Favorite Firing: When Will a Sympathetic Plaintiff Nevertheless Lose His Case?


club-2492011_640Being a judge is often a difficult role. In one recent case, Sepúlveda-Vargas v. Caribbean Restaurants, LLC (1st Cir. April 30, 2018), the First Circuit Court of Appeals clearly struggled with how the strict language of the Americans with Disabilities Act (ADA) impacted a sympathetic plaintiff. The first paragraph of the Court’s opinion contains the statement:

“No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.”

The Facts: Plaintiff Victor A. Sepúlveda-Vargas was an assistant manager for a Burger King franchise owned by defendant Caribbean Restaurants, LLC, in Puerto Rico. Mr. Sepúlveda-Vargas was attacked at gunpoint one day while making a bank deposit for his employer, and thereafter suffered from post-traumatic stress disorder and major depression.

Plaintiff requested a transfer to a restaurant in an area less subject to crime and also requested a fixed work schedule (rather than the rotating shift required for all assistant managers at Caribbean Restaurants). His managers accommodated plaintiff’s request for a while, but later determined they could not continue to accommodate the requests. Thereafter, Mr. Sepúlveda-Vargas resigned. Thus, this is technically a constructive discharge case, rather than a firing.

The District Court concluded that Mr. Sepúlveda-Vargas was not a qualified individual under the ADA, and therefore did not need to be accommodated. The lower court also concluded that the defendant employer had not retaliated against the plaintiff to create a hostile work environment justifying his resignation. As a result of these findings, the District Court granted defendant’s motion for summary judgment.

Specifically, the District Court found that working rotating shifts was an essential function of the assistant manager job with Caribbean, and, since Mr. Sepúlveda-Vargas could not work rotating shifts, he could not perform the essential functions of the job and was therefore not a qualified individual under the ADA.

The District Court recognized that even if the plaintiff was not a qualified individual under the ADA, the employer was obligated by law not to retaliate against the plaintiff for raising an ADA claim. Then the District Court addressed a long list of alleged retaliatory acts. The District Court stated that these did not rise to the level of actionable behavior by the employer.

A panel of three judges on the First Circuit looked at the alleged retaliatory behavior de novo, but agreed with the lower court’s findings. Thus, Mr. Sepúlveda-Vargas did not state a viable claim against Caribbean Restaurants, and the First Circuit affirmed the District Court’s ruling against Mr. Sepúlveda-Vargas.

The Moral: To be frank, if the District Court or Circuit Court had really wanted to, I think the judges could have ruled in Mr. Sepúlveda-Vargas’s favor, at least on the retaliation claim. Among the allegations made were that Mr. Sepúlveda-Vargas was scolded for requesting an accommodation, that he was forced to drop his pants to prove to his manager that he had a skin condition, and that he was called a “cry-baby” several times by his supervisors, . . .

While the District and Circuit judges in this case explained their rationale for not finding these allegations to amount to an actionable case for retaliation, other judges have found retaliation on facts no worse than those Mr. Sepúlveda-Vargas alleged.

From an employer’s perspective, it is heartening to see both a trial court and an appellate court follow the statutory language of the ADA in finding that an employee has not stated a cause of action. The judges gave the employer great deference in designing the job requirements for its assistant managers. It is also heartening to see the judges parse through allegations of retaliation and conclude that the alleged behavior was insufficient to support a constructive discharge case.

In this case, the First Circuit stated:

“Not all retaliatory actions, however, suffice to meet the ADA’s anti-retaliation provision. Rather, ‘a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ [citations omitted] Indeed, we have explained that ‘[f]or retaliatory action to be material, it must produce “a significant, not trivial harm,”’ [citations omitted], and that ‘actions like “petty slights, minor annoyances, and simple lack of good manners will not [normally] create such deterrence.”‘ [citations omitted]

But these cases often boil down to questions of fact. The decision could go either way, depending on the decision-maker. So this case is a strong reminder that employers should (1) engage in a respectful dialogue with an employee who requests an accommodation and (2) avoid retaliatory behavior after the request for an accommodation is made, whether it is accepted or denied.

When have you seen an employer prevail in a retaliation claim?

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Deconstructing Your Grievance Story


Last week I attended the Heartland Mediators Association’s conference featuring Eileen Barker as the speaker. Ms. Barker spoke about forgiveness. In a single post, I can’t do justice to her day-and-a-half seminar about forgiveness. And she only touched on a part of her twelve-step forgiveness process. So I will focus on one step in the process—deconstructing our grievance stories.

As a mediator, an attorney, and a Human Resources professional, I have heard many, many grievance stories over the years. In the legal context, the grievance story takes the form of someone who feels wronged who wants to punish the person or institution that wronged them—whether it be the other person in a car accident, the owner of the premises where they fell, the manager who fired them, or any other situation causing them pain or grief.

ForgivenessWorkbook coverWe all tell stories to find the meaning in what is happening in our lives. According to Ms. Barker, there are three essential elements in a grievance story:

1. The aggrieved individual interprets an event in a personal way, as something intended to impact him or her in a negative way.

2. The aggrieved individual blames someone else for how he or she feels.

3. The aggrieved individual tells a story in which he or she is the victim, powerless to control the situation.

Note that these are my articulations of the three elements. For more, see Ms. Barker’s Forgiveness Workbook: A Step by Step Guide, available here.

Let’s take a workplace example: I’m thinking of a time when I did not get a job I thought I was well- qualified for. The hiring manager told me that he “would sleep better at night” if he hired the other candidate. I immediately took that statement personally—I interpreted the remark to mean that he believed me unqualified and he would worry about me in the role. I felt mortified to think he thought I was unqualified and shamed that I had even put myself forward for the position. And I blamed him for making me feel that way. Of course, I was the victim—there was nothing I could do to change the situation, because he had the power to decide who to hire.

Deconstructing the story involves changing the three elements of the grievance story:

1. Looking for another way to tell the story so it’s not about the aggrieved individual.

2. Looking for the positive intention in the other person’s action, not blaming them.

3. Turning the story so that the aggrieved individual is the hero, not the victim, to give him or her back the power.

In my example above, I had to re-frame my story to tell myself that the hiring manager was looking for the best person for the job. I had to accept that on paper the other candidate had more experience than I did, even if I believed I was best able to take the job where it needed to go in the future. By retelling the story, I could see the hiring manager’s positive intention—he wanted the best person for the job, even if I disagreed with who that was. And I had to find ways to take back my power. Within a few weeks, I accepted another position that allowed me to grow professionally, even if it wasn’t the position I had first applied for and that I really wanted.

Deconstructing my story took time. I was quickly able to move on from my initial feelings of mortification and shame. But it took a couple of years for me to see the advantages of the situation I’d found myself in and to realize that I grew from the experience and that maybe I was better off than I would have been had I been thrust into the role I’d applied for.

This deconstruction of our stories is part of how we come to forgive. I later reported to this hiring manager and we built a good working relationship. I forgave his unfortunate comment that he “would sleep better at night” if he hired the other candidate (though obviously, I never forgot it).

When have you told yourself a grievance story about a situation in your life? How did you deconstruct it?

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Workforce Planning in 2018: An Ever More Urgent Need


HR signIn the late 1990s, I was a part of my employer’s early efforts at workforce planning. At the time, workforce planning seemed to be a discipline in its infancy.

Our workforce planning was mostly about numbers: How many employees could we afford in various divisions of the company? Would retirements in our aging workforce cause problems in our ability to produce product?

It took a few years for our company’s leaders to move beyond the demographics to consider the skill sets needed in a changing environment. Which skill sets did we have too much of? Which would be required in the next decade, and could we grow those skills internally or would we have to hire to fill our needs?

I argued at the time that workforce planning was the strategic layer behind every Human Resources discipline. I said workforce planning was the practice of defining who the right employees were, when and where they would be needed in the workforce, and all the tools needed to hire and keep those employees—the compensation and benefits and perks, the employee relations and employment branding practices, the training and leadership development, etc. Everything designed to get the right people in the right jobs at the right time was a part of workforce planning.

Unfortunately, some of our corporate managers never could make the shift beyond thinking about workforce planning as headcount. Those managers themselves were part of the skill sets we no longer needed—we would have to seek out more visionary leaders to take their places. It took years and years of arguments to move to a more strategic view of workforce planning.

I was intrigued to read a January 30, 2018, article on SwipeClock.com by Cary Snowden, entitled Defining Your 2018 Workforce Management Strategy. In the twenty or more years that workforce planning has been around, what has changed?

Mr. Snowden starts by defining workforce planning:

“The definition of workforce planning describes a continual business planning process. It’s a long-term, ongoing effort that expands as the organization grows. This isn’t a quick fix, so settle in and prepare for the long haul.”

Clearly, Mr. Snowden sees workforce planning as a strategic component of Human Resources and general corporate management work. He says it is not just a short-term effort, but “also includes forward-looking plans for organization growth, new talent acquisition, and management of outsourced third-party services.”

Change the Organization’s Design to Get Different Results; But Be Careful . . . You Will Get What You DesignBut it appears that the same barriers I faced in the late 1990s are still around. Organizations focus on immediate needs, rather than a long-term look at what workers they will need, even though “Workforce planning is a long-term game that requires patience and finesse,” according to Mr. Snowden. Gathering the data is hard and requires robust information systems and mining capabilities.

But data-collection and -mining systems have come a long way in two decades. My workforce planning efforts were based largely on an Excel spreadsheet. I could capture demographic data from our HRIS system, but despite my desire to move on to skills development, defining the skills of the current workforce and predicting the needs of the future were largely beyond my capabilities. As Mr. Snowden puts it, my company was largely operating on hunches, when good data were needed.

The five-step strategic process that Mr. Snowden outlines is similar to what we tried to do back in the late 1990s:

  1. Establish a strategic direction for your workforce, based on the changing skills needed for the products and services your company plans to offer and the financial models you are using.
  2. Analyze the existing workforce and determine gaps, whether those gaps are in numbers or skills.
  3. Create an action plan to address the gaps.
  4. Implement the plan.
  5. Monitor, analyze, and evaluate . . . which includes circling back as your strategic plan for the organization changes and more changes are needed in your workforce.

Described in these “simple” five steps, the planning process for workforce planning is no different than any other planning process. What makes workforce planning so challenging and unique is the difficulty of having the vision and accuracy to predict what skills your business needs and what you need to do to find, attract, and retain high-caliber people who will achieve your business goals, while at the same time relinquishing the people who can no longer contribute as needed.

According to Alan Mellish, in an article published on March 27, 2018, on HCI.org’s blog, entitled Workforce Planning in a Fast-changing Economy: Common Pitfalls to Avoid, here are some things to watch for:

  • Waiting for all the data (you’ll never have it)
  • Not aligning your workforce planning with your business needs
  • Not prioritizing the roles that will make the most difference for your business going forward
  • Failure to integrate data from inside and outside the company

Today’s trends such as economic growth, trade disputes, changes in labor and other regulations are factors to include in workforce planning. Every business will see different impacts from these trends and from issues specific to your industry and market.

The labor market is tight these days, particularly in highly desired skill sets. Over 6 million job openings are unfilled in the current market. You will have to do a better job at workforce planning than your competitors. Are you ready?

What successes and failures has your business had with workforce planning?

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What Employers Should Expect on Immigration Issues for the Remainder of 2018


USCIS logoOne of the biggest impacts that the Trump Administration has had on the workplace is in the area of immigration. Although the need for foreign workers remains a huge issue for many U.S. employers, particularly those needing skilled technical workers, the Trump Administration has made it more difficult for foreign nationals to obtain the appropriate visas.  Even intracompany transfers are taking longer to process.

The Harris Poll conducted a survey in November and December 2017. Data from that survey indicated:

  • 70% of employers say having a global workforce is very or extremely important to their talent strategy
  • 53% of employers expect to hire more foreign nationals in 2018
  • 85% of employers say the current U.S. immigration system has impacted their hiring and retention strategies
  • 44 percent of employers say U.S. visa applications have become more difficult (up from 35 percent last year)
  • 58 percent of employers say their Requests for Evidence have increased
  • 42% of employers say the biggest change they have noticed over the last year has been increased foreign national anxiety and questions

See here for more from Envoy, a global immigration services provider, regarding the Harris Poll survey.

In today’s low unemployment environment, immigrant workers are one of the few ways employers have to increase their applicant pools—a necessary part of growing their businesses. Nevertheless, given the Trump Administration’s predilections, which begin with the President and his cabinet members, it is likely that employers will continue to struggle in their efforts to hire immigrant labor.

I have spoken with immigration attorneys who confirm that U.S. Citizenship and Immigraton Services have placed increased emphasis on Requests for Evidence, which has significantly slowed down the granting of visas for well-qualified foreign nationals.

Here are some likely immigration actions and decisions in the remainder of the year:

  • By the end of June 2018, the U.S. Supreme Court is likely to issue a decision on the Trump Administration’s travel ban. This decision might clarify some of the limits of the Executive Branch in the area of immigration policy.
  • Congress and the President could strike a deal any time on the Dreamers (undocumented workers brought into the U.S. as children), which is likely to permit Dreamers to remain in the U.S., though with further actions to limit immigration in other areas or to enhance border security.
  • USCIS is likely to continue to scrutinize foreign nationals seeking work authorizations, particularly those seeking H1-B visas.
  • Similarly, there are likely to be more restrictions on visas for family members of foreign nationals already authorized to work in the U.S.
  • 2000px-U.S._Immigration_and_Customs_Enforcement_(ICE)_Logo.svgMore workplace raids by Immigration and Customs Enforcement officers are likely to continue to increase the numbers of workplace raids, leading to more deportations of illegal workers.

For more on these efforts, see here and here.

Given heightened activity in the field of immigration enforcement, employers need to increase their vigilance on complying with immigration laws. Employers also need to be more proactive in seeking the foreign workers they need to be competitive. Here are a few specifics actions that employers should consider:

  • Conduct internal audits of I-9 forms, preferably with the help of outside counsel, so that any problems are properly addressed. A strong audit can provide a “safe harbor” and/or reduce fines if the government later determines that unauthorized workers are in fact employed by the company.
  • Start any visa applications in support of foreign nationals well in advance of the time the company needs the employee to begin working. Leave time to respond to Requests for Evidence, which USCIS is more likely to send than in prior years.
  • Monitor developments on the Administration’s travel ban, Dreamers, and other issues that might impact your workplace. Be prepared to act immediately to comply with any changes.
  • And remember that the U.S. immigration system is based on very detailed regulations, so be sure to use experts with knowledge of the changing immigration bureaucracy.

Increased scrutiny of immigrant visas and documentation impacts not only the ability to hire the types of skilled workers needed in a timely fashion, but also the morale of those already employed. Employers in areas most likely to face workplace raids or I-9 audits should address their employee relations issues as well as the staffing implications of the Administration’s policies.

What immigration issues have you experienced in your workforce recently?

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Resetting Goals—An Introspective Approach Yields Best Results


to-do-list-749304_640This year is almost 25% complete. When I came to that realization a few days ago, I panicked—I haven’t accomplished nearly a quarter of my plan for 2018.

I started off strong in January, completing two major projects that were due in February. But then a series of family health issues knocked me off track. I’ve managed to stay on top of daily responsibilities, and even to make progress on one major project that has an April deadline. However, I am far behind pace on another major project I had hoped to complete by June, and I don’t think I’m going to be able to make up the lost time.

I will have to reset some of my goals for the year.

Periodically, I find it is good to conduct a thorough self-assessment. My purpose when I do so isn’t usually to reassess annual goals, which is my current immediate need. I usually am trying to examine my life on a longer-term basis. This week, however, I decided that before I restructured my 2018 goals, I should look at the big picture of my life. I was intrigued when I saw the article “50 Tough Questions You Never Ask Yourself, But Should,” on Inc.com, by Marla Tabaka, and thought it would be a good vehicle for self-assessment.

Ms. Tabaka makes the point that personal growth begins with introspection. She says,

“If you want results, begin with what’s on the inside instead of pushing to control what’s on the outside.”

And then she lists fifty excellent questions for consideration.

The question I am focused on at the moment is #10:

“What are three things I want to pay closer attention to in 2018?”

This question addresses the need I have at the moment.

My answer:

  • My own health
  • The health of other family members
  • My current primary project (the one that’s behind schedule)

I was glad to note that the health issues that had preoccupied me for the last two months were, in fact, high priorities for the year. I was also unhappy to see that I was letting my other top priority slide.

In an effort to regain momentum on that primary project for the year, I might have to let other projects slip, including some of my regular obligations. I don’t like that reality, but there it is. Once I acknowledge that reality, I can make the necessary changes in how I spend my time to achieve the best results I can this year. And I can consciously decide which goals for 2018 will have to fall by the wayside, rather than letting the results happen without any thought on my part.

I notice that this blog is not one of my top three priorities for the year. I hope it will remain high enough on my list to continue my twice-a-month posting schedule. But if I put it on hiatus again (as I did last summer), I will tell readers honestly—it is slipping lower on my priority list.

What priorities do you need to change in your life? Which of the fifty questions in the article strike closest to home for you?

 

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Healthcare Providers Need to Engage in Systems Thinking


wheelchair-1629490_640

I have written before (see here and here) about the adage “Every system is perfectly designed to get the results it gets,” a saying that apparently originated in the medical world.

In recent weeks, I have been personally involved in a medical situation that shows that healthcare providers need to bear this adage in mind. In the case I’ve seen, each doctor and nurse has done his or her specialist’s job well, but no one has considered the patient’s whole person or household environment. The result is that the patient and his family are suffering more than necessary.

This patient fell and incurred an orthopedic injury to his leg. The Emergency Room doctors and nurses did an excellent job of stabilizing him, then sent him home with the instruction to contact an orthopedic surgeon because surgery was likely to be necessary.

So the patient went home. With a spouse who weighed 70 pounds less than him. To a house without a bedroom on the main floor and with only a half bath on this floor that this patient couldn’t fit into with his leg immobilized. He managed to get upstairs, but could not get in or out of bed unassisted. Because he is up multiple times during the night, neither he nor his spouse has had a good night’s sleep since the accident. There is only so much that other family members and friends can do to help.

No one in the Emergency Room made any inquiries about the home situation the patient was going to, nor offered any help once the person left the ER.

The next morning, the patient contacted the orthopedic surgeon, someone who is highly recommended in the community. That office showed no sense of urgency in scheduling an orthopedic consult, even though they had the X-rays from the ER. It took pushing by the patient to get an appointment to see the surgeon that same week. After the office visit, surgery was scheduled fairly promptly, but it still took more than a week after the accident to repair the injury.

The surgery went fine. But in the Recovery Room, the nurses had the same approach as the ER staff had had—get the patient stabilized and out of here. No inquiries about the home situation or how to deal with the patient’s other medical conditions, now worsened by his lack of mobility.

In the post-op follow-up ten days after surgery, the patient mentioned another injury incurred during the accident (to his arm). The orthopedic surgeon took a brief look and ruled out a bone problem, but he made no inquiries that would diagnose a tendon or ligament issue. It was as if his approach was “I do bones; that’s it.”

During the time since the accident, the patient has seen two other specialists for other conditions. Both of them focused solely on their specialty, without considering the impact of immobility on the patient or his spouse.

Meanwhile, the patient and family members have learned to be more insistent on getting questions answered, such as “will this new treatment further reduce his mobility?” and “what can he do to improve his rest at night?”

disabled-728521_640But wouldn’t it be better if each of the doctors and nurses asked such questions and considered this patient to be more than a leg or a bladder or a prostate? Wouldn’t it be better if the medical profession saw the patient as a whole person?

The changes to the healthcare system in the last decade or so have only exacerbated the tendency to see patients as parts instead of a whole. Obamacare has not helped. Republican proposals have not helped.

Expertise exercised in a vacuum ceases to be expertise. And the system is perfectly designed to get the result it gets.

Have you experienced similar issues in your own medical situations?

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Managing Sexual Harassment Claims in the #MeToo Era


gear-67138_1280Now that I am only posting twice a month, I have less opportunity to comment on news issues that affect corporate management. But the #MeToo movement accusing many public figures in the entertainment and political world of sexual harassment has had an effect on other workplaces as well that is important to recognize.

I won’t list all the men (and occasional woman) outed for their past behavior. What is more important is how corporate managers and Human Resources professionals should respond going forward.

With the increased visibility of sexual harassment in a variety of workplaces, more employers are likely to see claims raised by their employees. The same was true in the weeks after Anita Hill’s allegations of harassment during the 1991 Clarence Thomas Senate confirmation hearings. Even though Senate confirmed Justice Thomas’s nomination to the Supreme Court, sexual harassment became a topic in many workplace discussions that year.

In some ways, corporations are ahead of politicians in addressing harassment issues. Ever since the Supreme Court’s decision in Meritor Savings Bank v. Vinson, 106 S. Ct. 2399 (1986), sexual harassment claims have been serious risks in the workplace.

And ever since the companion cases of Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), employers have had a framework for how to minimize their exposure to claims of harassment based on the creation of a hostile work environment. Elements in that framework include:

  • Having a strong anti-harassment policy
  • Making it easy for victims to raise claims to someone other than the alleged harasser without fear of retaliation
  • Training all employees regularly on what the policy is and how to use it
  • Taking every claim seriously and investigating thoroughly, and
  • Taking appropriate action, if harassment is found.

And yet, even with these policies and practices in place, navigating harassment claims remains a minefield.

In the past thirty-some years, I have handled complaints against everyone from high-level executives to frontline employees. The #MeToo movement emphasizes that no one gets a free pass on harassing behavior.

I have dealt with everything from completely false accusations, to mentally ill employees alleging harassment because they are paranoid, to workplace flirtations and dating gone wrong (probably the most common problem), to quid pro quo demands in exchange for advancing a woman’s career, and even cases involving rape of a coworker.

When an allegation of harassment first arises, there is no way to know which situation one is dealing with. Sometimes the facts become clear very quickly, but other times the truth is hidden in murkiness. The standard is not “beyond a reasonable doubt” but what is “more likely than not”—is there a credible complaint of harassment and what actions are necessary to stop it from occurring again?

When the allegations of harassment are false, the male (99% of alleged harassers are male) feels wronged and his career can be damaged through no fault of his own. And when the allegations of harassment are true, the woman feels disbelieved and disrespected by the slow pace of a thorough investigation. When the allegations cannot be proven one way or the other, no one feels the process has worked. Whatever the outcome of the investigation, coming to the wrong answer, or not addressing the problem with appropriate action, taints the workplace.

So what are managers to do?

The best way to handle a claim of harassment has not changed in the #MeToo era from the steps outlined in Burlington Industries and Farragher. Take every claim seriously. Treat all parties involved with respect. Do your best to find the truth.

And above all else, make it clear from your own behavior that harassment in the workplace—harassment of any type—will not be tolerated. Stop the jokes, whether they be sexual or racial or homophobic. Treat every employee in the manner you want your loved ones to be treated at work.

In addition, in the age of smartphones and social media, recognize that anything you say or do might someday become public. Would you be proud to have your language or behavior show up on someone’s Facebook feed?

Once you as a manager are modeling the appropriate behavior, expect your employees to do the same.

It all comes down to company culture. Make sure yours does not tolerate harassment of any type.

What changes have you made to how you handle sexual harassment claims because of recent publicity on the issue?

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