Are You Exhausted? Second Circuit Denies Retaliation Claim for Plaintiff Who Did Not Timely File Underlying ActionIf an employee files an EEOC charge alleging discrimination and retaliation, never files a lawsuit on that charge, and several years later files another charge that he has suffered retaliation because he filed the first charge—can he still pursue claims from his first charge? In legal speak: Can a claim of alleged ongoing retaliatory behavior survive the EEOC exhaustion requirement when the underlying discrimination claims were time-barred because the plaintiff failed to file suit within 90 days after receiving his right-to-sue letter? In Duplan v. City of New York, the Second Circuit held that a plaintiff cannot avoid Title VII’s exhaustion requirement by asserting retaliation for filing a claim of discrimination that he failed to pursue.

Refresher on Title VII Exhaustion

Before an employee can file a Title VII claim, the following administrative remedies must be exhausted:

(1) He or she must file a charge of discrimination with the EEOC within 180 days (or in some jurisdictions, such as New York, 300 days) after the alleged unlawful employment practice occurred, and

(2) He or she must file a lawsuit within 90 days of receiving a right-to-sue letter.

If an employee does not file a charge or a lawsuit within those deadlines, he or she cannot pursue those Title VII claims. In some instances, however, if a plaintiff is pursuing Title VII claims and then wants to include retaliation claims that arose after the first charge was filed, courts have held that the retaliation claims may not need a separate charge of discrimination.

Facts of Mr. Duplan’s Case

Louis Duplan, a gay black man from Haiti, filed complaints with the city, the EEOC, and the New York State Division of Human Rights (NYSDHR) in July and August of 2011 asserting that he was denied a promotion for discriminatory reasons and in retaliation for complaining about discrimination.

Duplan alleged that in 2011 his direct supervisor made derogatory comments about black people, gay people, and Haitians. He also alleged that on two occasions his supervisor gave preferential treatment to white women. Duplan further complained of being stripped of several substantive and managerial responsibilities. Duplan received his right-to-sue letter on July 30, 2012, but never filed a civil action.

Two years later, in September 2014, Duplan reported to several supervisory employees that he felt he was subjected to continued retaliation following his 2011 complaint. On October 23, 2014, he filed a second complaint with the EEOC and the NYSDHR and received a right-to-sue letter in June 2015. He filed a civil action on July 10, 2015, alleging retaliation and hostile work environment under Title VII.

In previous rulings, the Second Circuit deemed that, in certain circumstances, it may be unfair, inefficient or contrary to the purposes of Title VII to require separate exhaustion for new violations “reasonably related” to the initial claim. The “reasonably related” doctrine applies to cases where the EEOC charge or a timely filed suit based on the underlying discrimination charge is still pending. In Duplan, however, the court refused to extend its existing precedent, reasoning that the conduct about which Duplan complained occurred after the EEOC’s investigation and Duplan did not file suit within 90 days after receiving the right-to-sue letter on his 2011 complaint.

What Does This Mean?

Be careful about retaliation claims. There are still limited situations in which a plaintiff may not have to file a new charge of discrimination before adding retaliation claims to a pending lawsuit. During a time when retaliation claims continue to be the most frequently filed claims – 51.6% of all charges filed – employers should proactively avoid claims of retaliation.

Terminating an Employee on Maternity Leave and Winning the Case: The Eleventh Circuit Affirms a Jury Verdict for Winn-DixieAn employee is on maternity leave and it does not look like she is going to be returning to work. Should you go ahead and terminate her employment during the maternity leave? Wait until it is over to terminate her employment? Require her to come in for an exit interview? Almost all of my clients have struggled with this scenario and held their breath hoping it would all work out for the best. Winn-Dixie recently defended its decisions in just such a scenario. In Varonica Udeh v. Winn-Dixie Montgomery, LLC, the Eleventh Circuit reviewed a jury’s verdict, concluding that the jury and Winn-Dixie were right.

Facts

Varonica Udeh started work for Winn-Dixie in January 2009 and needed maternity leave six months later in June. We can assume she did not qualify for FMLA leave given her short term of employment. Regardless, when she asked for maternity leave, Winn-Dixie said fine, got her the paperwork, and she went out on leave. Although there was some dispute about whether her maternity leave paperwork was complete, there was no dispute that she took the leave. Importantly, Udeh did not claim that anyone attempted to discourage her from taking leave.

In July, Udeh called the store manager, Monica Sledge, to discuss her plan to return to work. This is where the disputes of fact begin. Sledge testified that they discussed Udeh’s return to work to an available position and Sledge penciled her in on the schedule (a copy of which she did not keep). According to Sledge, Udeh called back to say she was not going to return to work and never showed up for the scheduled shifts. For her part, Udeh testified that she was planning to return to work once her doctor released her in August, but the store co-manager, Lorre Prisby, called to tell her she was terminated. (Prisby denied the call.) Winn-Dixie terminated Udeh about 10 days later—six weeks and one day after she began her maternity leave. Udeh did not return to work for Winn-Dixie and drew unemployment benefits for 18 months before returning to work at another employer.

The district court decided that there were disputes of material fact, so it denied Winn-Dixie’s motion for summary judgment and the parties tried the case. After four days of trial, the jury found in Winn-Dixie’s favor and Udeh appealed.

Eleventh Circuit Affirms Jury Verdict 

Udeh argued that there was plenty of evidence that Winn-Dixie terminated her because of her pregnancy and a reasonable jury could not have concluded otherwise. The court rejected all of her arguments, and I will only address a few of them here. First, Udeh argued that the jury could not have believed Sledge instead of her because, in part, Sledge did not have the schedules to show that Udeh had been scheduled for shifts for which she did not show up and Sledge could not recall those dates. The court said it was reasonable for a jury to believe Sledge’s testimony that the store did not keep the written schedules and she could not recall the specific dates because it happened several years before.

Second, Udeh said that Winn-Dixie did not follow its usual practice in terminating no call/no shows because it did not call her when she did not show up before the store terminated her. The court rejected this argument, pointing out that Sledge testified they did not call Udeh about the no show because she had already told Sledge she was not returning to work.

Finally, Udeh argued that Winn-Dixie terminating her six weeks and one day after she began her maternity leave showed it was related to her pregnancy. The court said that was not necessarily the case—Udeh said Prisby had called her 10 days earlier to tell her about the termination. The court also noted that there was no evidence that anyone at Winn-Dixie discouraged Udeh from taking her maternity leave.

The court concluded as follows:

In short, there is substantial evidence to support the jury’s conclusion that Plaintiff was not terminated because of her pregnancy but instead because she abandoned her job, most notably, Sledge’s testimony that Plaintiff was terminated for job abandonment, Plaintiff’s testimony that none of her supervisors discouraged her from taking leave or reacted negatively to her request for leave, and other evidence that Plaintiff stayed out of the workforce for eighteen months after filing a claim for unemployment compensation, which the jury might have viewed as confirmation of her desire not to work.

Takeaways

Winn-Dixie won this case, but only after a long legal battle and a jury trial. The court’s opinion makes clear that Udeh’s staying off work for 18 months was a persuasive fact—but that is not a fact on which employers should count when making these decisions. Here are three things that employers can control that may get you summary judgment instead of a jury trial:

  1. Follow your procedures. If your policy or practice is to call an employee before terminating for no call/no show, call the employee. It may seem silly if the employee told you earlier that she was not going to return to work, but go ahead and check that box.
  2. Document your conversations. Even if you do not make the final call and rely on the employee’s earlier representation about not returning to work, send a letter documenting your conversations with the employee and the basis for the termination. The letter should outline the facts, the prior conversations, and the decision. I like to end with a statement that puts the ball in the employee’s court—something like “If I have misunderstood our conversations, please let me know. If I don’t hear from you by DATE, we will proceed with your termination.” Send the letter via U.S. mail, email or whatever method works best.
  3. Keep all of the relevant records. Even if the employee appears to have abandoned her job, keep the records showing that you scheduled her for a shift and she did not show up. You may never need them, but you will be glad you have them if you do.

DOL Calling! 5 Tips for Navigating a FMLA AuditHave you ever been audited by the Department of Labor? Most employers know that the DOL can perform a Fair Labor Standards Act audit to determine whether employees are being properly compensated for time worked. What employers may not know is that the DOL also has authority to conduct audits concerning compliance with the Family Medical Leave Act (FMLA). The DOL’s investigation consists of an examination of company records to determine which laws/exemptions apply, an examination of employee records, interviews of management, and interviews with certain employees in private.

For that reason, employers should make FMLA compliance a priority so that they are prepared when the DOL letter announcing an upcoming audit arrives. Failing to make compliance a priority can lead to costly settlements, fines, and penalties. Following a recent FMLA audit of one of my clients, I can suggest the following best practices that will help make sure you are prepared for an FMLA audit beforehand or avoid an audit completely.

Best Practice # 1: Maintain accurate records.

Covered employers must maintain records that include the following information: basic payroll and identifying employee data (name, address, occupation, rate of pay, hours worked each pay period, additions/deductions from wages, and total compensation); dates FMLA leave is taken; hours of FMLA leave used if leave is taken in increments of less than a day; copies of FMLA notices exchanged between the employer and employee; any documents describing employee benefits or employer policies and procedures regarding the taking of leave; and any documents evidencing a dispute between the employer and employee regarding the designation of FMLA leave. Also, don’t forget that you must maintain medical certifications and recertifications as confidential medical records, typically in separate files from the employee’s usual personnel file. You have to retain these records at least three years.

Best Practice # 2: Have a written FMLA policy, and keep it current.

Employers should make sure that they have a policy in place that accurately describes how the company administers FMLA leave and includes all information that is necessary to comply. The policy should also inform employees about how to request leave and of their responsibilities under the law. You should regularly review your policy to make sure that (1) it complies with current federal requirements and (2) the company is following it. The policy should be readily accessible to employees (i.e., in the handbook, if you have one posted).

Best Practice # 3: Train managers and supervisors on FMLA policy.

Once the company has a policy in place, you should regularly train managers and supervisors on their roles in it. Because supervisors have more contact with employees than Human Resources, it is particularly important for supervisors to understand how to recognize when an employee may be eligible for FMLA leave or may be requesting FMLA leave (especially since an employee may not specifically request “FMLA leave”). They also need to understand how to communicate with employees about FMLA leave and the anti-retaliation provisions of the law.

Best Practice # 4: Conduct an internal audit.

An employer may conduct an internal audit of its FMLA policies, practices, and notices to ensure that they are in accordance with current federal requirements. You should examine FMLA records (such as records of employees granted or denied FMLA leave, notices, and medical certifications) to be sure that FMLA determinations are being handled properly, are being properly maintained, and are easily accessible in the event of an audit. Conducting an internal audit also allows you to identify and correct any issues prior to a DOL audit.

Best Practice # 5: Ensure that FMLA notice requirements are satisfied.

Employers must provide certain notices to employees regarding FMLA leave. The DOL has model notices and certifications on its website. You may create your own notices but be sure that they include all the information required by the DOL. The DOL periodically updates its model forms, so employers should regularly check to make sure that the forms you use contain all the current information.

Covered employers (i.e., those with at least 50 employees) should confirm that you have posted a copy of the DOL’s current FMLA poster in a prominent location where it can be readily seen by employees and applicants at each worksite. If you have 50 employees but none of them are FMLA eligible (e.g., no one works at a site with 50 employees within a 75-mile radius), you still have to have a policy and have the poster displayed on site.

 

If you do find yourself subject to an investigation, don’t panic but make the audit a priority. Once you get the notice, you typically only have a few days to prepare prior to the on-site visit.  Take a deep breath and call your attorney. He or she will help you make sure that the appropriate records are collected and organized. You can and should have a lawyer present during the DOL’s visit. Make copies of all records provided to the investigator, be cooperative and truthful while meeting with the investigator, and make thorough notes of the questions asked and the answers that were provided.