500 Eagle Gate Tower
60 East South Temple
Salt Lake City, Utah 84111
Recently, in the case discussed below, the Tenth Circuit Court of Appeals acted much like a speech therapist by correcting the language of the lower court and more clearly articulating the law regarding retaliation claims under Section 504 of the Rehabilitation Act of 1973, a federal law that protects against disability discrimination, and under the Free Speech clause of the Constitution??s First Amendment.
Starting in 1996, Janet Reinhardt worked as a speech-language pathologist for the Albuquerque Public Schools (APS). During the time relevant to this case, she worked full-time at Rio Grande High School. APS grants a standard contract to speech pathologists with a full-time caseload, and an extended contract to those who have more than a full-time caseload.
Beginning in 1998, Reinhardt regularly complained to APS administrators that she was not receiving accurate and timely caseload lists of students needing her services. She believed that inaccurate lists resulted in qualified special education students not receiving speech and language services. Because APS did not respond to her repeated complaints about inaccurate caseload lists and corresponding deprivation of services to qualified students, she consulted an attorney and filed an Individuals with Disabilities Education Act (IDEA) complaint against APS in October 2005 with the New Mexico Public Education Department. The state conducted an investigation and ordered APS to take corrective action.
Additionally, Reinhardt advocated for the rights of a particular high school student. She advocated for many years for him to receive a neuropsychological evaluation and, after he finally received the evaluation, she advocated for him to receive specialized reading instruction during the 2003-2004 academic year.
Before the 2004-2005 school year, Reinhardt had received extended contracts. However, near the end of August 2004, the assistant principal at Rio Grande High assigned her to work only with 9th grade students that year. Initially her caseload list comprised only six students, well below a full-time caseload. As a result, APS reduced her to a standard contract in September 2004. When her caseload increased during the 2005-2006 school year, she requested a contract increase, which APS denied.
District Court Dismisses Pathologist??s Claims as Unprotected Mumblings
Reinhardt filed claims against APS in federal district court in New Mexico for retaliation in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. ?? 794, and for retaliation in violation of the First Amendment of the United States Constitution. As to the first claim, the district court agreed with APS that Reinhardt had not shown that APS subjected her to any materially adverse action, that APS provided legitimate, non-discriminatory reasons for the reduction in her contract, and that she failed to show that these reasons were pretext for unlawful discrimination. Regarding her second claim, the district court ruled that her speech was made pursuant to her official duties and, therefore, was not protected by the First Amendment. Consequently, the district court dismissed both claims without the need for a trial or further analysis of the issues. Reinhardt appealed the dismissal of her claims to the Tenth Circuit Court of Appeals, which governs Utah as well as New Mexico.
To establish a basic retaliation claim under the Rehabilitation Act, Reinhardt was required to show: (1) that she engaged in protected activity; (2) that she suffered a materially adverse action either after or contemporaneous with her protected activity; and (3) a casual connection existed between the protected activity and the adverse action. Assuming she can establish a basic claim, APS must provide a non-retaliatory explanation for the adverse action. Reinhardt then must show that the explanation is pretext to prevail on her claim.
While the district court found that Reinhardt had not established a basic retaliation claim under the Rehabilitation Act, the Tenth Circuit disagreed. Reinhardt presented three types of protected activity: (1) her longstanding complaints about APS??s failure to deliver services to disabled students by failing to provide timely and accurate caseload lists; (2) her filing the state complaint; and (3) her advocacy for the specific high school student. While protected activity must go beyond merely assisting disabled students, the Court stated that advocating for the protection of their rights in all three of these forms is protected activity.
The court then turned to the issue of whether Reinhardt suffered a materially adverse action. Reinhardt argued that APS??s reduction of her extended contract to a standard contract, its later refusal to increase her standard contract to an extended contract, and its assignment to her of only 9th grade students were all adverse actions. APS countered that Reinhardt??s assignment to serve all of the 9th grade students was not adverse nor was her reduction to a standard contract because she was still employed under a full-time contract with the same benefits, and she was not entitled to an extended contract. The court agreed with Reinhardt that her assignment to serve only 9th grade students directly resulted in a salary decrease because she no longer qualified for an extended contract. While the court was careful to state that a denial of overtime opportunity is not always a materially adverse action, it decided that, under the facts of this case, a reasonable employee might have been dissuaded from advocating for disabled students knowing that her workload and salary would be reduced.
Next, the court found that Reinhardt had shown the requisite casual connection between her advocacy for disabled students and the adverse actions taken against her. The court noted that Reinhardt had continuously complained about inaccurate caseloads. Also, she advocated for the one specific high school student during the 2003-2004 school year. Given the normal summer break in the school year, the court concluded that her assignment to teach only 9th grade students in August and her resulting salary reduction in September of the following academic year were close enough to show a potential casual connection. It also found that APS??s refusal of her request for an extended contract in January 2006 occurred shortly after she filed the state complaint in October 2005.
After determining that Reinhardt had shown a basic retaliation claim, the court then examined APS??s explanation for reassigning her to only teach 9th graders and analyzed whether Reinhardt had shown that a reasonable jury might find that such explanation was merely pretext for unlawful retaliation. APS stated that it had assigned Reinhardt only 9th grade students during the 2004-2005 school year because she had valuable experience transitioning middle school students to high school through her work during the previous school year. However, at least one of the other speech pathologists had worked with 9th grade students and APS never explained why Reinhardt could not be assigned other students in addition to 9th graders. Indeed, even one of the school administrators admitted that it was reasonable for Reinhardt to fear for her job given the low number of 9th graders on her initial caseload list.
The court also examined APS??s reason for refusing to extend Reinhardt??s contract in January 2006 after her caseload increased again. Although APS explained that her schedule did not warrant an extended contract, the court noted that there was a factual dispute about how APS calculated extended contracts. It also gave credence to Reinhardt??s allegations that APS was deliberately maintaining inaccurate caseloads to artificially reduce her workload because the state investigation conducted at about that time concluded that APS was maintaining inaccurate lists.
For these reasons, the court decided that Reinhardt was entitled to a trial on her retaliation claim under the Rehabilitation Act, and it sent the case back to the district court to conduct that trial.
Tenth Circuit Interprets Parameters of Protected Speech
In deciding whether Reinhardt??s speech was protected under the First Amendment, the court narrowly focused on what is often the threshold question in a free speech claim: whether she spoke as a private citizen or a public employee. In two famous cases, Pickering v. Board of Education and Garcetti v. Ceballos, the United States Supreme Court ruled that while public employees have certain rights to speak on matters of public concern, that right is balanced against the state??s interest in regulating speech to promote the efficiency of the public service performed by its employees, and employee speech made pursuant to an employee??s professional duties is not afforded First Amendment protection. However, deciding whether an employee was speaking as a citizen and not pursuant to her job responsibilities does not depend on whether the speech occurred during work hours or concerned the subject matter of employment. Instead, it depends on whether the speech was commissioned by the employer as part of the employee??s job duties.
The court examined two factors that suggest an employee spoke as a private citizen rather than pursuant to her duties as a public employee: (1) the employee??s job responsibilities did not relate to reporting wrongdoing and (2) the employee went outside the chain of command when reporting the wrongdoing. The court found that Reinhardt was not hired to ensure IDEA compliance at Albuquerque public schools. While this fact alone was not dispositive, the court decided that her consulting an attorney and filing the state complaint went well beyond her official responsibilities. The court agreed with APS that involving an attorney does not transform unprotected speech into protected speech. However, it concluded that when Reinhardt went beyond complaining to high school administrators and filed her IDEA complaint with the New Mexico Public Education Department?an agency outside her direct chain of command?her speech was definitely no longer part of her job responsibility.
Because the district court had mistakenly rejected Reinhardt??s free speech claim based solely on her admission that she felt she had a duty to report the denial of services to disabled students, the Tenth Circuit sent the case back to the district court to decide other issues relevant to her claim, such as whether her speech was a matter of public concern, whether it was a motivating factor in the adverse actions taken against her, and whether APS??s interest in regulating her speech was greater than her interest in making it. Reinhardt v. Albuquerque Public Schools Board of Educ., 2010 U.S. App. LEXIS 2951 (10th Cir., Feb. 16, 2010).
Reinhardt??s advocacy for disabled students also furthered her personal interest, in that she benefitted financially from having more disabled students to teach. Nevertheless, this dual motivation did not deter the court from ruling that her advocacy on the students?? behalf may be protected free speech and that APS may have retaliated against her for her attempts to boost her caseload. In cases such as this, employers should structure salaries in such a way that employees do not have a financial incentives to lodge complaints regarding the inadequate lists of persons to whom they are to provide state-mandated services. Also, in making assignments regarding the distribution of students, APS would have been wise to properly document the reasons for the assignments and to make sure they were credible. Employers should be wary, under circumstances similar to this case, that employees who have become accustomed to receiving extended contracts for working overtime may have claims that the reduction of their salaries to standard contracts constitutes an adverse employment action. Employers should exercise even more caution if the employee whose contract under question has repeatedly and recently engaged in protected activity by lodging complaints that others have been denied their federal rights.
Q:One of our former employee’s LinkedIn profile has false information in it (including her job title). We want to get the information removed ? or at least changed to reflect more accurate statements ? but do we have a legal basis for doing so?
A:Presumably, the employee is the one that provided their LinkedIn profile. I see no reason why you cannot contact the employee and ask the employee to correct the information in the employee??s profile to be accurate. The problem is, if the employee refuses to do so, what actions can you take under your policies and procedures? If you can take disciplinary action because of dishonesty or misrepresentations, I see no reason why you cannot take action against an employee who refuses to correct inaccurate information about her employment.
Q: Many of our employees take advantage of direct deposit, but some workers don??t have a checking or savings account. Through our payroll vendor, we want to implement a pay card to take the place of a live check. Because it doesn??t require employees to have a checking or savings account, we want to make it mandatory if they don??t sign up for direct deposit. Are there any problems doing this?
A:Your question is a timely one. Utah law requires that employees be paid in cash, check or through direct deposit. However, the Utah Labor Commission has recently promulgated a rule permitting employers to pay employees via a pay card. Employees are entitled to one free use of their pay card per pay period. This essentially permits employees to access their wages one time. If they choose to use the pay card like a debit card, they will be charged fees, but the employer is only required to provide free access once. This is consistent with the law in other states.
Q: Our operations director wants to activate an auto-lunch deduction feature in our time clock software as a cost-cutting mechanism. If we use the feature, it would put the onus on employees to report to a supervisor when they didn’t take a lunch break. We would include an acknowledgment in the new-hire paperwork for employees to sign indicating they understand that our policy incorporates an auto-lunch deduction feature and that they are solely responsible for notifying the appropriate supervisor if they don??t take a lunch break so they can be paid properly. What are your thoughts?
A:My thought is that this may not be a particularly good idea. It is the employer??s, not the employee??s responsibility to maintain accurate employment records. If an employee testifies that they routinely were asked to work through their lunch period or voluntarily did so, your auto-lunch deduction feature would not provide evidence to the contrary. I do not think you can shift responsibility to the employee to contact a supervisor to correct your payroll records.
The allure of a corporate credit card may be too much for some employees. In the following case, an employee had a long history of abusing her corporate credit card. Because of this history, and because of the corporation??s numerous efforts to remedy the improper charges, the employee was not able to show that her termination was sexually discriminatory. Read on to see how the corporation was able to patiently amass evidence that was able to undercut the employee??s discrimination claims.
In March 1999, LifeScan Inc. hired Barbara J. Pumphrey as a sales representative. LifeScan required Pumphrey to log customer calls in a company database referred to as STARS. She was also given a company car, a fleet card for gasoline, and an American Express corporate credit card.
Soon after being hired, Pumphrey began having problems properly inputting information into STARS, and also with her expense reports. In 2001, her annual performance review stated that she needed to improve her STARS reporting, and to improve the timeliness of her weekly expense reports.
In mid-2002, Nick Theodore became her supervisor. During a ride-with, during which Theodore accompanied Pumphrey on sales calls, Theodore commented, among other things, that he had a tendency to make women cry, that he had fired women in the past because they were too emotional, referred to a waitress as an old coot, and complained about his wife being pregnant. These comments left Pumphrey feeling what she referred to as an aura of sex discrimination.
Pumphrey reported Theodore??s conduct to LifeScan??s employee assistance hotline. She later mentioned Theodore??s conduct to LifeScan??s human resources manager. Based on Pumphrey??s report, together with reports from two other sales associates, LifeScan investigated Theodore. In early 2003, among other things, Theodore received a final written warning, received sexual harassment training, was denied advancement opportunities for six months, and was obligated to have his own supervisor, Rich Doubleday, accompany him on his next round of ride-withs and performance evaluations.
During Pumphrey??s next ride-with and performance evaluation, at which Doubleday was present, Theodore apologized for his behavior, and made no further inappropriate comments.
During this performance evaluation, however, Theodore told Pumphrey that she did not effectively manage her budgets; that she did not meet administrative deadlines, including expense reporting; that she needed to improve her use of STARS; that her expense reports were nearly two months late and full of errors; and that she her use of the AMEX and fleet credit cards violated company policy. In response, Pumphrey promised to rectify the problems.
Over roughly the next year, however, Pumphrey reportedly did not change her ways. Of particular concern was her continued use of the AMEX card. When confronted in June 2003 regarding her use of the card, she stated that she had been unaware of company policy, and promised that she would no longer use the card for personal purchases. Nevertheless, in July and August she used the card to charge purchases at The Gap, Vita Power, Express Clothing, Wherehouse Music, Nordstrom, Banana Republic, and Lerner New York clothing store.
In November 2003, Theodore and LifeScan??s human resources director held a conference call with Pumphrey regarding the charges. When confronted, Pumphrey tried to play down the number of improper charges, explaining that they were necessary because LifeScan was so slow in turning around expense reports. LifeScan, however, could not understand this reasoning, given that employees were expected to pay their corporate credit card bills out of their own pockets and then seek reimbursement.
At roughly the same time that Pumphrey??s credit card improprieties were becoming a sticking point, Pumphrey again went on a ride-with with Theodore. Doubleday did not accompany Theodore on these trips. During one of these trips, Theodore commented, while in a pharmacy, that he used extra large condoms. At another pharmacy, Theodore told Pumphrey that he had been using dietary supplements to increase his sexual performance. In the car, while looking for some nuts that Pumphrey had purchased as a snack, Theodore said, Where are my nuts? while touching his groin. Finally, when Theodore reached across Pumphrey to get the nuts, his elbow touched her thigh. Pumphrey did not report any of these incidents to LifeScan.
Sometime in 2003, apparently because of Pumphrey??s ongoing administrative problems, Theodore began calling Pumphrey every Friday between 3 and 5 p.m. with administrative questions. In 2003, Pumphrey was also not allowed to become a member of LifeScan??s marketing team because, according to an e-mail sent by Theodore, Pumphrey was not effectively managing her current workload. Theodore also did not allow Pumphrey to apply for another selling position, nor did he allow her to be on a LifeScan fleet management committee. Furthermore, Theodore did not allow Pumphrey to immediately leave work one day when her daughter was hit by a car, and he did not provide her additional sales support to cover her territory.
Finally, on December 8, 2003, LifeScan fired Pumphrey because of her improper use of the corporate AMEX card. At the time of her termination, Pumphrey was one of LifeScan??s top salespeople.
Sexual Discrimination Claim
Pumphrey sued LifeScan for sexual discrimination under Title VII. Unfortunately for her, however, the U.S. District Court for the District of Utah did not find that any of LifeScan??s actions toward her were sufficiently severe. Pumphrey tried to argue that Theodore??s comments during the ride-withs were adverse employment actions. But the court decided that Theodore??s comments and actions were not severe enough.
Further, Pumphrey provided no evidence that she was exposed to unfavorable employment terms that were not applied equally to men or to other similarly-situated employees?i.e., employees who had a history of abusing their credit card privileges.
In addition, Pumphrey could not prove that LifeScan??s stated reason for terminating her?i.e., misuse of the AMEX card?was pretext for improper discrimination. Pumphrey??s only evidence of pretext was her own assumption that other sales representatives were allowed to use their AMEX cards for personal use. Thus, Pumphrey??s sexual discrimination claim failed.
Sexual Harassment?Hostile Work Environment
Pumphrey also tried, unsuccessfully, to sue LifeScan for creating a sexually hostile work environment. The basis for this claim was Theodore??s statements and actions during the ride-withs.
But to prove a hostile work environment, the plaintiff must show that the environment is sexually hostile to an extent that it alters the conditions of an employee??s employment and creates an abusive working environment. According to the court, Theodore??s few improper statements were not severe or pervasive enough to create this type of environment. Furthermore, the fact that Theodore at one point apologized for his behavior, and Pumphrey never reported any behavior after that, all supported the court??s decision that Pumphrey was not subject to a sexually hostile work environment.
Pumphrey??s retaliation claim suffered a similar defeat. Pumphrey argued that LifeScan retaliated against her by, among other things: giving her an unfair performance evaluation; not allowing her to become a member of the marketing team; not allowing her to participate in the fleet management committee; increasing the number of her administrative tasks and subjecting her to additional scrutiny; allowing Theodore to call her every Friday afternoon; and firing her in December 2003.
The court found that none of these items, either individually or collectively, amounted to retaliation. All of the actions were based on legitimate business needs and concerns. Those concerns included her general job performance and her ability to manage her present workload. Furthermore, Pumphrey acknowledged that the actions taken by LifeScan and Theodore were authorized, though personally annoying.
Finally, Pumphrey could not prove retaliation because she could not connect her termination to her earlier complaint against Theodore. Not only had nearly a year passed, but Pumphrey could not show that her improper use of the AMEX card was not the cause of her termination.
Although she tried to shift the blame for her use of the card to LifeScan by arguing that she only used the card because LifeScan was slow in turning around expense reports?an argument that the court found very unconvincing given that individual employees were required to pay their own corporate accounts and then seek reimbursement?the court said that shifting blame is not the same as establishing a pretext for discrimination.
In the end, the court upheld LifeScan??s decision, stating that courts are only able to determine if a law has been broken, and are not super personnel review board[s]. Thus, even though Pumphrey was a top seller, and even though her conduct may not have actually harmed the corporation, LifeScan did not improperly discriminate against Pumphrey by firing her. Pumphrey v. LifeScan, Inc., 2010 U.S. Dist. LEXIS 7314 (January 29, 2010)
The credit for Pumphrey??s firing belongs to Pumphrey herself. As this decision shows, when a corporation has an employee who has a history of misusing expense accounts, or of systematically violating the corporation??s policies in general, it should not be afraid to terminate the employee. That being said, as this decision also makes clear, an employer??s efforts to work with a recalcitrant employee can also shore up any eventual decision to terminate. Such past efforts, documented and verifiable, may prove their weight in gold (or credit cards) if the employee attempts to take a parting shot at the employer on his or her way out.