Ann Arbor nursing home to pay $35k in religious discrimination suit

Whitehall Healthcare Center of Ann Arbor, a skilled nursing and long-term care facility in Ann Arbor, will pay $35,000 to settle a religious discrimination suit.

In its lawsuit filed by the Equal Employment Opportunity (EEOC) in late 2011, the EEOC alleged that Whitehall discriminated against a certified nursing assistant because of her request for a religious accommodation. The employee is a Jehovah’s Witness.

She asked that her employer not schedule her to work on Wednesdays or Sundays so she could attend spiritual meetings and participate in field service as a part of her sincerely held religious belief. The worker was fired when she informed her boss that she was unable to work on Sundays, according to the EEOC.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (EEOC v. Whitehall Healthcare of Ann Arbor, LLC, Civil Action No. 2:11-cv-15407) in U.S. District Court for the Eastern District of Michigan after first attempting to reach a pre-litigation settlement through its conciliation process.

The approval of a consent decree by Judge Avern Cohn brings a formal end to the litigation between the EEOC and Whitehall. In addition to paying $35,000 to the discrimination victim, the resolution requires the company to provide training to all employees regarding requests for religious accommodations, create a new religious accommodation policy and file reports with the EEOC regarding compliance with the decree’s requirements.

EEOC Trial Attorney Lauren Gibbs, Supervisory Trial Attorney Kenneth Bird, and Regional Attorney Laurie Young led the government’s litigation.

MSC will revisit motivation issue in whistleblower claim

The Michigan Supreme Court will decide whether claims filed under the Whistleblower Protection Act rise or fall depending on what motivated the suit — the “desire to inform the public about matters of public concern” or “personal vindictiveness.”

In the process, the MSC will take a second look at a 15-year-old precedent, Shallal v. Catholic Social Services of Wayne Co., 455 Mich. 604 (1997).

The case under review is the Michigan Court of Appeals decision in Whitman v. City of Burton, et al. (majority opinion) (dissent)

In 2007, the city of Burton declined to reappoint Bruce Whitman as police chief. The city provided a laundry list of reasons for the decision: morale problems in the police department; inadequate discipline of officers; misuse of department email; playing favorites; not responding to a police harassment complaint; and providing the city council with misleading budget reports.

Whitman claimed something else was going on. Three years earlier, he had asserted his rights under a city ordinance to be paid for unused leave time. He did so despite an informal agreement, memorialized in a memo from the mayor, that city administrators would use leave time during the year rather than accummulating it. When the city balked at Whitman’s demand to be paid, he threatened criminal action. The city relented and cut a check for $6,984.

Following his non-reappointment, Whitman sued the city under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. The jury found for Whitman. The trial court denied the city’s motion for judgment NOV.

In a split decision, the Court of Appeals reversed. Judge Henry Saad, joined by Judge Peter O’Connell, ruled that Whitman’s claim was “not actionable.”

In demanding payment under the ordinance for his sick and personal hours — a payment the cash-strapped city could ill-afford — plaintiff was decidedly not acting in the public interest, but in the thoroughly personal and private interest of securing a monetary benefit in order to maintain his “life style.”

Plaintiff’s claim is not actionable under the WPA because his complaint amounted to a private dispute over plaintiff’s entitlement to a monetary employment benefit. Moreover, plaintiff acted entirely on his own behalf. Indeed, nowhere in the voluminous record “is there any indication that good faith or the interests of society as a whole played any part in plaintiff’s [threatened] decision to go to the authorities.” …

To the contrary, plaintiff asserted his own entitlement to payment and he dropped his threat of legal action when he received his money. Under these facts, no reasonable juror could conclude that plaintiff threatened to prosecute defendants “out of an altruistic motive of protecting the public.” Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 622; 566 NW2d 571 (1997).

Judge Jane Beckering dissented. Beckering said that in Shallal, the plaintiff knew about the employer’s alleged violations of the law for several years and threatened to make a report only after job security issues arose. Whitman’s situation is different, Beckering argued.

[A]lthough plaintiff had personal reasons for desiring Ordinance 68C to be enforced, i.e., his own financial status, a reasonable juror could have concluded that he also acted as an officer of the law attempting to have the ordinance enforced as written, which was in the public interest. Plaintiff did not use the WPA as a tool to extort the city. Accordingly, I would hold that plaintiff was not barred from recovering under the WPA.

Last week, on a 7-0 vote, the MSC agreed to review whether Shallal “correctly held that the primary motivation of an employee pursuing a whistleblower claim must be a desire to inform the public on matters of public concern, as opposed to personal vindictiveness.”

In their opinions

“We do not beat the Wolf for being gray, but for eating the sheep.” Sixth Circuit Judge Boyce F. Martin Jr., quoting Count Lev N. Tolstoy’s The Wolf and the Hunters.

Martin was illustrating why a federal district court correctly dismissed an age-discrimination plaintiff’s case.

The plaintiff claimed management made several inquiries of older workers about their retirement plans. Plaintiff alleged that at one point, a human resources manager said, “There are some elderly supervisors that we have to do something with within the next year.”

Martin ruled that even if plaintiff had established a prima facie case by either direct or circumstantial evidence, there was plenty of evidence to back up defendant’s reasons for letting plaintiff go — poor work performance reviews, written warnings about workplace behavior and failure to achieve goals in his personal performance plan.

The case is Lefevers v. GAF Fiberglass Corp.

House takes up bills to fine unions, striking employees

The House committee on Oversight, Reform and Ethics met early this afternoon to take up a package of bills that labor unions have called anti-worker, and anti-union.

Among them, HB 5025, which would require annual written consent of a worker before union dues could be deducted from their paychecks. Right now, workers do have to give written consent, but they only have to do it upon hire. Jim Pederson of the UAW called it “onerous and burdensome legislation,” and stated that he believes it’s illegal.

Also on the agenda were bills that would change the way employers can advertise to fill positions when union workers are on strike, legislation that would fine striking public employees, and a bill that would fine organizations for mass picketing.

It’s true: ‘True majority’ WCAC decisions no longer required

When the Workers’ Compensation Appellate Commission reviews a magistrate’s decision concerning a comp claim, the long-standing law in Michigan has been that the WCAC must issue a “true majority” opinion — one in which a majority agrees in the result and the reasoning behind it.

Not any longer, the Michigan Supreme Court has ruled.

In Findley v. DaimlerChrysler Corp., a workers’ comp magistrate denied a benefits claim. The WCAC affirmed. The WCAC’s decision consisted of a lead opinion by one commissioner. The second commissioner concurred in the result only, without adopting the facts found in the lead opinion or making findings of his own. A third commissioner dissented.

The Michigan Court of Appeals vacated the WCAC decision. Citing MCL 418.274(8) and Aquilina v. General Motors Corp., 403 Mich. 206 (1978), the COA ruled in Findley, that “a true majority decision is one in which at least a majority of the commissioners agree regarding the material facts and the ultimate outcome.”

In making its ruling, the COA turned aside the defendant’s argument that Aquilina was good law when the Workers’ Compensation Appellate Board (the predecessor to the WCAC) reviewed cases de novo but the review standard now is “substantial evidence,” so true majorities are no long necessary.

Importantly, however, our review of the WCAC’’s findings remains the same as our previous review of the WCAB’s findings — we must determine if any competent evidence exists to support the WCAC’s findings. … Thus, the mere fact that the WCAC’s standard for reviewing a magistrate’s decision has changed since Aquilina was decided is simply not relevant to whether competent evidence supports the WCAC’s findings. And, in determining whether any competent evidence exists to support the WCAC’s findings, “we cannot discharge our reviewing responsibilities unless a true majority reaches a decision based on stated facts.” … To allow otherwise would be to corrupt the integrity of the administrative process. … Accordingly, the true-majority requirement articulated in Aquilina continues to be valid.”

Not true, ruled the MSC in a 4-3 order released late Friday. The MSC reversed the COA and reinstated the WCAC’s decision:

In contrast with the statutory mechanism in place at the time Aquilina was decided, the WCAC is now required to treat as conclusive the factual findings of the magistrate where those findings are “supported by competent, material, and substantial evidence on the whole record.” MCL 418.861a(3). Because the WCAC must now give deference to the magistrate’s factual determinations, and may no longer engage in de novo fact finding, a WCAC decision does not require a “true majority” “decision based on stated facts.”

Justice Michael Cavanagh, joined by Justice Marilyn Kelly, dissented.

Although the 1985 legislative amendments brought reforms to the Worker’’s Disability Compensation Act, as the Court of Appeals recognized, the review function of appellate courts remains the same. See, e.g., Holden v Ford Motor Co, 439 Mich 257, 262 (1992). And, even after the legislative amendments, this Court has generally recognized the importance of a “carefully constructed opinion by the WCAC” in facilitating appellate review. … Thus, under the facts of this case, I do not believe that the Court of Appeals clearly erred in applying Aquilina where, as in Aquilina, a commissioner in the majority did not issue a separate opinion but, instead, concurred only in the result reached by the lead opinion.

Cavanagh would have denied leave to appeal. Justice Diane Hathaway would have granted leave to appeal.

She’s not fat. She’s pregnant.

A successful member of Weight Watchers is suing The WW Group, Inc. d/b/a Weight Watchers for refusing to hire her as a group leader because she was pregnant.

The U.S. Equal Employment Opportunity Commission charged in a lawsuit filed today that Weight Watchers violated federal law when it refused to hire the woman.

According to an EEOC statement, the job seeker had been a long-term client of Weight Watchers. She had successfully met her weight loss goals, and had maintained the weight loss. She had done so well that her own group leader encouraged her to apply for a group leader position.

But Weight Watchers discovered she was pregnant, and according to the EEOC, the woman was told that Weight Watchers does not hire pregnant women and the company refused to consider her further for the job.

From the EEOC:

Refusing to consider a woman for a job because she is pregnant violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit against Weight Watchers in U.S. District Court, Eastern District of Michigan, (EEOC v. The WW Group, Inc., d/b/a Weight Watchers International, Inc., Case No. 2:11-cv-14220) after first attempting to settle the matter. The EEOC’s suit seeks back pay, compensatory and punitive damages on behalf of the applicant along with injunctive relief intended to prevent further instances of pregnancy discrimination.

“Maintaining a blanket policy against hiring pregnant women is a clear violation of the law,” said EEOC Trial Attorney Nedra Campbell. “The EEOC will vigorously enforce a pregnant woman’s right to be considered for a job.”

The WW Group, Inc. owns and operates Weight Watchers International, Inc. (NYSE: WTW) franchisees. The WW Group, Inc. was founded in 1968 and is based in Farmington Hills, Mich. It operates outlets in Michigan and in Canada.

The EEOC is the federal agency that enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at http://www.eeoc.gov.

Fired worker takes on Ford Motor Co.

The U.S. Equal Employment Opportunity Commission (EEOC) has filed suit against Ford Motor Co. Inc. for failing to provide a reasonable accommodation to a disabled worker at its Dearborn facility.

According to the EEOC, Ford refused to let employee Jane Harris participate in its liberal telecommuting program as a reasonable accommodation for her gastrointestinal condition, which she said had rendered her disabled. The EEOC claims that instead of accommodating the worker, Ford criticized her job performance, and placed her on a “performance enhancement plan.” She complained about being denied the accommodation, and a few months later, Ford fired her, which EEOC said is a violation of the ADA.

The EEOC said that it tried to reach a pre-litigation settlement. The agency is seeking back pay and compensatory damages for emotional distress, and punitive damages. The case is EEOC v. Ford Motor Company Inc., Case No. 2:11CV13742, and was filed in U.S. District Court for the Eastern District of Michigan.

COA: State workers’ mandatory health-care charge unconstitutional

A statute requiring public employees to contribute three percent of their pay to finance state retiree health-care benefits is unconstitutional, the Michigan Court of Appeals has ruled.

In AFSCME Council 25, et al. v. State Employees Retirement System, et al., the court upheld a lower court ruling that struck down MCL 38.35.

The state and unions representing state workers negotiated a three percent pay raise, which the state Civil Service Commission (CSC) approved.

The statute negated the raise by requiring state workers to contribute the amount of the raise to fund health care benefits for state retirees.

Court of Appeals Judge Karen M. Fort Hood, joined by Judges Jane M. Beckering and Cynthia Diane Stephens, ruled that the CSC has plenary authority over state workers’ pay.

Fort Hood explained that Michigan’s Constitution has an express mechanism to override the commission.

[A]n increase in the rate of compensation authorized by the commission may be rejected or reduced by the Legislature “by a two-thirds vote of the members elected to and serving in each house” provided the vote occurs within 60 calendar days of the transmitted increase. Mich Const 1963, art 11, § 5, ¶ 7.

The Legislature tried but failed to override the CSC in this manner, and then enacted the statute.

But, Fort Hood ruled, by enacting the statute:

the Legislature acted to reduce the compensation of classified civil servants by three percent without an accompanying agreement with the unions or the [commission].

MSC will review pension tax law

The Michigan Supreme Court has granted Gov. Rick Snyder’s request for an advisory opinion on the constitutionality of reducing or eliminating tax exemptions for pension incomes.

The MSC will hearing arguments on the constitutionality of 2011 PA 38 on Sept. 7.

The questions submitted for the MSC’s review are:

• (1) whether reducing or eliminating the statutory exemption for public-pension incomes as described in MCL 206.30, as amended, impairs accrued financial benefits of a “pension plan [or] retirement system of the state [or] its political subdivisions’ under Const 1963, art 9, § 24;
• (2) whether reducing or eliminating the statutory tax exemption for pension incomes, as described in MCL 206.30, as amended, impairs a contract obligation in violation of Const 1963, art 1, § 10 or the US Const, art I, § 10(1);
• (3) whether determining eligibility for income-tax exemptions on the basis of total household resources, or age and total household resources, as described in MCL 206.30(7) and (9), as amended, creates a graduated income tax in violation of Const 1963, art 9, § 7; and
• (4) whether determining eligibility for income-tax exemptions on the basis of date of birth, as described in MCL 206.30(9), as amended, violates equal protection of the law under Const 1963, art 1, § 2 or the Fourteenth Amendment of the United States Constitution.

The Attorney General will submit separate briefs arguing for and against the legislation’s constitutionality.

Another 6th Circuit judge wants en banc review of ADA standard

Judge Jane B. Stranch has joined the growing group of judges who are itching to have the entire Sixth Circuit revisit a disability law decision that goes against the bulk of authority in other circuits.

The Sixth Circuit is in the distinct minority of jurisdictions that require plaintiffs suing under the Americans with Disabilities Act (ADA) to show that their disability was the “sole reason” they were fired from their jobs. See “6th Circuit: Go ahead, take another crack at this”

Most other circuits use a “motivating factor” standard.

Since 1996, when a 6th Circuit panel issued the “sole reason” standard in Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996), other panels have had to fall in line because one panel can’t overrule another.

Some judges have openly suggested that Monette was incorrectly decided. Judge Richard Allen Griffin, concurring in Lewis v. Humboldt Acquisition Corp., is one of them.

And Judge Gilbert Merritt, who wrote the majority opinion in Lewis, broadly hinted that plaintiff’s counsel should seek en banc rehearing of the case.

Indeed we should, said Stranch, concurring in Whitfield v. State of Tennessee, et al. Stranch said that the “sole reason” standard was borrowed from the federal Rehabilitation Act, which:

prohibits discrimination against an individual “solely by reason of his or her disability,” 29 U.S.C. § 794(a)[.]

[T]he ADA prohibits discrimination’on the basis of’ the individual’s disability, 42 U.S.C. § 12112(a). While the text of the RA mandates the sole motivation standard, no derivation of the word “sole” appears in any liability provision of the ADA. …

I take this opportunity to lend my voice to the others that have urged the en banc court to reconsider our initial importation of the sole motivation standard from the RA into the ADA. I do not find our position justifiable in light of the tenets of statutory construction.

Michael L. Weinman of Jackson, Tenn., the plaintiff’s attorney in Lewis, says he will pursue an en banc hearing.