Labor and Employment Law - Richard Gerakitis, James P. Ferguson, Jr., and Dorothy E. Larkin

• Publication year: 2001

Labor and Employment Lawby Richard Gerakitis^* James P. Ferguson, Jr.^** and Dorothy E. Larkin^***

I. Introduction

This Article surveys the 1999 and 2000 decisions of the United States Court of Appeals for the Eleventh Circuit in which the court addressed issues in the areas of labor and employment law. Specifically, this Article examines decisions by the Eleventh Circuit under the (1) Family Medical Leave Act ("FMLA");¹ (2) Age Discrimination in Employment Act ("ADEA");² (3) Title VII of the Civil Rights Act of 1964 ("Title VII");³ (4) Employee Retirement Income Security Act ("ERISA");⁴ (5) Fair Labor Standards Act ("FLSA");⁵ and (6) Americans With Disabilities Act ("ADA").⁶ During the past two years, the Eleventh Circuit decided numerous cases involving issues of interest concerning labor and employment law. Because of the volume of cases, this Article does not attempt to address each significant case decided by the Eleventh Circuit on these issues. Still, several particularly noteworthy cases, including cases of first impression, were decided by the Eleventh Circuit in 1999 and 2000.

II. Family Medical Leave Act

A. Termination of Employee on FMLA Leave

In O'Connor v. PCA Family Health Plan, Inc.,⁷ the primary issue, which was one of first impression in this circuit, regarded the scope of employment protection afforded by the FMLA; specifically, the Eleventh Circuit addressed "the circumstances under which an employer may terminate an employee on FMLA leave."⁸ Affirming the district court's grant of summary judgment to defendant employer, the court held that the FMLA does not preclude an employer from terminating an employee who is on FMLA leave if the employer can demonstrate it would have terminated the employee regardless of the employee's FMLA leave.⁹

Plaintiff O'Connor brought suit against PCA Family Health Plan, Inc. ("PCA"), "her former employer, claiming PCA violated the FMLA by terminating her employment and attendant benefits while she was exercising her statutory right to FMLA leave."¹⁰ The employer undertook a reduction in force ("RIF") while plaintiff was on FMLA leave. Plaintiff was one of the employees whose job was slated to be eliminated due to the RIF. After finding out that she had been terminated, plaintiff contacted her employer's human resources department to inquire about her termination. The human resources manager informed plaintiff that she had been inadvertently placed on the RIF list and offered to reinstate her employment. However, plaintiff declined reinstatement and sued her employer for violation of the FMLA.¹¹

The court concluded that, in terminating plaintiff's employment, her employer did not violate the FMLA, because plaintiff would have been terminated regardless of her FMLA leave.¹² The court noted that "an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period."¹³ Because plaintiff's job would have been eliminated by the RIF even if she had not been on FMLA leave, there was no FMLA violation. The court stated that the burden was on the employer to show that it would have taken the same action even if the employee was not out on FMLA leave.¹⁴ Given the evidence presented, specifically the loss of jobs resulting from the RIF, the court concluded that the employer had met its burden and dismissed plaintiff's claim.¹⁵

B. Eleventh Amendment Immunity for States

In Garrett v. University of Alabama at Birmingham Board of Trustees¹⁶ ("UAB"), two consolidated cases raised a question being litigated in various jurisdictions—whether a state is immune from suits by state employees asserting rights under certain federal laws.¹⁷ The federal laws in question were the FMLA, the ADA, and section 504 of the Rehabilitation Act of 1973.¹⁸ Reversing the summary judgment of the district court entered for UAB on plaintiffs' ADA claims, the Eleventh Circuit held that a state is not immune from suit under the ADA or the Rehabilitation Act.¹⁹ However, the court held that states do have Eleventh Amendment immunity from suit under the provision of the FMLA dealing with leave for a state employee due to her own serious health condition.²⁰

According to the Eleventh Circuit, even if the expression of congressional intent to abrogate states' sovereign immunity from FMLA claims was sufficiently clear (which the court declined to decide), Congress did not have authority to abrogate the sovereign immunity of the states on claims arising under the FMLA.²¹ The court reached this conclusion by finding that the FMLA's invocation of the Equal Protection Clause did not relate to the leave provision allowed an employee with a serious health condition.²²

III. Age Discrimination in Employment Act

In Chapman v. AI Transportation,²³ the Eleventh Circuit decided two important issues that arise frequently in job discrimination cases: (1) whether an employer can select its own criteria for making employment decisions; and (2) whether an employer can use subjective criteria in making employment decisions.²⁴ The court first reaffirmed that an employer may offer any honest explanation for its employment decision provided that the decision was not motivated by the employee's membership in a protected category.²⁵ Second, the court held that a subjective reason can constitute a legally sufficient legitimate, nondiscriminatory reason provided the employer "articulates a clear and reasonably specific factual basis upon which it based its subjective opinion."²⁶

In Chapman plaintiff filed a lawsuit alleging age discrimination after he was not hired for the position of Casualty Claims Manager. The focus of his ADEA case surrounded the employer's two legitimate, nondiscriminatory reasons for its failure to hire plaintiff.²⁷ First, plaintiff was not selected because of his lack of "stability in light of the number of jobs he had held in a short period of time," an objective reason.²⁸ Second, plaintiff's "poor interview" was the subjective reason he was not selected.²⁹ Plaintiff asserted in response to the employer's legitimate reasons that he had "established a record as evidenced by his performance appraisals which were a more immediate indication of his stability," and he offered evidence that several other candidates for the position had worked for numerous employers.³⁰ The Eleventh Circuit noted that plaintiff did not rebut the employer's legitimate reasons for its decision.³¹ Instead, plaintiff recast the employer's reasons. The court concluded: "Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason."³² The Eleventh Circuit found that the employer's justification for its employment decision was reasonable; therefore, the fact that plaintiff did not rebut the reason shows that plaintiff failed to create a genuine issue of pretext.³³

As for the subjective reason why the employer did not hire plaintiff, the court held that this was a legally sufficient, legitimate, nondiscriminatory reason.³⁴ The employer noted that plaintiff was not aggressive in his interview, and his answers were imprecise, especially with regard to his work history.³⁵ Plaintiff did not attempt to rebut the employer's subjective reason, nor did plaintiff properly rebut the employer's objective reason (job instability).³⁶ Because the employer backed up its subjective reason with "clear and reasonably specific bases," the Eleventh Circuit ultimately affirmed the district court's grant of summary judgment in favor of the employer.³⁷

IV. Title VII of the Civil Rights Act of 1964

A. Quid Pro Quo Sexual Harassment

In Mendoza v. Borden, Inc.,³⁸ the Eleventh Circuit addressed several factors in examining sexual harassment claims. In the absence of a tangible employment action,³⁹ what exactly constitutes conduct that is "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment'" includes both a subjective and an objective component.⁴⁰ After examining the evidence in the context of the totality of the circumstances, the court held the conduct alleged by plaintiff "falls well short of the level of either severe or pervasive conduct sufficient to alter [plaintiff's] terms or conditions of employment."⁴¹

Specifically, in Mendoza, the court analyzed the fact-intensive inquiry under the objective component of the sexual harassment analysis.⁴² The Supreme Court, along with the Eleventh Circuit, identified four factors to be considered in determining whether alleged conduct has "objectively altered" the terms and conditions of employment: "(1) the frequency of the supervisor's conduct; (2) the severity of his conduct; (3) whether his conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with employee's job performance."⁴³

In Mendoza plaintiff brought an action against her former employer alleging numerous discrimination claims in addition to her claim of sexual harassment under Title VII.⁴⁴ Her sexual harassment claim centered on four categories of conduct by her supervisor: (1) one statement by plaintiff's supervisor to plaintiff when he said "I'm getting fired up"; (2) one occasion when plaintiff's supervisor rubbed his hip against plaintiff's hip while touching her shoulder and smiling; (3) two instances in which her supervisor looked at her groin and sniffed and one instance of sniffing without looking at plaintiff's groin; and (4) in plaintiff's words, her supervisor's pattern of constantly following her and staring at plaintiff in a "very obvious fashion."⁴⁵

In reaching its conclusion that the supervisor's conduct was not actionable under Title VII, the court analyzed numerous sexual harassment cases from various circuits...