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Friday, June 27, 2014

Massage Envy Pregnancy Suit

By: Tommy Eden
Morgan McCloskey was hired to work as a front desk associate at Massage Envy located in the University area of Charlotte, North Carolina. On April 3- after she was hired but before she started work- McCloskey discovered she was pregnant using a home pregnancy test. When she started to work five days later, McCloskey told her supervisor that she was pregnant.

On April 12, after a doctor’s test confirmed her pregnancy, McCloskey was called into see two Massage managers who told her that “pregnant women should not be working” and that she was being let go; according to the lawsuit filed on Monday by the EEOC in U.S. District Court for the Western District of North Carolina. The suit claims that the alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The suit seeks back pay, front pay and/or reinstatement, compensatory damages punitive damages and injunctive relief. The Case is EEOC v. CCR Wellness Investments, LLC, d/b/a Massage Envy.

Common Sense Counsel: In 2014 the EEOC has already cracked down on workplace pregnancy discrimination filing and settling 11 new cases since January. Following these five tips will keep you out of the EEOC’s litigation claws and protect pregnant workers’ rights:

1)    Prohibit Family Planning Interview Questions- never discuss whether a potential candidate is pregnant or plans to start a family. Questions should always stick to the job requirements as set forth in the written job description, such “as this position involves frequent overnight travel-would that be a problem?”

2)    Be Prepared to do the Reasonable Accommodation Dance- inform employees in your handbook that they have a right to raise accommodation requests, and then train managers to recognize when requests are being made. Look for comments about work causing pains or swelling of the feet and then see how you can work with the employee to keep them on the job.

3)    Making Assumptions on Job Accommodations is Risky- transfer of the pregnant employee to a light duty role because you think it is in the woman’s, or unborn child’s best interest, without first doing an objective evaluation of the worker’s ability to do the job may get you sued. Hire a good Doctor- rather than trying to play one.

4)    Train Manager What Not To Say- supervisors making “belly would be in the way of her work” comments will always show up on the big screen at trial

5)    Think Post Pregnancy- it is also about post-partum depression or limited physical strength issues when coming back from a difficult pregnancy.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Thursday, June 19, 2014

Driver Medical Disqualifications Roadmap

By: Tommy Eden
Crete Carrier Corporation employed Sakari Jarvela as a commercial truck driver from November 2003 until April 2010 at its Atlanta based terminal. At some point in that time, Jarvela developed a problem with alcohol abuse. In March 2010, he sought treatment after his personal physician who diagnosed him as suffering from alcoholism and referred him to an intensive outpatient treatment program. Jarvela notified Crete of his need for Family and Medical Leave Act (FMLA) leave and provided a statement from his physician as part of the FMLA approval process. Crete approved the leave from March 18, 2010, until June 6, 2010. Jarvela completed his alcoholism treatment program early on April 20, 2010, and immediately sought to return to work—a month and a half after his original diagnosis of alcoholism.
Crete decided that Jarvela no longer met the qualifications to be a commercial truck driver and dismissed him- citing both the DOT regulations and its company policy. Jarvela then filed a law suit against Crete alleging violation of the Americans with Disabilities Act of 1990 (ADA) based on his disability of alcoholism and interference and retaliation claims under the Family Medical Leave Act of 1993 (FMLA) for not returning him to his former position but terminating him. The United States District Court for the Northern District of Georgia granted summary judgment in favor of Crete on all of Jarvela’s claims, and Javela appealed.
On June 18, 2014, the 11th Circuit Court of Appeals affirmed summary judgment for Crete. The Court looked first at Crete’s written job description for Jarvela’s position which stated, “that an essential duty is that the employee qualifies as a commercial driver pursuant to both DOT regulations and Crete company policies.” The Court found the crucial issue to be whether Jarvela qualified under DOT regulations and Crete company policy. The DOT regulations specify that a person is not qualified to drive a commercial motor vehicle if he has a “current clinical diagnosis of alcoholism.” 49 C.F.R. § 391.41(b)(4). The 11th Circuit interpreted a “current clinical diagnosis of alcoholism” in this case to mean that an individual suffers from alcohol dependency.
The Court noted that the DOT regulations make clear that an employer makes the final determination of who is a qualified individual to drive a commercial truck. See 49 CFR § 391.11(a). Jarvela contended that only a DOT medical examiner (who had issued him a six-month medical certification) c o uld determine whether he had a current clinical diagnosis of alcoholism. The Court sided with Crete that an employer must make the final determination of whether an employee suffers from a current clinical diagnosis of alcoholism because DOT regulations unambiguously place the burden on an employer to ensure that an employee meets all qualification standards. 49 CFR § 391.11(a). The regulations provide that a motor carrier “shall not require or permit a person to drive a commercial motor vehicle” unless the person is qualified to drive one. Aperson is only qualified to drive a commercial motor vehicle if he has no “current clinical diagnosis of alcoholism.” See 49 CFR § 391.41(b)(13). The Court held that since the regulations “place the onus on the employer to make sure each employee is qualified to drive a commercial vehicle, the employer must determine whether someone suffers from a current clinical diagnosis of alcoholism.” Thus Jarvela was not able to meet an essential job function as set forth in his written job description.
Jarvela’s FMLA claim was also found to be without merit because “an employer can deny reinstatement following FMLA leave if it can demonstrate that it would have discharged the employee even if he had not been on FMLA leave.” The Court found that “regardless of whether Mr. Jarvela had taken FMLA leave, there [was] ample, unrebutted evidence in the record to indicate that Crete would have discharged him upon learning of his diagnosis of alcohol dependence.” The case is Sakari Jarvela v. Crete Carrier Corporation.
Common Sense Counsel: this case gives a DOT FMCSA regulated employer a roadmap to dealing with alcoholism, drug dependency and issues of medical disqualification. Following these five steps will help keep unsafe drivers off the road and avoid a collision with the EEOC. 1) Update Driver Job Descriptions to include: “an essential duty is that the employee qualifies as a commercial driver pursuant to both DOT regulations and company policies”; 2) Do Not Ignore Potential Medical Disqualification Information regardless of its source: worker's compensation doctors reports, FMLA paperwork, MRO safety concern letters, fitness for duty evaluations, etc.; 3) Know The Regulations especially 49 CFR parts 40, 382 and 391 which all contain very helpful language on Actual Knowledge (383.107); MRO safety concern letters contain "medically unqualified" language (40.135) and Disqualification of Drivers (391.11, 391.15 & 391.41) contains extensive list of grounds; 4) Trusted Medical Examiner – do not play a doctor but find a really good one. Select a doctor who you can pick up the phone with explain the medical information you have in front of you and ask for guidance. This doctor should be an MRO and be certified to conduct DOT medical examinations and willing to consult with you on examination conducted by other doctors. 5) Learn the ADA Dance. At some point you will need to have an interactive conversation with the driver and build your paper trail to make an effective and defensible termination decision. Using a trusted dance instructor can help make you look like a pro.
Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Wednesday, June 18, 2014

Tough Love Employers

By Tommy Eden
Anthony DePalma was Assistant Fire Chief for the City of Lima, Ohio, when he developed kidney stones and became addicted to prescribed narcotic pain medications. DePalma voluntarily checked himself into Sheppard Hill, an addiction treatment center. DePalma had not violated any work rules and his performance and behavior at work were excellent. DePalma had been at Sheppard Hill for one week when be was told by the Lima Fire Chief to either sign a Last Chance Agreement (LCA) or he would be fired; which DePalma signed. The following year DePalma was hospitalized with a kidney stone and was given painkillers while awaiting surgery. When he returned to work he was required to submit to a drug test, which revealed the presence of the painkillers. The City terminated DePalma pursuant to the signed LCA.

DePalma appealed and eventually the Ohio Court of Appeals reversed, agreeing with DePalma that the City should not have been permitted to use his voluntary act of seeking substance abuse treatment as a basis for changing the terms of his employment. The Americans with Disabilities Act (ADA) prohibits employers from changing the terms of employment for a person with a disability just because of that disability, 42 U.S.C. Section 121l2(a). Although a qualified individual with a disability does not include an employee currently engaging in the legal use of drugs (Section 112114(a)) an individual is considered qualified if he or she is participating in a supervised rehabilitation program and is no longer engaging in such use, Section 12114(b)(2). The goal of these provisions is "to encourage drug addicts to seek treatment without worrying that doing so will cost them their jobs,” ruled the Court. Because the LCA was invalid under the ADA, the Court found that the subsequent discipline for its violation could not stand.  The case is DePalma v. City of Lima.

Common Sense Counsel: an employee’s voluntary admission into substance-abuse treatment, or coming forward and saying "I have a problem - I need help,” are both ADA protected events. Such triggers an employer’s obligation to listen and consider what the employee has to say and present and not take disciplinary action such as a last chance agreement. Rather consider entering into a work continuation agreement after gathering information from the treatment provider, medical review officer or counselor and having an interactive discussion with the employee. Such an agreement reduces the risk of a workplace accident while keeping the employee accountable in the rehabilitation process. It’s tough love and risk reduction all wrapped into one document with a signature at the bottom. If the employee falls off the wagon, then move to the LCA, not automatic discharge. In these cases compassion and patience are typically rewarded with a turnaround employee or smooth termination.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Friday, June 13, 2014

Haunting Preformance Evaluations

By Tommy Eden

Cegeste Barthelus, a black Haitian, received positive evaluations for over 8 years while working as a senior network administrator for the Florida security firm G4S Government Solutions. He claimed that shortly before his discharge he complained to Human Resources about unfair treatment by the new IT manager because of his race and his Haitian accent. Specifically he claimed that she had created a hostile working environment by treating him differently from younger white co-workers because of his race and Haitian accent as follows: cut his lunch break short; denied vacation days; not provided an office; denied a pay raise; denied a promotion and his supervisor was not allowed to amend an inaccurate performance evaluation. The Florida Federal District Judge had granted the employer summary judgment finding that poor job performance was the reason for his discharge and not his national origin or race. Barthelus represented himself without counsel in the case.

Last month the 11th Circuit Court of Appeals in Atlanta overturned the District Judge's ruing finding there was a jury issue of pretext (not the true reason). Specifically, the Court of Appeals found that Barthelus had consistently received positive performance reviews and only received an unfavorable evaluation after his complaint to HR about unequal treatment because of his Haitian accent. The Court noted that the District Court Judge disregarded the conclusions of an independent information technology audit by Tech Search America (TSA) that the IT services provided under Barthelus direction were “above par and secure,” and the numerous positive past performance evaluations he had received over an 8 year period.  The Court ruled "we conclude that material issues of fact are present regarding pretext especially when Barthslus's performance reviews are considered in light of the TSA audits.” The case is Barthelus v G4S Gov’t Solutions.

Common Sense Counsel: if you liked the ghost of Christmas past in the Scrooge Christmas Carol, discovering a series of positive performance reviews after you have discharged an employee is a very similar experience. Usually comes in conjunction with preparation of your Statement of Position to the EEOC Charge and can scare the daylights out of you. Follow these four steps and you will not have to face your company’s performance evaluation ghost: 1) Do It Regularly – recognizing good or poor work should be done daily and a written performance evaluation should never be a surprise; 2) Be Honest – giving a satisfactory evaluation that is untruthful is an employment litigation landmine; 3) Train Supervisors - how to be great coaches during the performance meeting and give accurate and truthful evaluations, signed by the employee, is your best risk reduction strategy; and 4) Let Them Go - retaining the constant poor performer, or disruptive employee, after the second poor evaluation when the employee has already been warned in writing that termination is on the table, can be a haunting mistake.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Friday, June 6, 2014

Employment Handbook Litigation Landmines

By: Tommy Eden
Terry Freeze was hired by the City of Decherd Tennessee Police Department and later promoted to Chief of Police in August of 2007. Earnest Colvin, Freeze’s brother-in-law, was hired by Freeze as a patrolman in November of 2007.
In a City Board meeting held on February 25, 2009, a group of Board members met with Freeze to discuss the proper procedure for buying dog food for the City’s police canine. During the meeting Freeze was told that the Mayor did not care for Freeze’s wife. According to Freeze’s testimony, he was told that they might need to just let him resign as the Chief and put him in as a sergeant at $15 an hour.” Freeze accepted the demotion rather that contest the issue with the Mayor “who said she thought it was a mistake to hire him in the first place.”
A month later at a regular City Board meeting, another police officer for the City nearly came to blows with a City employee over his suspension. Both Colvin and Freeze stood by and observed and did not intervene to subdue the enraged police officer that was escorted from the meeting and then fired. At this same meeting, the Board voted to terminate the employment of Colvin and Freeze for failure to intervene in the dispute and because “Decherd needed to move on” as well as other grounds for “betterment” of the City. The City did not provide Freeze and Colvin with written notice that their terminations would be considered at the meeting, the opportunity to present witnesses or evidence, there was no hearing on the merits of their discharges and there was no finding supporting a “just cause” termination.
Discovery revealed that in January of 2000 the Board had adopted a Police Resolution that “discipline shall be for cause and shall follow the basic concepts of due process,” including a five step “progressive system when practicable whenever disciplinary action is used,” and that an employee must be informed in writing of the “exact offense violated.” Typical steps followed in a for cause termination.
Freeze and Colvin then filed suit against the City, Mayor and Board members alleging that they were terminated without due process in violation of 42 U.S.C. Section 1983. The 6th Circuit of Appeals last week agreed that the Police Resolution handbook language grant to them a constitutionally protected property right in their City jobs. Case is Freeze v. City of Decherd.
Common Sense Counsel: words do matter and a badly worded employment handbook can create a contract of employment or, in the case of a public entity employee, a constitutionally protected property interest in continued employment that can only be extinguished by following just cause termination steps. An employment handbook can be an employer's best reduction tool or a litigation landmine. Having yours professionally reviewed is the only ways to spot and defuse those landmines.
            Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at