CALL 503.248.1134

200 SW Market Street, Suite 1900
Portland, Oregon 97201

Mid-Summer Classic Quiz: Is That Hiring/Termination Decision Lawful

July 15, 2016

By Michael G. McClory

On Tuesday they played the 2016 MLB All-Star Game in San Diego.  Did you watch?  If you are like The Bullard Edge you did not watch.  In fact, ratings for this year’s game fell to an all-time low.
It is not like the old days when the Mid-Summer Classic captivated the country.  Historically, the game has featured great moments.  Here are just a few.
  • 1941: Ted Williams hit a walk-off 3-run homerun. 
  • 1934: Carl Hubbell strikes out five Hall of Famers in a row. 
  • 1989: NFL star Bo Jackson homers, makes a great catch, and steals a base. 
There are numerous other moments, but they seem far away at the moment.  Nevertheless, we remain hopeful that something good is just around the corner.  Perhaps in October it really will be “the year” for the Chicago Cubs (unlike this year or this one). 
In this spirit of hopefulness at the mid-point of the summer, The Bullard Edge offers you a two-question quiz on hiring and firing decisions.  The simple quiz question for each will be: Lawful or Unlawful?  Good luck.
Scenario #1 – A termination in Wisconsin:
Among other things, the Wisconsin DMV issues driver’s licenses.  The DMV employed Eileen as a Field Agent Examiner, in which position she split time between administering road tests to license applicants and working in a customer service role.  While she was a long time employee with a history of strong performance reviews, the standards of review changed in 2011 leading to several poor evaluations.  In 2012 Eileen became visibly emotional after an on-the-job error; she missed a week of work and informed the DMV that she suffers from an anxiety-related disorder.  Subsequent to that, with permission from her supervisor, Eileen took a break when she felt an anxiety attack coming on.  This worked until a substantial episode in mid-2013.  Eileen was on the ground behind a work counter; she was crying, had various scratch marks on her arms, and was talking less-than-coherently into a cell phone.  Some of her comments seemed to concern self-harm.  The DMV required Eileen to undergo an independent medical examination as part of its return-to-work consideration.  The purpose of the IME was to consider Eileen’s own safety and the safety of others in the workplace.
The IME doctor examined Eileen, but did not obtain any records from her treating doctors (despite Eileen signing a release).  The IME doctor found that Eileen “remains at increased risk for potentially violent behavior towards self and others within the workplace” and recommended that she not be permitted to continue in her current position.  The DMV provided Eileen with a copy of the IME report and told her that it was considering discharge; however, it gave her time to provide any other information she believed to be relevant.  Eileen did provide a record from her treating doctor who indicated Eileen was fit to return to work on a part time basis for a month.  The DMV followed up with the treating doctor who then modified his view to be that Eileen could return to work immediately.  The treating doctor, whose examinations of Eileen had been by video conference (he was located in Utah), refused to review the IME report.
Ultimately, the DMV decided to terminate Eileen.  Based on the IME, the DMV determined that Eileen was unfit for continued employment and could not continue to safely perform her duties.  Eileen sued, alleging among other things that the termination was unlawful disability discrimination under Section 504 of the Rehabilitation Act of 1973 (29 USC §701 et seq.) 
Question: Was the termination lawful or unlawful?
Scenario #2 – A non-hire in New York:
The New York City Housing Authority had six applicants for five open bricklayer positions.  A four-person panel interviewed the candidates (five male and one female); an HR representative also attended the interviews as an observer.  The panel conducted the interviews consecutively and made hiring decisions following the final interview.
During her interview, Rita (the female candidate) openly admitted during her interview that she had limited brick and block experience.  However, she had 15 years of experience as a tile mechanic and had some non-work experience with blocks.  The interviewers asked Rita only one technical question during the interview (how to make a mortar mix).  One of the interviewers asked whether she had any family obligations that might limit her overtime availability; Rita said that would not be a problem for her. 
Following the interviews, the HR representative in attendance conveyed the message to Rita that she did not get the job; the five male candidates had been hired.  (The Housing Authority had never hired a woman for a bricklayer position.)  By way of explanation, the HR representative “stated that the interviewers wanted somebody stronger.”  Subsequent to the interview, on the advice of Legal Momentum (a women’s legal defense and education fund) Rita wrote a short note about the interview in which she stated, “I was told I was not strong enough.”  (It is undisputed that strength was not discussed during the interview.)
Rita filed a sex discrimination suit under Title VII, as well as under similar New York state and New York City laws.  She asserted that the Housing Authority rejected her application for employment because of her gender.  The Housing Authority denied the substantive allegations; it argued (1) that Rita was not qualified for the bricklayer position and (2) even if qualified Rita “failed to offer sufficient evidence from which a reasonable jury may find that sex was a motivating factor” in the hiring decision.
Question: Was the hiring decision lawful or unlawful?
1971 – Reggie Jackson homers over the upper deck at Tiger Stadium:

Answer to Scenario #1:
The DMV lawfully terminated Eileen. 
This case is Felix v. Wisconsin Department of Transportation (7th Cir 7/6/2016).  The trial court granted summary judgment to the employer, “reasoning that the undisputed facts demonstrated that [Eileen] was discharged not solely because of her disabilities but rather based on workplace behavior that indicated to her employer that she posed a safety risk to herself and others.”  The Seventh Circuit agreed.
We offer this end note.  The DMV engaged in the interactive process.  It did not assume Eileen to be disqualified based simply on the fact that she has an anxiety disorder.  Instead of acting based on myth, fear or stereotype, the DMV sought current information from an independent health care practitioner with relevant expertise and from Eileen’s treating health care provider.  There was a conflict in the information, which the DMV resolved by appropriately weighing the value of the opinions. 
Answer to Scenario #2:
This is a bit of a trick question.  The trial court granted summary judgment to the Housing Authority, which would suggest the hiring decision was lawful.  However, on appeal, the Second Circuit Court of Appeals overturned that decision and effectively said that there is enough evidence to let a jury decide.  Thus, the lawful or unlawful question is still out there. 
This case is Walsh v. New York City Housing Authority (2d Cir 7/7/2016).  In overturning the grant of summary judgment, the Second Circuit focused on the third part of the burden-shifting framework applicable to Title VII discrimination claims.  First, a claimant (like Rita) must establish a prima facie case of sex discrimination (that she was female, was qualified for the position, was subject to an adverse employment action, and the circumstances give rise to an inference of discrimination).  If that is met, an employer (like the Housing Authority) has the burden of articulating a legitimate, nondiscriminatory reason for the adverse employment action.  Finally, if the employer meets that burden, “the plaintiff’s admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination.” 
The Second Circuit proceeded directly to the third step and considered whether Rita had produced enough evidence to allow a reasonable jury to infer that the Housing Authority’s hiring decision had been “more likely than not based ... in part on discrimination.”  The appellate court found that Rita had produced sufficient evidence.  It specifically pointed to (1) the fact that the Housing Authority had never hired a female as a bricklayer and (2) the HR representative’s statement to Rita that she did not get the job because the interviewers wanted someone stronger.  The appellate court stated that the trial court “erred by evaluating each piece of [Rita’s] evidence in isolation, rather than viewing that evidence as a whole.”
This decision illustrates the importance of a fully conceptualized selection process.  An employer should know the position for which it is recruiting (including all of the duties of the positions and the qualification standards), should have an interview/evaluation process, should make a decision on the merits, and should be able to articulate the reasons for every hire and non-hire.  In this case, the Housing Authority may ultimately prevail.  However, the apparent absence of a convincingly articulated reason for not hiring Rita may result in Rita’s claims going to a jury. 
Peace to all,
The Bullard Edge