“All Roads Lead to Rome” When It Comes to Summary Judgment on Maine Whistleblower Claims, Says First Circuit

The First Circuit Court of Appeals recently affirmed summary judgment in a retaliation suit under the Maine Whistleblowers’ Protection Act (WPA), finding no merit to the employee’s claim that her termination was motivated by complaints she had made about a coworker’s workplace behavior. Before getting to the merits in Theriault v. Genesis Healthcare LLC, though, the First Circuit addressed Maine’s new framework for analyzing WPA claims and clarified that, although the framework may have changed the way evidence of retaliation is presented at the summary judgment stage, it did not change the level of proof needed to defeat summary judgment. 

Central to the dispute in Theriault was the import of the Law Court’s 2015 decision in Brady v. Cumberland County. In Brady, the Law Court announced that it would no longer use the three-part McDonnell Douglas burden-shifting framework to analyze WPA claims on summary judgment. Instead, the Law Court explained that WPA claims should be analyzed in a unitary way to determine whether the evidence, as a whole, would allow a jury to conclude that an adverse action was motivated by retaliatory intent. 

The question in Theriault was whether the Law Court’s new framework, which collapsed the way evidence of retaliation is presented at the summary judgment stage, also collapsed the scope of evidence to be considered on summary judgment. Theriault argued that it did. She argued that, after Brady, a plaintiff need only establish a “prima facie” case of retaliation to survive summary judgment and that a court should therefore only consider a plaintiff’s evidence when faced with an employer’s summary judgment motion. The First Circuit rejected that argument and found that Brady’s elimination of the burden-shifting framework in no way limited the scope of evidence to be considered on summary judgment in WPA retaliation cases. It explained that, although the new “Maine-specific retaliation paradigm” requires plaintiffs to establish a prima facie case of retaliation, the prima facie showing that must be made is not the minimal prima facie case that plaintiffs had to show under McDonnell Douglas, but rather a body of evidence that is “sufficient to withstand a motion for summary judgment.” A court in a WPA retaliation case may therefore recognize any evidence that the employer had a lawful reason for taking an adverse action, as well as any evidence that the proffered reason is pretext. In short, said the Court, “all roads lead to Rome” under Maine’s new retaliation paradigm and a plaintiff must “adduce precisely the same quantum of proof that she would have had to adduce to defeat summary judgment under the McDonnell Douglas framework.”

Turning to the merits of Theriault’s retaliation claim, the First Circuit found that the trial court appropriately followed Maine’s analytic framework for WPA retaliation cases and, based on an appraisal of the entire record that included evidence from Genesis Healthcare about its reasons for termination, agreed with the trial court that Theriault failed to produce sufficient evidence from which a jury could conclude that her termination was motivated by retaliatory intent.

First Circuit Retaliation Update: Timing of Adverse Action Isn’t Enough to Impute Knowledge of Protected Activity to Employer

Retaliation cases often focus on the timing between an employee’s protected activity and an adverse employment action. The closer they are in time, the more likely it is that a jury could infer that the protected activity caused the adverse action (but not always). This causal link makes sense if there’s evidence that the employer actually knew about the protected activity when it took the adverse action. But what if that evidence doesn’t exist? Can the timing of an adverse action be used to infer that the employer knew about the protected activity and took action because of it? 

The First Circuit Court of Appeals recently tackled this question and answered it with a “no.” In Delaney v. Town of Abington, a police officer alleged that the Town of Abington retaliated against him because of a report he had made to the Massachusetts Attorney General’s office about the town’s traffic ticketing system. The district court granted summary judgment for the town because there was no evidence showing that the town knew about the officer’s report at the time of the alleged adverse actions. 

On appeal to the First Circuit, the officer pointed to evidence that he received a particular work assignment the same day he filed his report. He argued that the assignment was an adverse employment action and that a jury could have inferred that the town “knew that he had filed the report from the fact of this assignment.” 

The First Circuit disagreed. It noted that temporal proximity may be sufficient to establish causation where the “record independently provide[s] a basis from which a jury could reasonably conclude that the employer knew of the employee’s protected conduct at the time that the adverse employment action allegedly occurred.” But it rejected the officer’s argument that the temporal proximity of an adverse action can be used to infer that the employer knew about the protected activity and took action because of it.

It’s a Hard Knock Life for ADA Claimant at the First Circuit

A manager for a Burger King franchise in Puerto Rico who requested a fixed work schedule due to posttraumatic stress disorder (PTSD) that he developed after being attacked at gunpoint was not a “qualified individual” under the Americans with Disabilities Act (ADA), the First Circuit Court of Appeals recently held. Characterizing its opinion in Sepulveda-Vargas v. Caribbean Restaurants, LLC, as a “lesson straight out of the school of hard knocks,” the Court found that being able to work rotating shifts was an essential function of the manager’s job and his inability to do so barred his failure to accommodate claim.

The manager was attacked in 2011 while attempting to make a bank deposit on behalf of his employer, Caribbean. He suffered from PTSD and depression after the attack and, in response to these diagnoses, requested to work a fixed schedule. Although Caribbean initially granted the request, it later told the manager that he would have to go back to rotating shifts. The manager resigned in 2013 and then sued Caribbean, claiming that they failed to accommodate his disability by not permanently providing him with a fixed schedule. The court granted summary judgment in favor of Caribbean and the manager appealed.

The issue on appeal was whether, in light of the manager’s request to work a fixed schedule, he was still qualified to perform the essential job functions that Caribbean required of its managers. The First Circuit acknowledged that identifying essential job functions is a fact-specific exercise, but found there was no dispute in this case that the ability to work rotating shifts was an essential function of the manager’s job. Caribbean explained, and the manager conceded, that rotating shifts were necessary for the equal distribution of work among managers, and the manager further admitted during his deposition that rotating shifts was a responsibility he shared in common with other managers during his employment with Caribbean. The Court also pointed to Caribbean’s hiring materials, including the manager’s signed job application, which made clear that managerial employees had to be able to work different shifts.

Although the manager pointed out that Caribbean had initially granted his request for a fixed schedule, the Court found that Caribbean’s willingness to do so on a temporary basis was not a concession that rotating shifts was a non-essential function. Consistent with decisions from other federal courts, the Court found that to conclude otherwise would unfairly punish employers for doing more than the ADA requires.

New Guidance on Massachusetts Equal Pay Law

The Massachusetts Office of the Attorney General has issued guidance on the amended Massachusetts Equal Pay Act (MEPA), which goes into effect on July 1, 2018. The guidance provides a succinct overview of the MEPA and contains a lengthy FAQ on the amended law’s requirements.

The MEPA prohibits discrimination in pay based on gender and requires employees of different genders to be paid equally for “comparable work.” Under the amended MEPA, “comparable work” is defined as work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions. The law does permit differences in pay based on certain factors, such as a merit system, seniority system, or geography, and the new guidance sheds light on the circumstances that must be present to justify variations in pay based on these factors. Employers who violate the MEPA are liable for twice the amount of unpaid wages owed to an affected employee, as well as attorneys’ fees and costs. However, the law provides a complete defense to an equal pay claim if an employer can show that it conducted a good faith, reasonable self-evaluation of its pay practices within a three-year window prior to the claim being filed, and that it has made reasonable progress towards eliminating any discrepancies revealed by the self-evaluation. The new guidance includes a basic how-to guide for employers to conduct a self-evaluation and take advantage of this affirmative defense.

Employers should also be aware that, under the MEPA, they may not prohibit employees from disclosing or discussing their wages, and they may not inquire about a prospective employee’s wage or salary history prior to making an offer of employment that includes terms of compensation. With these provisions, Massachusetts joins Oregon, Delaware, California, and a handful of cities that have implemented similar laws prohibiting inquiries into salary histories. Although the Maine Legislature passed a bill (LD 1259) in June 2017 that would have added Maine to this list, Governor LePage vetoed the bill, leaving limitations on salary inquiries for another legislative day.

Once an Accommodation, Always an Accommodation?

A parts clerk suffers a stroke. Following the stroke, the clerk returns to work without restrictions but still has difficulty moving his left side. The clerk, however, continues to receive rehab and all parties expect that his condition will improve. Based on that expectation, the clerk’s supervisors tell him that they will accommodate him as best they can as long as he can reasonably perform most of his job, which happens to include being able to lift 50 pounds. Over the next 15 months, the clerk has difficulty completing all of his tasks in a safe and timely manner, but his employer elects not to reprimand him in light of his full release and the expectation that he will continue to improve. The employee does not improve, though, and so the employer offers the clerk a job transfer. The employee accepts but fails to adjust to the new position, and the employer terminates his employment. The clerk then sues claiming that, because the employer accommodated him for 15 months without complaint, it was obligated to continue doing so.

The question is: Is he correct?

A federal district court in North Carolina recently tackled this question and—based on the specific facts of the case—answered it with a “no.”

In Moore v. Wal-Mart Stores East, LP, the court noted that, even after 15 months, the clerk was unable to perform the essential functions of his job with or without a reasonable accommodation. He could not, for example, lift more than 20 pounds or safely climb ladders on his own and could only do so with assistance from others, which the court noted was unreasonable because it effectively reallocated the job’s essential functions to others.

As for the clerk’s claim that the employer was obligated to continue providing the accommodation it had given him for 15 months, the court found that the employer was not required to maintain a diminished level of exertion indefinitely. Although the employer had accommodated the clerk by allowing him to resume working while only performing certain functions, there was no legal duty to create a “permanent light-duty position that does not otherwise exist.”

According to the court, it could not punish the employer by deeming it to have “conceded the reasonableness of so far-reaching an accommodation.” Otherwise, it would discourage employers “from doing precisely what was done here, which was to temporarily lessen the physical requirements of a job in hopes that the employee’s functional capacity would be restored.” That result, said the court, would clearly be at odds with the purpose of the Americans with Disabilities Act (ADA).

EEOC Releases New Strategic Enforcement Plan

The Equal Employment Opportunity Commission (EEOC) has announced a new Strategic Plan for 2018 – 2022. The EEOC approved the new plan unanimously and began implementing it last month.

As explained by the EEOC in its announcement, the Strategic Plan serves as a framework for the Commission to achieve its mission through “strategic application of the EEOC’s law enforcement authorities, preventing employment discrimination and promoting inclusive workplaces through education and outreach, and organizational excellence.” For each of these three objectives, the EEOC has identified specific outcome goals as well as performance measures to track the Commission’s progress toward those goals.

The new Strategic Plan continues many of the same priorities found in the EEOC’s previous plan. For example, the plan continues to prioritize systemic investigations and lawsuits, which the Commission believes have greater strategic impact due to their wide influence on industries, occupation, and geographic areas. According to the EEOC, though, the new Strategic Plan sharpens the agency’s focus and updates emerging issues of concern. The Strategic Plan’s performance measures contain perhaps the best evidence of this updated focus, which include greater emphasis on obtaining targeted, equitable relief when resolving charges, and ensuring that charge investigations and conciliations meet certain quality criteria.

Although the EEOC has already begun implementation of the new Strategic Plan, it is not doing so at full capacity: the five-member Commission still has two vacancies, and it is not clear when (or if) President Trump’s nominees for those vacancies will be confirmed.

Recent NLRB Activity Has Implications for Social Media

It has been a busy few months at the National Labor Relations Board (NLRB). Since December 2017, the NLRB has: released more than 40 advice memoranda containing guidance on a plethora of labor issues; overruled the joint employer test it adopted in 2015 in Browning-Ferris Industries, and then vacated its decision (Hy-Brand Industrial Contractors, Ltd.) due to a board member’s conflict of interest; and issued decisions in three other cases that significantly alter the standards applied to micro-bargaining (PCC Structurals, Inc.), unilateral changes (Raytheon Network Centric Systems), and employee handbooks (The Boeing Company). Two of these developments have implications for social media in the workplace.

First, in one of the advice memoranda released by the NLRB (Team Fishel), the NLRB’s Division of Advice concluded that a policy restricting the use of social media on company equipment was unlawfully overbroad and represented an opportunity to extend the Board’s decision in Purple Communications to social media. In Purple Communications, the Board held that employees who have been given access to a company email system have a presumptive right to use email to communicate about the terms and conditions of their employment during non-working time. According to the Division of Advice, although Purple Communications was limited to the use of company-provided email, the “internet, including social media, shares many of the email-related attributes that were discussed by the Board in Purple Communications.” Those similarities weighed in favor of giving employees a presumptive right to use social media as a means of communicating about Section 7 activities during non-working time.

Second, with its decision in The Boeing Company, the NLRB threw out the standard it has used to determine whether handbook policies, including social media policies, are lawful. That standard, which the NLRB adopted in 2004 in Lutheran Heritage Village-Livonia, focused on whether a policy could “reasonably be construed” by employees as chilling protected rights under the National Labor Relations Act (NLRA). The breadth of this standard made it difficult for employers to craft compliant policies on social media and other topics, despite attempts by the NLRB’s Office of the General Counsel to provide guidance. Now, under a new standard announced in The Boeing Company, the NLRB will consider both the impact that a workplace policy may have on NLRA rights, and the employer’s legitimate justifications for the policy.