Workplace Retaliation

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Sleeping at a desk

The 7th Circuit, in a short opinion issued April 6, zapped a plaintiff’s claim that he was terminated in violation of the ADA based on his condition of being overexposed to electromagnetic voltage at his job. Mr. Hirmiz, a desk clerk at a Travelodge hotel, was caught on video sleeping during a fight that broke out among guests in the lobby. He was fired. Mr. Hirmiz sued the hotel claiming that his employer failed to accommodate his disability–hypersensitivity to electromagnetic voltage. He also alleged that his termination was in retaliation of his filing a complaint with OSHA that the hotel had high-voltage levels. The lower court dismissed his case because he failed to show that he was actually disabled under the ADA and could not show that his OSHA complaint played any role in the termination.

Judge Posner, in a fairly short opinion, agreed with the lower court’s dismissal. He noted that there is a scientific debate about whether allergies to electromagnetic voltage are a physical disorder or a psychological one. The judge pointed out that if it is a psychological disorder, the symptoms might not rise to the level of substantially limiting a major life activity, which is required to qualify as a disability under the ADA. The analogy Judge Posner used is the fear of black cats—a psychological disorder that likely wouldn’t qualify. The 7th Circuit opinion noted that Mr. Hirmiz didn’t provide any proof to show that he was suffering from such an impairment.

On the retaliation claim, Judge Posner found that Mr. Hirmiz had not sought any accommodation for his alleged disability and didn’t file any charge with the EEOC until after he was fired. He couldn’t show any causal link between the OSHA complaint and his termination (in fact, OSHA tested the hotel and found all levels to be normal). The hotel had a valid reason, unrelated to his alleged disability, for firing him—-he was sleeping on the job. As such, the 7th Circuit affirmed the dismissal of his case.

This decision shows that although it may seem like courts take a broad view of what constitutes a disability, plaintiffs still have to meet the burden of showing that they suffer from an impairment that substantially limits a major life activity. Sometimes a sleeping employee is just that—-a sleeping employee.

ImmunizationsCan fear of an aspect of your job constitute a disability under the ADA?  Depends on how essential the function is. In Stevens v. Rite Aid Corp, the Second Circuit Court of Appeals looked at the case of a Rite Aid pharmacist, Christopher Stevens, who suffered from trypanophobia—-fear of needles.

Factual Background.

In 2011, Rite Aid decided that all pharmacists had to give immunization injections to customers and revised the essential functions on the job description to include a valid immunization certificate. Stevens (who had worked as a Rite Aid pharmacist for 34 years) promptly went to his treating physician and got a note stating that if required to use a needle to give an immunization, he would suffer from lightheadedness, paleness and may faint. Rite Aid engaged in an interactive process—seeking additional information about what, if any, accommodation would enable Stevens to administer injections. The doctor essentially said there were none and went on to note that the possibility of Stevens fainting might be unsafe for the customers and Stevens.

In response, Rite Aid told Stevens that his phobia was not covered by the ADA and that giving immunizations was now an essential function of his job. Since he could not perform that function, Stevens was terminated. He filed suit against Rite Aid for wrongful termination, retaliation, and failure to accommodate him under the ADA and a jury awarded him over $2 million dollars. Rite Aid asked the district court to set aside the verdict. The Court reduced part of the verdict and dismissed the failure to accommodate claim.  Both Stevens and Rite Aid appealed that decision. The Second Circuit sided with Rite Aid.

The Court’s Legal Analysis.

The Second Circuit first focused on Rite Aid’s essential function argument. Under the ADA, if an employer claims that a particular job function is essential, the Court must review the evidence to see if that is true. The Second Circuit found that the evidence was uncontradicted that Rite Aid made a business decision to start requiring pharmacists to perform immunizations and that it revised its job description for pharmacists to include that as an essential duty. Stevens did not present adequate evidence to show that the immunization duty was not essential.

Next, the Second Circuit looked to see if there was a reasonable accommodation that would enable Stevens to perform the essential function of giving injections. The Court noted the important distinction that it is not whether Stevens could adequately perform other aspects of his job—he had to show that there was a way that he could perform the injection essential function. At the lower court, Stevens had argued that Rite Aid could have provided him “desensitization therapy, “ but there was no authority that providing medical treatment is a reasonable accommodation and Stevens could not show that he would have even gone through that therapy. Stevens also argued that he could have been transferred to another position that did not require him to give injections. However, the proof showed that Rite Aid offered him such a position and he chose not to take it. Finally, Stevens argued that Rite Aid could have either hired a nurse to give his required injections or paired him with another pharmacist who could do so. The district court found (and the Second Circuit agreed) that Rite Aid was not required to eliminate the essential function from Stevens’ position, nor were they required to force other employees to do it instead of Stevens. As such, Stevens failed to show that any reasonable accommodation existed that would allow him to perform the essential function of administering injections. Therefore, his ADA claim was properly dismissed.

Practical Takeaways.

This case, although with a unique set of facts, emphasizes the importance of clearly stating the essential functions of a position. Rite Aid was successful because it did a lot of things right:

  • It showed that it made a business decision to include immunizations as a service to its customers.
  • It amended the pharmacist job description to reflect the new essential job function.
  • It engaged in the interactive process—asking what, if any, reasonable accommodations would enable Stevens to get the job done.
  • Importantly, Rite Aid offered Stevens a transfer—which he turned down.

This case shows that there are some disabilities that employers simply cannot accommodate.  This decision also shows just how important it is for employers to engage in the interactive process with their employees to explore the possibilities and be able to document the decision making process.

whistleblowerIf you report your company for a federal securities violation, just how safe is your job? Curiously, that may depend on where you live. Recently, the Ninth Circuit weighed in, adding to a split among courts across the country regarding retaliation protection for employees who turn in their employers for violations of federal securities laws.

What laws?

The Sarbanes-Oxley Act (SOX) and the Dodd-Frank Act (Dodd-Frank) are aimed at encouraging reporting of unlawful accounting and auditing procedures within public companies. Both SOX and Dodd-Frank include specific protections for employees who engage in that type of reporting. SOX, which was passed in 2002 after the Enron scandal, protects whistleblowers who lawfully provide information about illegal financial practices to “federal agencies, Congress, or a person with supervisory authority over the employee.” Dodd-Frank was passed in 2008 after the subprime mortgage crisis and protects employees who provide information relating to a violation of the securities laws to the Securities and Exchange Commission (SEC).

So what’s the rub on whistleblower protection?

Courts have differing opinions on whether an employee who reports a violation of Dodd-Frank to supervisors within the company, but not to the SEC, is entitled to retaliation protection. In 2013, the Fifth Circuit in Asadi v. G.E. Energy (USA) adopted a narrow definition of whistleblower under Dodd- Frank. In Asadi, an employee was terminated after he made an internal company report of a possible securities law violation. He sued claiming that his firing was a violation of the whistleblower protection from retaliation under Dodd-Frank. The lower court held that since Mr. Asadi only reported the violations within his company, and did not report them to the SEC, he was not entitled to any protection as a whistleblower. The Fifth Circuit agreed and affirmed the dismissal of Mr. Asadi’s case.

Both the Ninth and Second Circuits, however, have taken a much broader view of the whistleblower protection. Those courts noted that Dodd-Frank specifically references SOX protection—which expressly protects reporting securities violations to a supervisor. For that reason, those courts held that the whistleblower protection covers both an employee who only reports problems internally and an employee who reports potential violations to the SEC. In the Ninth Circuit case, Somers v. Digital Realty Trust, a vice president made several reports to senior management regarding possible securities law violations and was terminated before he could report the issues to the SEC. He sued under the Dodd- Frank whistleblower protection provisions and the lower court ruled he was a protected whistleblower even for an internal complaint. The Ninth Circuit agreed that he was entitled to that protection and affirmed the lower court’s refusal to dismiss his case.

Now what?

Where does this split leave employers? Overall, whistleblowers, no matter the context, are usually sympathetic parties to both judges and juries. Common sense would hopefully guide most companies to encourage their employees to report any possible illegal acts that are occurring among their ranks. Despite the Fifth Circuit’s narrow interpretation, the safest course is to avoid even the appearance of retaliation against an employee who is reporting a possible securities law violation. In the event that happens, the employer may have bigger issues to address than the reporting party’s status as an employee.