Glass houses and investigation of employment discrimination

Employee claims employer’s practices and or supervisors are discriminating. Employer investigates the claims and finds, not discrimination, but other facts showing conduct justifying termination. Did the employer retaliate? 

At least in the case below, the U.S. Seventh Circuit Court of Appeals said no. Given that employer investigations are a necessary part of good employment practices, the ruling makes sense. But employers might consider making sure that policies and practices are clear regarding how the employer may use information uncovered in an investigation.

The employees, university police officers, in Nichols v. Southern Illinois University, --- F.3d ---, 2007 WL 4553649 (7th Cir.), claimed retaliation arising from the University’s investigation into their complaints of discrimination.

They claimed, among other things, that they were denied “upgrades” (temporary promotions) based on race. Eventually, the officers wrote complaint letters to the University President leading to a University investigation regarding their complaints. The investigation uncovered facts and circumstances that resulted in formal dismissal charges against two of the officers. After separate hearings, the Merits Board found just cause for the charges against the two officers. 

After noting that the Merit Board, and not the University, actually dismissed the officers, the court observed that the officers were dismissed for reasons that were separate and distinct from the discrimination claims (reason such as gross insubordination, personal use of police cars, making false statements, failure to cooperate with an investigation, and “their baseless allegations against fellow officers.”). Their termination was based on their “objectively baseless allegations” against the other officers. Those officers’ retaliation claims, based on the Merit Board’s action, failed. 

Of course, the court addressed more than just retaliation. The court also considered a third officer’s claim of discrimination when he was placed on paid administrative leave pending a fitness-for-duty investigation arising from how he handles one particular situation. The court first determined that such paid administrative leave is not a materially adverse action. 

The court also rejected the officer’s discrimination claims based on “disproportionate” assignments to one, less desirable, campus rather than another. The court had little trouble dismissing this claim, particularly as the evidence showed the officers often requested assignment to the campus in question and that, in any event, the officers did not suffer a materially adverse employment action (change in compensation, etc.; reduced career prospects; or other negative change in the workplace). 

To me, however, the retaliation issue is the interesting part of the case. I believe it illustrates what is meant by not throwing stones in glass houses. 

FMLA: employer notice and the deemed eligible employee

A couple of recent decisions from the federal trial courts in the Middle and Eastern Districts of Pennsylvania show a gathering consensus that a controversial Family And Medical Leave Act (“FMLA”) regulation is not proper. The gathering is not complete, however, and employers need to continue appropriate practices while we watch the consensus evolve.

The question is whether an employee is “eligible” under the FMLA, 29 U.S.C. §§ 2601-2654?   The statute at 29 U.S.C. § 2611(2)(A)(ii), defines an eligible employee as one employed by employer for at least 12 months and who worked at least 1,250 hours in the 12 months before requesting leave. 

Detailed facts of the cases in review need not detain us: the common scenario is of an employee

meeting the first requirement (12 months employment) but not the second requirement (1,250 hours). In each case, the employee argued the regulation, 29 CFR § 825.110(d), required the employer to notify employee of the employee’s eligibility status and that failure to do so entitled the employee to FMLA rights. This is indeed what the regulation says, giving the employee an apparent unquestioned victory.

But in a clash of appearance against legal substance, the later prevailed. The recent trial court decisions, Erdman v. Nationwide Ins. Co., Civ. A. 1:05-0944, --- F. Supp. 2d ----, 2007 WL 1704648  (June 12, 2007) (not available on the public domain court website), and Boyd v. City of Philadelphia, Civ. A. 06-1524, 2007 WL 925908 (E.D. Pa. March 22, 2007) (praise to the Eastern District website), reveal why. Although the Third Circuit Court of Appeals has not addressed the regulation, three other Circuit Courts have. All have found that the Department of Labor exceeded its authority in creating this regulatory mandate. In particular, the “deemed eligible” regulatory right exceeds the plain statutory requirements. The regulation cannot make ineligible employees into eligible employees all in contravention of the FMLA’s clear terms.

Currently, however, the regulation is still in place. Employers will need to continue to follow ebst practices particularly in places where the impact of the regulation is unaffected by appeal court precedent.