Wednesday, April 15, 2015

Marijuana: District of Columbia Law & Causes of Action



I.                   Pertinent Legislation

The District of Columbia has taken the significant step of legalizing limited possession and cultivation of marijuana outright.  On November 1, 2014, D.C. voters approved Initiative 71, which arguably became law on February 26, 2015.  However, the United States Congress included a provision in the last spending bill prohibiting D.C. from spending funds to “enact” the law.  Further complicating matters, D.C. has taken the position that the law was actually “enacted” when Initiative 71 passed, and no further money needs to be spent for the decriminalization to take effect.  While there remains some controversy over whether Initiative 71 can be “enacted” by the D.C. Council, Mayor Muriel Bowser has strongly indicated that she will enforce the will of the voters.  See Mike DeBonis, Aaron C. Davis, “Bowser: Legal Pot Possession to Take Effect at Midnight in the District”, Washington Post (Feb. 25, 2015) (available here).  The District of Columbia also permits physicians to prescribe medical marijuana for any debilitating condition which they think would respond favorably to it.  Dept. of Health Notice of Proposed Rulemaking Vol. 60 No. 14 (March 29, 2013) (available here).

II.                So Is Marijuana Legal?

The possession, cultivation, and use of small amounts of marijuana is legal under District of Columbia law.  More particularly, the following activities are legal in the District of Columbia for adults over the age of 21:
·         Possessing two ounces or less of marijuana;
·         Giving one ounce or less of marijuana to another person over the age of 21 as long as there is no exchange of goods or services;
·         Growing up to six marijuana plants in their home, no more than three of which may be mature;
·         Possessing marijuana paraphernalia (e.g., “bongs”); and
·         Using marijuana on private property.

The District of Columbia has interpreted these laws strictly – for example, plants must be grown “inside” the home and may not be grown in an outdoor garden or on the roof.  Furthermore, the sale of any amount of marijuana by a private resident remains illegal.  Only licensed medical marijuana distributors may sell marijuana legally in the District of Columbia.  Finally, marijuana may not be used “[a]ny place to which the public is invited”.  This means that it may not be used, for example, in nightclubs, bars, or other businesses which are “open to the public.”  It is not clear, at this point, whether marijuana may be used in private, “members only” clubs. 

However, it is important to remember that marijuana remains illegal under federal law.  The United States government has listed marijuana on “Schedule I” of the Controlled Substances Act, 21 U.S.C. § 801 et seq.  Drugs listed on Schedule I are those which are considered to have “a high potential for abuse,” “no currently accepted medical use,” and “lack accepted safety.”  Other Schedule I substances include Opioids and Opium derivatives, such as Heroin, as well as other drugs with severe hallucinogenic, stimulant, or depressant properties.  Cannabimimetic agents, such as marijuana, are a separate category of drugs and are listed separately on Schedule I. 

One consequence of the fact that marijuana remains illegal on the federal level is that it falls within the scope of the Drug Free Workplace Act, 41 U.S.C. § 81.  The Drug Free Workplace Act applies to employers who: 1) have contracts valued at $150,000.00 or more with the federal government; or 2) receive any amount of grant money.  Covered employers are required to publish policies which prohibit the use of illegal drugs, discipline those who violate its policy, and report drug-related crimes in the workplace.  Sanctions for non-compliance include the termination of federal contracts or grant moneys, giving employers a strong incentive to avoid any appearance of tolerating drug use.

III.             Potential Causes of Action

There are two primary claims which may arise when an individual is terminated for the use of marijuana in the District of Columbia.  Recreational users may have a claim for wrongful termination in violation of public policy under Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C. 1991) and Carl v. Children’s Hospital, 702 A.2d 159 (D.C. 1997) (en banc).  Adams and Carl arguably stand for the proposition that employers may not terminate employees for reasons which violate public policy, including exercising a statutory right.  See Carl, 702 A.2d at 160.  While citizens in D.C. now have a circumscribed “right” to make recreational use of marijuana by virtue of the fact that it is no longer illegal to do so, it is not clear that this “right” can support a cause of action for wrongful termination.  D.C. courts, like other courts, have narrowly interpreted the tort of wrongful termination, and may not be willing to extend it to cover the use of marijuana, as will be discussed below.

Medical marijuana users, meanwhile, may have a claim under the D.C. Human Rights Act, which prohibits discrimination against, among other protected categories, individuals with disabilities.  See D.C. Code § 2-1401.11(a).  This obligation extends to reasonably accommodating the disabilities of employees.  See Grant v. May Dep’t Stores Co., 786 A.2d 580, 583 (D.C. 2001).  Many medical conditions treatable with marijuana, such as glaucoma and epilepsy, qualify as “disabilities” under the D.C. Human Rights Act.  The determinative issue in such cases is likely to be whether marijuana use is a “reasonable” accommodation to an individual’s disability.

The District of Columbia has not yet addressed this, and many other, issues surrounding the implications of its medical marijuana laws.  That said, an employer faced with the loss of federal grants or contracts for permitting the use of medical marijuana could likely argue that the requested accommodation constituted an “undue burden”.  This is especially true if other medications are capable of treating the individual’s condition.  In the absence of such contracts or grants, and assuming that an employee was not “under the influence” at work, it would undoubtedly be argued that a medical marijuana employee discharged for use of medical marijuana can maintain a claim for failure to accommodate a disability in the event that they were terminated or disciplined for off-duty marijuana use. 

D.C. courts have not yet had the opportunity to pass on whether such claims are permissible.  However, most courts to address the issue have concluded that, absent a statutory command to the contrary, employers remain free to set their own drug policies and to discipline or terminate employees who violate those policies.  SeeCoats v. Dish Network, 2013 COA 62 (Colo. Ct. App.  2013), cert. granted (Court held that medical marijuana is not a  “lawful activity” under CO statute because activity must be legal under  both state and federal law); Casias v. Wal-Mart, Inc. 695 F. 3d 248 (2012) (Court held that the Michigan Medical Marijuana Act does not regulate private employment); Roe v.Teletech Customer Care Management LLC,  171 Wash 2d 736(Wash. Sup. Ct. 2011) (Court held that Washington’s  Medical Use of Marijuana Act did not regulate private employer’s conduct  and employee who used medical marijuana had no claim for wrongful  discharge); Beinor v. Industrial Claim Appeals Office, 262 P.3d  970 (Colo. Ct. App. 2011), (Court found that Colorado’s medical  marijuana amendment provided an affirmative defense to criminal  prosecution but did not preclude denial from unemployment benefits after  plaintiff was terminated for violating employer’s zero tolerance drug  policy); Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries,  224 P.3d 518 (Ore. 2010) (Court found that under Oregon's employment  discrimination laws, employer was not required to accommodate employee's  use of medical marijuana); Ross v. RagingWire Telecommunications, Inc., 174  P.3d (Cal. 2008)(Court held that state law cannot completely legalize  marijuana for medical use because it is illegal under federal law); but see Arizona Revised Statutes 36-2801, 2813 (2104) (“An  employer may not discriminate against a person in hiring, termination  or imposing any term or condition of employment….for a registered  qualifying patient's positive drug test for marijuana components or  metabolites, unless the patient used, possessed or was impaired by  marijuana on the premises of the place of employment or during the hours  of employment.”). 



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Marijuana: Maryland Law & Causes of Action



I.                   Pertinent Legislation

Maryland has several pieces of legislation which govern the possession and use of Marijuana for both medical and non-medical purposes.  The first piece of legislation is Maryland’s 2003 Compassionate Use Act HB 702 (2003)/SB 502 (2003), which was amended in 2011 by SB 308 (2011)/HB 291 (2011).  The Compassionate Use Act provided a “medical necessity defense” which could be used to limit criminal sentences for marijuana possession.  This act, however, was limited, and Maryland courts noted that it “clearly contemplates a conviction of use or possession of marijuana.”  Jefferson v. State, 883 A.2d 251, 254 (Md. Ct. Spec. App. 2004).  In other words, “the General Assembly did not put its imprimatur on the medical use of marijuana.”  Id. (internal quotation omitted).  The 2011 amendment expanded these protections, indicating that individuals who can provide “clear and convincing evidence” that they need marijuana for medical reasons are “not guilty” of any crime.  See SB 308 (2011)/HB 291 (2011).

The second statute, enacted with the passage of HB 1101 in 2013, is Md. Code Ann. Health-General § 13-3301 et seq., which established the Natalie M. LaPrade Medical Marijuana Commission.  The Commission was established effective October 1, 2013 to regulate the distribution of medical marijuana in Maryland and to study the medical efficacy of marijuana.  However, the statute, as originally enacted, limited distribution to teaching hospitals.  Due to the federal prohibition on marijuana, no teaching hospital participated in the program.  Accordingly, the legislation was amended in 2014 by the passage of SB 923/HB 881 to permit an expanded list of entities to prescribe and distribute marijuana.  The amendments also authorize the Commission to issue fifteen growing licenses.  

Finally, and most significantly, Maryland Governor Martin O’Malley signed SB 364 on April 14, 2014 which removed criminal penalties for possession of small amounts of marijuana.  This act, which became effective on October 1, 2014, replaced criminal penalties with civil fines.  

II.                So Is Marijuana Legal?

In Maryland, the law distinguishes between “medical” marijuana and marijuana used for many other purposes.  Like other prescription drugs, marijuana is only legal if the an individual possesses a valid prescription.  Possession of marijuana without a prescription – for example, recreational marijuana – remains prohibited by Maryland law.  The bill signed by Governor O’Malley did not “legalize” marijuana – it merely removed criminal penalties for possession of small amounts of marijuana and replaced those penalties with civil fines.  Possession of larger amounts of marijuana can still lead to criminal penalties, and, even for possession of smaller amounts, repeat offenses can lead to increased fines and mandatory drug treatment.

Perhaps more importantly, Marijuana remains illegal under federal law.  The United States government has listed marijuana on “Schedule I” of the Controlled Substances Act, 21 U.S.C. § 801 et seq.  Drugs listed on Schedule I are those which are considered to have “a high potential for abuse,” “no currently accepted medical use,” and “lack accepted safety.”  Other Schedule I substances include Opioids and Opium derivatives, such as Heroin, as well as other drugs with severe hallucinogenic, stimulant, or depressant properties.  Cannabimimetic agents, such as marijuana, are a separate category of drugs and are listed separately on Schedule I. 

One consequence of the fact that marijuana remains illegal on the federal level is that it falls within the scope of the Drug Free Workplace Act, 41 U.S.C. § 81.  The Drug Free Workplace Act applies to employers who: 1) have contracts valued at $150,000.00 or more with the federal government; or 2) receive any amount of grant money.  Covered employers are required to publish policies which prohibit the use of illegal drugs, discipline those who violate its policy, and report drug-related crimes in the workplace.  Sanctions for non-compliance include the termination of federal contracts or grant moneys, giving employers a strong incentive to avoid any appearance of tolerating drug use.

III.             Potential Causes of Action

a.      Recreational Use

Although it has been decriminalized, the Maryland legislature has chosen, at least for the time being, to leave in place certain penalties for the possession of “small” amounts of marijuana for non-medical use.  The situation which now obtains with regard to non-medical marijuana is thus analogous to that which existed in 2004 with regard to medical marijuana – that is, the legislature has substantially reduced the penalties associated with the drug, but has not give its “imprimatur on the…use of marijuana.”  Jefferson, 883 A.2d at 254.  As such, and especially given that marijuana remains illegal on the federal level, it is unlikely that an employee who uses recreational marijuana, and is subsequently disciplined or terminated by her employer, will be able to bring a successful lawsuit challenging the employer’s action.

b.      Medical Marijuana

Unlike non-medical marijuana, marijuana which is prescribed by a doctor for a qualifying medical condition has been largely legalized, at least under Maryland state law.  In Maryland, an employer may not discriminate against any individual because of that individual’s disability, and may also not fail or refuse to make a reasonable accommodation for the known disability of an otherwise qualified employee.  See Md. Code Ann. State Gov’t. § 20-606(a)(1), (4).  Many medical conditions treatable with marijuana, such as glaucoma and epilepsy, qualify as “disabilities” under the Maryland statute.  The determinative issue in such cases is likely to be whether marijuana use is a “reasonable” accommodation to an individual’s disability.

Maryland has not yet addressed this, and many other, issues surrounding the implications of its medical marijuana laws.  That said, an employer faced with the loss of federal grants or contracts for permitting the use of medical marijuana could likely argue that the requested accommodation constituted an “undue burden”.  This is especially true if other medications are capable of treating the individual’s condition. 

In the absence of such contracts or grants, and assuming that an employee was not “under the influence” (i.e. impaired) at work, they will undoubtedly attempt to maintain a claim for failure to accommodate a disability in the event that they were terminated or disciplined for off-duty marijuana use.  Md. Code Ann. State Gov’t § 20-606(a)(4).


Maryland courts have not yet had the opportunity to pass on whether such a claim is permissible.  However, most courts to address the issue have concluded that, absent a statutory command to the contrary, employers remain free to set their own drug policies, and may discipline or terminate employees who violate those policies.  SeeCoats v. Dish Network, 2013 COA 62 (Colo. Ct. App.  2013), cert. granted (Court held that medical marijuana is not a  “lawful activity” under CO statute because activity must be legal under  both state and federal law); Casias v. Wal-Mart, Inc. 695 F. 3d 248 (2012) (Court held that the Michigan Medical Marijuana Act does not regulate private employment); Roe v.Teletech Customer Care Management LLC,  171 Wash 2d 736(Wash. Sup. Ct. 2011) (Court held that Washington’s  Medical Use of Marijuana Act did not regulate private employer’s conduct  and employee who used medical marijuana had no claim for wrongful  discharge); Beinor v. Industrial Claim Appeals Office, 262 P.3d  970 (Colo. Ct. App. 2011), (Court found that Colorado’s medical  marijuana amendment provided an affirmative defense to criminal  prosecution but did not preclude denial from unemployment benefits after  plaintiff was terminated for violating employer’s zero tolerance drug  policy); Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries,  224 P.3d 518 (Ore. 2010) (Court found that under Oregon's employment  discrimination laws, employer was not required to accommodate employee's  use of medical marijuana); Ross v. RagingWire Telecommunications, Inc., 174  P.3d (Cal. 2008)(Court held that state law cannot completely legalize  marijuana for medical use because it is illegal under federal law); but see Arizona Revised Statutes 36-2801, 2813 (2104) (“An  employer may not discriminate against a person in hiring, termination  or imposing any term or condition of employment….for a registered  qualifying patient's positive drug test for marijuana components or  metabolites, unless the patient used, possessed or was impaired by  marijuana on the premises of the place of employment or during the hours  of employment.”).  

Please be sure to visit our website at http://RobertBFitzpatrick.com

Friday, March 13, 2015

Sweeping ADA Ruling By The Fourth Circuit Should Make Employers Anxious



Yesterday, March 12, 2015, a panel of the 4th Circuit, in Jacobs v. N.C. Admin. Office of the Courts, reversed district court Judge Terrence Boyle of the Eastern District of North Carolina.  No. 13-2212, 2015 U.S. App. LEXIS 3878 (4th Cir. March 12, 2015)  Several disability rights organizations filed as amici in support of the plaintiff.  The Court, with Judge Floyd writing for the panel, found that a reasonable jury could have concluded that the plaintiff had been discriminated against on the basis of her disability (social anxiety disorder), and so overturned the district court’s grant of summary judgment. 

The plaintiff in Jacobs was a deputy clerk of the court who allegedly suffered from social anxiety disorder.  As an initial matter, the Court took judicial notice of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.  Quoting from that source, the Court noted that social anxiety disorder is characterized by a “marked and persistent fear of…social or performance situations in which [a] person is exposed to unfamiliar people or to possible scrutiny by others.” Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, 456 (4th ed. 2000).  

As a deputy clerk, Plaintiff had been assigned to provide customer service at the courthouse’s front counter.  This job required social interaction with the court’s “customers”.  Plaintiff asserted that her mental illness, social anxiety disorder, hindered her ability to perform this job.  Plaintiff requested that her disability by accommodated by reassigning her to a role with less direct interpersonal interaction.  The courthouse never responded to Plaintiff’s request for an accommodation.  Instead, the courthouse terminated Plaintiff’s employment three weeks after she made her request for an accommodation.  Plaintiff brought suit in the United States District Court for the Eastern District of North Carolina, arguing that her termination violated the Americans with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq.  On September 3, 2013, Judge Boyle granted summary judgment on Plaintiff’s claim for disability discrimination in favor of the courthouse. 

The Fourth Circuit reversed the lower court’s grant of summary judgment.  While the primary thrust of the opinion deals with the Court’s construction of the ADA, its holdings on the summary judgment standard are equally consequential, and bear careful analysis.  As an initial matter the Court, relying on the Supreme Court’s per curiam opinion in Tolan v. Cotton, held that Judge Boyle had erred by “failing to consider all the evidence in the record” when assessing the defendant’s motion for summary judgment.  134 S. Ct., 1861, 1866 (2014).  The Court discusses summary judgment at length before emphatically concluding that Judge Boyle went astray.  The Court found that Judge Boyle repeatedly drew inferences contrary to the evidence and misapplied the summary judgment standard.  For example, the Court, quoting Tolan, held that the District Court “neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the non-moving party.”  Jacobs, 2015 U.S. App. LEXIS 3878 at *17.  At another point in its opinion, the Court found that the record, taken in the light most favorable to the plaintiff, demonstrates just the opposite of what Judge Boyle had found.  Id.  One can anticipate that the Jacobs opinion will be heavily relied upon, within the Fourth Circuit, in opposing future summary judgment motions from the defense in employment cases.  And, most certainly, the Jacobs opinion is a strong and clear message to the District bench in the Fourth Circuit that the standards for summary judgment must be scrupulously followed.

The Court’s substantive holdings are manifold, and some of the more striking are discussed below.  That said, the Court’s holding in Jacobs is a thoroughgoing exegesis on the Americans with Disabilities Act, and does not lend itself well to summary.  Any practitioner in this area would be well advised to carefully review the opinion in its entirety. 

1.      “Interacting With Others” is a Major Life Activity

One of Plaintiff’s central contentions was that her social anxiety disorder substantially limited her ability to interact with others and therefore was a disability under the ADA AA.  The defense argued that “interacting with others” is not a major life activity.  As an initial matter, the Court noted that the EEOC had interpreted “interacting with others” as a major life activity.  See 29 C.F.R. § 1630.2(i)(1)(i).  A such, the Court determined that the defense’s argument constituted a challenge to the EEOC’s interpretation of the ADA.  Jacobs, 2015 U.S. App. LEXIS 3878 at *22.  Applying Chevron deference, the Fourth Circuit held that the Congress had deliberately left an interpretive gap for EEOC to fill and found that EEOC’s interpretation was reasonable.  Id. at *23.  The Court went on to note that “[f]ew activities are more central to the human condition than interacting with others” and that “it is certainly reasonable for the EEOC to conclude that interacting with others [is a major life activity.”  Id.  As such, while the Court’s holding is couched as deference to an agency interpretation of the ADA, it comes near to an express holding, in its own right, that interacting with others is a major life activity. 

2.      The Court Explains the Amended ADA’s Definition of “Substantially Limits”

The defense argued that plaintiff’s social anxiety disorder had not substantially limited her ability to interact with others.  The Court first noted that the amended ADA had expressly rejected the need to show that the plaintiff was “significantly restricted” in a major life activity.  The Court assumed that the EEOC’s regulations, which define a substantially limiting impairment as one that “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population” were reasonable.  Jacobs, 2015 U.S. App. LEXIS 3878 at *24 citing 29 C.F.R. § 1630.2(j)(1)(ii).  In a footnote, the Court noted that some three percent to thirteen percent of individuals will experience social anxiety disorder at some point in their life.  Jacobs, 2015 U.S. App. LEXIS 3878 at *26 n.14.  The Court relied upon this data to establish that social anxiety disorder limits those so diagnosed “as compared to most people in the general population.”  Id.

The Court then moved to the evidence the defense had proffered to establish that plaintiff had not met the “substantially limits” standard established by the EEOC.  For example, the defense asserted that the plaintiff’s social interaction on Facebook demonstrated that she was not substantially limited in interacting with others.  The Court responded that “[a] person need not live as a hermit in order to be ‘substantially limited’ in interacting with others.”  Jacobs, 2015 U.S. App. LEXIS 3878 at *24.  The Court went on to note that the plaintiff’s Facebook activity may constitute a “mitigating measure” in that it could be construed as “a form of exposure therapy by which plaintiff attempted to overcome her anxiety through social interaction that was not face-to-face and not in real time”.  Id. at *25.  The Court found that, under the ADA as amended, it was not permitted to consider such mitigating measure in determining whether Plaintiff was substantially limited in her ability to interact with others.  Similarly, in a footnote, the Court indicated that if the plaintiff, took longer than necessary to complete her microfilming work and procrastinated in returning to the front desk, as the defense had alleged, “this may constitute avoidant behavior consistent with a diagnosis of social anxiety disorder.”  Jacobs, 2015 U.S. App. LEXIS 3878 at *26 n.13. 

3.      A Temporal Proximity of Three Weeks Alone Can Establish Causation

Three weeks had elapsed between plaintiff’s request for an accommodation and her termination.  The Court found that “[s]uch close temporal proximity weighs heavily in favor of finding a genuine dispute as to causation.”  Id. at *30.  In so holding, the Court relied on Haulbrook v. Michelin N. Am., Inc., which held that a twenty-one day period between request for accommodation and the plaintiff’s termination created a genuine dispute as to causation.  252 F.3d 696, 706 (4th Cir. 2001).

4.      Piling On is Proof of Pretext

The defense told the plaintiff at the time of her termination that she was being fired for several reasons.  Thereafter, in response plaintiff’s EEOC complaint, the defense listed yet more reasons for her termination.  And, then, before Judge Boyle, the defense came forward with, as the Court phrased it, “still more reasons.”  The Court, in the face of this piling on, stated: “Although this constellation of justifications is not internally inconsistent, many of the purported justifications were not raised at the time of termination,” and thus proof of pretext.  Id. at *32.

5.      The Failure to Document is Evidence of Pretext

After its remarkable finding that multiple, consistent reasons for termination, albeit offered at different times, could provide evidence of pretext, the Court went on to state: “Even more striking is that no one at the [employer] documented any of the justifications (including those raised at the time of termination) in any way.”  Id. at *32 (emphasis in original).  The Court concluded that the undocumented and uncorroborated justifications are pretextual. 

6.      Don’t Lie to the Court

While the Court stops short of accusing Defendant of lying, it does recount that the “constellation” of reasons for Plaintiff’s termination were allegedly reported to Plaintiff’s supervisors by one Ms. English.  Tellingly, the Court notes that Ms. English testified that she had never discussed the plaintiff’s performance with the supervisors. Id. at *32 n.16.  The Court blandly states that Ms. English’s testimony “creates a genuine dispute of fact.”  Id.

7.      Those Tape Recordings Can be Devastating

Somehow, four supervisors met with plaintiff to terminate her, and it never occurred to any of them that the plaintiff might be recording the conversation.  Indeed, she was. And, the Court relied heavily on the actual recordings in finding that there were numerous genuine factual disputes.  Id. at *18 to *19.  Fortunately for Plaintiff, North Carolina, the state in which the conversation was recorded, is a so-called “one-party” state, in which a conversation may legally be recorded so long as at least one party to the conversation consents to the recording.

8.      The Court’s Articulation of an Essential Function of the Job is Quite Helpful to Plaintiffs

The defense argued that being able to work at the front counter was an essential function of the deputy clerk position.  The Court disagreed.  In so holding, the Court relied on the fact that many other employees were available to work at the front counter, and that Plaintiff’s inability to do so would not negatively impact the office.

9.      A Reasonable Accommodation May Require Job Restructuring

The Court found that restructuring plaintiff’s job so that she worked fewer days at the front counter was reasonable, pointing out that this proposed accommodation did not require the employer to increase the workload of plaintiff’s coworkers. 

10.   The Court Finds the Failure To Discuss Plaintiff’s Accommodation Request Could be Found to be an Act of Bad Faith

The Court noted the Fifth and Sixth Circuits have both held that terminating an employee without discussing a reasonable accommodation is evidence of bad faith.  Id. at *46 citing Rorrer v. City of Stow, 743 F.3d 1025, 1040 (6th Cir. 2014); EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 622 (5th Cir. 2009)).  Here, three weeks after submitting her request for an accommodation, and with no discussion of that request in the interim, plaintiff was terminated without any discussion of her accommodation request. 

              11. Conclusion

Jacobs is a remarkable, and potentially far-reaching decision.  While only time will tell if it will create a lasting impact on jurisprudence under the ADA, it will surely be often-cited by plaintiff’s counsel in any ADA case.  Indeed, the breadth of the opinion will likely fuel many substantial disputes for years to come.  For those who, back in the day, referred to the Fourth Circuit as the most conservative Court in the country, the Jacobs decision resoundingly acclaims that it is a new day in Richmond. 

Friday, February 13, 2015

Plenty of Cents But Little Sense - Courts Struggle With the Fair Labor Standards Act


Despite its swiftly-approaching eightieth birthday the Fair Labor Standards Act is as relevant today as it was when passed in 1938.  Despite its vintage, the last year has seen D.C.-area courts struggle with a number of complex and consequential questions of interpretation under the FLSA which have the potential to inform litigation nationwide.  A smorgasboard of the most important and most interesting issues addressed by D.C.-area courts in the last year is provided below.

I.                Equitable Tolling

In Cruz v. Maypa, 773 F.3d 138 (4th Cir. 2014), the Court, Judge Gregory writing for the panel, held that that the failure to post the required FLSA notice in the employer’s home could equitably toll the statute of limitations, and remanded for discovery.  The panel’s decision was consistent with the Fourth Circuit’s 1983 decision in Vance v. Whirlpool Corp., 716 F.2d 1010 (4th Cir. 1983) where the Court held that the EEOC filing requirement under the Age Discrimination in Employment Act could be equitably tolled by the employer’s failure to post an ADEA notice of rights. The plaintiff was a domestic servant from the Philippines and spoke Tagalog.  The defense argued that posting of the notice would have been futile because the poster provided by the Wage and Hour division is not available in Tagalog.  In response, the Court stated "Besides being offensive, this argument turned on a factual issue which must be construed in Cruz's favor...Cruz has not alleged that she speaks no English, only that her English is limited.  Furthermore, this argument would lead to the absurd result of affording fewer protections to non-English speaking employees."

II.             Individual Liability

In Martin v. Wood, 772 F.3d 192 (4th Cir. 2014), the Fourth Circuit, Judge Niemeyer writing for the panel, dismissed on Eleventh Amendment grounds, an FLSA suit brought by an employee against supervisors in their individual capacities of a state-operated hospital for allegedly improperly refusing to authorize overtime for hours worked in excess of a forty-hour week.  The Court seemingly indicated that if the supervisors were alleged to have been acting in an ultra vires manner or if they had acted to serve a personal interest, the FLSA action could proceed against them in their individual capacities.  Based on the pleadings before the Court here, the Court concluded that the plaintiff was simply attempting to circumvent Eleventh Amendment immunity.

III.           Preemption

In Barton v. House of Raeford Farms, 745 F.3d 95 (4th Cir. 2014), Judge Niemeyer writing for the panel, the Court held that the plaintiff’s claims under a state wage law were preempted by the Labor Management Relations Act, because their disputes about pay were essentially a disagreement as to how to calculate their “hours worked” under a collective bargaining agreement.  Here, the collective bargaining agreement was silent as to how compensable time was to be calculated in a donning and doffing circumstance.  The custom and practice had been to compensate only for “line” time and not for “clock” time.  As a result, the panel, repeatedly noting that the CBA stated that it was the “exclusive” agreement, even though the employer allegedly had represented at the time of hire that it would pay “clock” time, the Court held that such claim was preempted.

IV.            Timely Payment of Wages

In Martin v. U.S., 117 Fed. Cl. 611 (2014), the Court of Federal Claims (Chief Judge Campbell-Smith) addressed the Federal Government's partial shutdown which lasted from October 1 through October 16, 2013, resulting in a five-day delay in paying some federal workers.  The issue before the Court was whether such a short delay in the payment of wages could nonetheless give rise to an FLSA claim for failure to timely pay non-exempt employees.  The Court, applying the Supreme Court's "On Time" mandate found in Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 707 (1945) declined to adopt the government's proposed "totality of the circumstances" test and instead held that "timely payment was the usual rule."  Given that the federal employees had all been paid, albeit a few days late, the claim here is a claim for liquidated damages.  The Court did not address that issue except to note the good faith test. 

V.              The Tucker Act

In Abbey v. United States, 745 F.3d 1363 (Fed. Cir. 2014), the plaintiffs pursued an FLSA claim in the Court of Federal Claims, invoking the Court's jurisdiction under the Tucker Act.  The Government, in a reversal of what has been its position for three decades, argued that the Supreme Court’s decision in U.S. v. Bormes, 133 S. Ct. 12 (2012) requires the overturning of the longstanding holding that the Tucker and Little Tucker Acts apply to damages cases against the federal government under the FLSA.  The Court, Judge Taranto writing for the panel, rejected this argument. 

VI.            Full Payment

In Marshall v. Safeway, Inc., 88 A.3d 735 (Md. 2014), the Maryland Court of Appeals held that where an employer made an unauthorized deduction of $29.64 from an employee’s pay in response to two writs of garnishment, it was not paying all the compensation that was due to the employees, which constituted a violation of the Maryland Wage Payment and Collection Law.

VII.         Overtime and Wage Theft

In Peters v. Early Healthcare Giver, Inc., 97 A.3d 621 (Md. 2014), the Maryland Court of Appeals (Judge Adkins writing for the Court) addressed enhanced damages where the Employer failed to pay overtime, which the Court characterized as “Wage Theft.”  First, the Court rejected the employee's argument that there should be a presumption in favor of granting enhanced damages.  Next, the Court addressed whether there was a basis for a legitimate, bona fide, dispute, stating that an incorrect legal belief may form the basis for a legitimate, bona fide, dispute. When asked to establish guiding principals that the trial courts should follow when exercising their discretion as to whether, and in what amount, to award enhanced damages, the court's solution was to simply say that "the trial courts are encouraged to consider the remedial purpose of the MWPCL when deciding whether to award enhanced damages to employees.”  Finally, the Court affirmed that the WPCL contemplates a maximum award of three times the unpaid wage, not three times the unpaid wage in addition to recovery the unpaid wages. 

VIII.      Misclassification

In Mock v. Fed. Home Loan Mortg. Corp., No. 1:13-cv-01292, 2014 U.S. Dist. LEXIS 97259 (E.D. Va. July 15, 2014), aff’d, No. 14-1782, 2014 U.S. App. LEXIS 24569 (4th Cir. Dec. 30, 2014), the plaintiff, an Engineering Senior and Engineering Tech Lead, claimed that he had been improperly and willfully classified as exempt under the FLSA.  The Court granted the employer’s motion for summary judgment, on the bases that the plaintiff is a highly compensated employee who performs non-manual work, and that he also qualified for the administrative employee and computer professional exemptions under the FLSA.

IX.           Rounding

In Hughes-Smith v. Crown Linen Serv., Inc., No. 1:13-cv-1048, 2014 U.S. Dist. LEXIS 28415 (E.D. Va. March 5, 2014), the Court (Judge Cacheris) approved the employer's policy whereby it rounded down employee time from one to seven minutes and rounded up employee time from eight to fourteen minutes.  The employer tracked hours in fifteen minute intervals. 

X.              Collective Action Certification/Decertification

In Lafleur v. Dollar Tree Stores, Inc., No. 2:12-cv-00363, 2014 U.S. Dist. LEXIS 69886 (E.D. Va. May 20, 2014), the Court (Judge Jackson) reaffirmed its denial of defendant’s motion to decertify the collective action which it had certified under the FLSA.  Among other reasons, the Court indicated that the decision of the Fourth Circuit in Monahan v. Cnty. of Chesterfield, 95 F.3d 1263 (4th Cir. 1996) was distinguishable because Monahan does not deal with the similarly situated standard for collective action certification.  

XI.           State Legislation


On September 19, 2014 the Mayor signed the D.C. Wage Theft Prevention Act, B20-0671, which is projected to go into effect, following Congressional review, on February 26, 2015.  Among its provisions, the Act requires employer notices (and allows for tolling of the SoL in their absence), permits class actions, amends the D.C. Wage Payment & Collection law to cover white collar, executive, and professional employees previously excluded, and provides that fee awards “shall” be made using adjusted Laffey rates.  

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Friday, December 12, 2014

Do You Hear What I Hear? Accent Discrimination in the Workplace.


            Workplace discrimination on the basis of national origin, of which accent discrimination is often a component, rose by 76% between 1997 and 2011.  See Associated Press, “Discrimination Against Foreign Accents: A Growing Problem”, AOL Jobs (Nov. 30, 2012) (available here).  In Wilkie v. Geisinger Sys. Servs., the plaintiff, a native of Germany who spoke fluent English with a German accent, brought a claim for national origin discrimination against her employer following her termination.  No. 3:12-cv-580, 2014 U.S. Dist. LEXIS 132162 (M.D. Penn. Sept. 18, 2014).  Plaintiff argued that the employer terminated her on the basis of her German origin.  Plaintiff claimed that her supervisors had told her that they were “not fond of Germans”, made at least ten jokes about Adolf Hitler, sometimes referred to Plaintiff as “Little Hitler”, ordered her not to speak German in the workplace even on personal calls, and mocked her accent.  In one written exchange, one of Plaintiff’s supervisors mocked a conversation he had with Plaintiff by stating that it was just “yada, yada…stutter, stutter”. 

In analyzing the significance of the remarks from her supervisor about disliking Germans and comments regarding Adolf Hitler, the Court invoked the “stray remarks” doctrine.  This doctrine provides that “stray remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision.”  Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 514 (3d Cir. 1992).  In the Third Circuit, such statements are evaluated based on their temporal proximity to the adverse action, the relationship of the speaker to the plaintiff, and the context in which the remarks were made.  Id.  The Court found that some of the remarks, which – viewing the facts in the most favorable light to Plaintiff – may have been made only several months prior to her termination were potentially relevant, but that others more remote in time were not relevant.  The Court strongly implied that these “stray remarks” comparing Plaintiff to Hitler and establishing that the supervisors who terminated Plaintiff were “not fond of Germans” would have been insufficient, by themselves, to overcome summary judgment.

More relevant to the Court was the fact that Plaintiff was prohibited from speaking her native language in the workplace for any purpose.  As an initial matter, numerous courts and commentators, have recognized that “language may be used as a covert basis for national origin discrimination.”  Wilkie, 2014 U.S. Dist. LEXIS 132162 at *24 (citing Abbasi v. SmithKline Beecham Corp., 2010 WL 1246316 (E.D. Pa. 2010)); see also Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1195 (9th Cir. 2003) (“Accent and national origin are obviously inextricably intertwined in many cases.”); Wesley v. Palace Rehab. & Care Ctr., L.L.C., 2014 WL 956016, at *5 (D.N.J. 2014) (discussing when accent-based discrimination constitutes national origin versus racial discrimination in the context of a 42 U.S.C. § 1981 claim); Le v. City of Wilmington, 736 F. Supp, 2d 842, 855 (D. Del. 2010) aff'd, 480 F. App'x 678 (3d Cir. 2012) (differentiating “disparaging remarks about one's language skills and national origin” from situations where “an employee's heavy accent or difficulty with spoken English can be a legitimate basis for adverse employment action where effective communication skills are reasonably related to job performance”) (quoting Yili Tseng v. Florida A & M Univ., 380 Fed. App'x. 908, 908-10 (11th Cir. 2010)). Patreese D. Ingram, “Are Accents One of the Last Acceptable Areas for Discrimination”, Journal of Extension, Vol. 49, No. 1 (Feb. 2009) (available here) (describing the incidence of accent discrimination, and citing studies showing that an individual’s perceived race impacts the perception of their accent); Russell, A. “Thou shalt not speak: Accent discrimination in the American workplace” (2002) (available here) (noting that “accent discrimination” is “one of the final acceptable forms of racism”).     

Indeed, the Ninth Circuit has held that courts must take a “very searching look” at adverse employment decisions allegedly based on an individual’s accent interfering with their ability to communicate.  See Fragante v. City & Cy. Of Honolulu, 888 F.2d 591, 595 (9th Cir. 1989).  In Fragante, the Ninth Circuit acknowledged that an accent could constitute a legitimate reason for an adverse action if it interfered “materially” with communication.  Id. at 596-97 (“There is nothing improper about an employer making an honest assessment of the oral communications skills of a candidate for a job when such skills are reasonably related to job performance”) (emphasis in original).  However, in so doing, the Court cautioned that alleged poor communication skills would appear to be an “easy refuge” for an employer whose actual motive was national origin.  Id. at 596.  In Fragante, the Ninth Circuit affirmed the lower court’s determination that the defendant had legitimate concerns about Plaintiff’s ability to communicate.  Defendant established this through the contemporaneous written evaluation of Plaintiff by two interviews, each of whom indicated that Plaintiff was likely to be difficult to understand over the phone.  Id. at 598.  This, the Court held, was sufficient factual basis to constitute a legitimate, non-discriminatory, reason for his non-selection.   

While it remains unclear how an employer is to determine at what point difficulties communicating become “material”, at least one court has suggested that this standard should be objective, rather than subjective.  In Xieng v. Peoples Nat’l Bank, the Defendant suggested that an adverse action should be deemed non-discriminatory if the ability to speak English is a job requirement and the employer had a “good faith belief that…lack of communication skills would materially interfere with job performance.”  821 P.2d 520, 579 (Wash. Ct. App. 1991).  The Court rejected this view, noting that the “‘good faith belief’ standard is inconsistent with the heavy burden Fragante places on employers in accent discrimination cases.”  Id. at 580.  Instead, the Court found that “[g]ood faith alone is not enough”, explaining that “the employer’s honest assessment must have a factual basis” to qualify as a legitimate, non-discriminatory reason.  Id. at 580 n.4. 

Returning to Wilkie, the Court, after recognizing the connection between accent and national origin discrimination, turned to the guidelines promulgated by the EEOC regarding “English-only” policies in the workplace.  See 29 C.F.R. 1606.7.  Noting that the EEOC’s guidance distinguishes between policies which require that employees speak English “at all times” or “only at certain times”.  Wilkie, 2014 U.S. Dist. LEXIS 132162 at *25-*26, quoting Reyes v. Pharma Chemie, Inc., 890 F. Supp. 2d 1147, 1163 (D. Neb. 2012).  In brief, the EEOC guidance provides that English-only policies are permissible “at certain times” when justified by business necessity.  29 C.F.R. 1606.7(b) (“Policies applied only at certain times are permitted, but only where the employer can show the rule is justified by business necessity.”) (internal quotations omitted); see also  Roman v. Cornell Univ., 53 F. Supp. 2d 223, 237 (N.D.N.Y. 1999) (“Several courts have held that an English-only policy designed to reduce intra-office tensions is a legitimate business reason.”) (collecting cases).

While Defendants apparently conceded that the guidelines applied, the Court noted that this issue was not settled.  In Garcia v. Spun Steak, the Ninth Circuit rejected the validity of Section 1606.7, finding that the EEOC’s interpretation was contrary to the text of Title VII.  998 F.2d 14801, 1489-90 (9th Cir. 1993).  In Garcia, the Ninth Circuit held, contrary to the EEOC’s guidance, that the implementation of an English-only policy “does not inexorably lead to an abusive environment for those whose primary language is not English[.]”  Id.  Emphasizing that “[w]hether a working environment is infused with discrimination is a factual question” the court refused to create a per-se rule regarding English-only policies.  In so doing, the court rejected 29 C.F.R. 1606.7, explaining that “[n]othing in the plain language of section 703(a)(1) supports EEOC’s English-only rule Guideline.” 

By contrast, the Tenth Circuit found that “the very fact that the City would forbid Hispanics from using their preferred language could reasonably be construed as an expression of hostility to Hispanics. At least that could be a reasonable inference if there was no apparent legitimate purpose for the restrictions.”  Maldonado v. City of Altus, 433 F.3d 1294, 1305 (10th Cir. 2006).  Interestingly, in Maldonado, the Tenth Circuit noted, in dicta, that “hostility would be a reasonable inference to draw from a requirement that an employee calling home during a work break speak only English.”  Id.  In other words, “[t]he less apparent justification for speaking English, the more reasonable it is to infer hostility”.  Id. 

In Wilkie, the Court noted that there was no need to determine the weight afforded to section 1606.7 because Defendants did not have a blanket policy – only Plaintiff was prohibited from speaking German on personal calls.  Wilkie, 2014 U.S. Dist. LEXIS 132162 at *28.  The Court found that, if true, such an individual restriction would be “indicative of discrimination.”  Id.  Noting the record was unclear as to the particulars of this restriction, the court found that it constituted an issue of material fact which was in genuine dispute.

            Following this conclusion, the court addressed several additional arguments raised by Defendant in support of its motion for summary judgment, including Defendant’s claim that supervisors who terminated Plaintiff “are of German descent.”  Id. at *34.  As an initial matter, the Court reiterated the basic principle, put forth by the plaintiff, that “being a member of a class does not preclude one from discriminating against that class.”  Id.; see also Castaneda v. Partida, 430 U.S. 482, 499 (1977) (“Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.”).  Although the Court did not explore this line of reasoning, it is worth noting that the plaintiff argued that there is a difference between an individual who has some “ancestry” of a particular sort, and an individual who is a foreign national.  Wilkie, 2014 U.S. Dist. LEXIS 132162 at *34. 

            Ultimately, the Court held that the “stray remarks” submitted by plaintiff, coupled with the other evidence of discrimination was sufficient, “though barely”, to defeat summary judgment.  In so doing, the Court opined that although Defendants may argue at trial that Plaintiff was disciplined and terminated in accordance with policy, that Plaintiff need not argue that point here.  Plaintiff’s burden at summary judgment, which she met, was to show that “the factors discussed above combine to create a reasonable inference that an invidious discriminatory reason was more likely than not a motivating or determinative cause of Defendants decision to fire Plaintiff.”  Wilkie, 2014 U.S. Dist. LEXIS 132162 at *35 (internal quotations omitted). 

            Other courts which have addressed the problem of language-based national origin discrimination in the workplace have taken a similar approach.  In Architect of the Capitol v. Iyoha, the Board of Directors of the Office of Compliance of the United States Congress affirmed the Hearing Officer’s determination that Complainant, a Nigerian man with a Bachelor’s degree in English and Associate Degrees in Mass Communication and Journalism, had been discriminated against on the basis of his national origin.  Nos. 11-AC-138, 11-AC-129 (Bd. of Dirs. Dec. 11, 2014) (available here) (accessed Dec. 12, 2014).  In Iyoha, the evidence demonstrating that Complainant had been discriminated against came primarily in terms of comments about his proficiency in English and his accent. 

            In Iyoha, the Complainant, the Help Desk Manager for Respondent’s Production Management Branch, was transferred from his customer-service related position into a project-management position, allegedly due to poor performance.  In fact, much as in Wilkie, Complainant had consistently received favorable performance reviews until he came under the management of an individual who disliked his accent.  Iyoha’s new manager made comments such as “[t]hank goodness [Complainant] sent me an e-mail because I can never understand him when he talks to me” and “We have a Branch Chief from Iran, engineers from Taiwan and Germany who do not speak English as their first languages.  What can you expect?”  Following Complainant’s reassignment, he was replaced by an individual who spoke English as his first language.  The Hearing Officer found, and the Board agreed, that the circumstances of Iyoha’s reassignment gave rise to an inference of discrimination.

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