District of Wisconsin, alleging he was fired in violation of the anti-retaliation provision of the FLSA.

The court granted summary judgment to Saint-Gobain, finding that Kasten had not engaged in an activity protected by the statute because he had not "filed any complaint" about the allegedly illegal location of the time clocks.

The court concluded that although intra-company complaints were protected activity, unwritten oral complaints were not.

On appeal, the 7th Circuit affirmed.

First, the panel agreed with the lower court and several other jurisdictions that the plain language of the FLSA indicated that internal intra-company complaints are protected under the statute.

However, again under the plain language of the statute, purely oral complaints are not protected, the appeals court said.

The panel rejected Kasten's argument that the word "file" can mean "submit," deeming that usage "overbroad."

The 4th Circuit has found that oral complaints are not protected activity, while the 6th, 8th and 11th circuits have ruled that oral complaints or "voicing concerns" were protected activity, the court noted.

See Kasten v. Saint-Gobain Performance Plastics Corp., No. 08-2820, 2009 WL 1838291 (7th Cir. June 29, 2009).

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