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Eighth Circuit Affirms Denial of Tenure to Female Muslim Professor

  

 

Qamhiyah, a Palestinian Muslim woman, was hired by Iowa State University (“ISU”) as a full-time, non-tenured Assistant Professor in the Mechanical Engineering Department of the College of Engineering. Qamhiyah was later considered for tenure. However, the voting members of the Department and College of Engineering overwhelmingly recommended against her tenure. She appealed the recommendations to the Appeals Committee, asserting that discrimination and flaws in the lower-level voting process had tainted later votes. The Appeals Committee nonetheless affirmed the recommendations to deny Qamhiyah tenure. Qamhiyah then appealed to the Board of Regents. Although the Board of Regents found that the Department violated its tenure-review procedures by failing to apprise Qamhiyah in writing the reasons for its negative recommendations, the Board ultimately affirmed the recommendations to deny Qamhiyah tenure.

 

In her appeal to the 8th Circuit, Qamhiyah asserted that she was denied tenure because of her national origin, religion, gender, and the pregnancies she had while working for ISU. Specifically, Qamhiyah argued that direct evidence of discrimination in the lower levels of the review process tainted the process such that the Board of Regent’s decision was biased. This argument invoked the “cat’s paw” theory of liability analysis, that is, an employer may be liable where a biased subordinate who harbors an unlawful motive for discrimination uses the formal decision maker as a conduit to advance a discriminatory employment action. The Court rejected this argument, reasoning that Qamhiyah was given multiple occasions to voice her concerns and to respond to criticisms during the tenure-review process, and that evaluators, at almost every level, criticized Qamhiyah’s record and overwhelmingly agreed that she did not satisfy ISU’s standards for tenure.

 

Qamhiyah alternatively asserted, under the McDonnell Douglas burden-shifting framework, that ISU’s grounds for denying her tenure were pretextual because of the procedural irregularities in the voting process and that her credentials, compared to other candidates, were sufficient to justify tenure. Under the McDonnell Douglas analysis, a Title VII plaintiff has the initial burden of establishing a prima facie case of discrimination. The burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action. The burden then shifts back to the employee to demonstrate that the stated legitimate, non-discriminatory reason was a mere pretext for discrimination. The Court found that, while departures from procedure could raise a question as to the good faith of the tenure decision process, Qamhiyah did not offer evidence of procedural deviations sufficient to view the denial of tenure as pretextual. The Court stated that the denial of tenure was supported by the evidence, as nearly every voting member found her to be unqualified, and that Qamhiyah was given substantial opportunity to cure any perceived irregularities through ISU’s appeals process.

 

Medicare Secondary Payer (MSP) Act Pains 

 

 

 

 

The general concept of the Medicare Secondary Payer (MSP) Act provides that Medicare is not responsible for payment on a health claim when the claim is otherwise payable under another health plan. This basic premise makes a lot of sense, but employers are often held responsible for the claim when the government seeks to recoup any money that it believes was inappropriately paid from Medicare. The Act provides, in part, that after proper notice of a determination is provided to the Health Plan and the employer that contributes to the Plan, Health Plans and/or employers must take immediate action to preserve any objection that it may have in response to the determination (i.e., request a hearing regarding the determination). Otherwise, after 65 days of the notice of determination, the determination is binding, and the Government will submit the debt to Financial Management Service (FMS) of the Department of Treasury for debt collection services. FMS, in turn, will take action to collect the debt by contracting with private collection contractors to recover delinquent debts through any money that the employer will receive from the U.S. Government. In summary, when an employer receives notice regarding the MSP Act, it should contact counsel to make sure that it proceeding properly, as failure to do so can otherwise leave the Plan and/or the employer with a huge recoupment claim.

 

If you have any other questions about the MSP Act, please contact Amber Bagley.

Repeated Harassment is "Good Cause" for Purposes of Unemployment 





Travis "Bo" Loftis, Sr.

bloftis@cgwg.com

 

The Arkansas Court of Appeals held in Relyea v. Director, Department of Workforce Services, 104 Ark.App. 235 (2008), that a plaintiff who had been repeatedly sexually harassed had “good cause” to leave her employment and was not disqualified from receiving unemployment benefit payments. The plaintiff in Relyea was subject to sexual harassment by a co-worker for at least the last eight months of the plaintiff’s employment. The co-worker made inappropriate comments and gestures to the plaintiff, which eventually escalated into physical altercations, including rubbing the plaintiff’s back and trying to kiss her. When the plaintiff informed the co-worker that his actions were in appropriate and that he made her feel uncomfortable, he would physically express his anger with her.

 

Other employees noticed the co-worker’s harassment. One employee testified that he witnessed the co-worker touching the plaintiff and that the co-worker stopped touching her when he saw the employee notice the touching. Testimony also revealed that the co-worker made comments about the plaintiff outside the plaintiff’s presence. 

 

The owner of the company eventually witnessed the co-worker’s behavior. The plaintiff then reported the scope of the co-worker’s harassment. The plaintiff continued to work for a few days, but her co-worker’s behavior did not improve. Based on other co-workers’ comments on the situation regarding how she dressed, the plaintiff suspected that she would be blamed for the harassment.

 

In his testimony, the co-worker did not deny touching the plaintiff and admitted that she had expressed discontent with his actions. The co-worker agreed that he had crossed the line, but conceded that he had a problem and was trying to deal with it.

 

In response to the situation, the owner gave the plaintiff three weeks off. The owner also reassigned the plaintiff to another office, but her new office was still in the same building as the co-worker, and her job duties still required interaction with the co-worker. The owner required the co-worker to apologize to the plaintiff and even threatened to force the co-worker to take vacation time. Despite these efforts, the plaintiff felt that the situation would not improve upon her return and voluntarily terminated her employment.

 

Arkansas Code Annotated section 11-10-513(a) (1) states that “an individual shall be disqualified for benefits if he or she voluntarily and without good cause connected with the work left his or her last work.” Good cause is defined as “a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment.” Perdrix-Wang v. Dir., Employment Sec. Dep’t 856 S.W.2d 636 (1993). The Arkansas Board of Review denied the plaintiff benefits under the statute, finding that she left her work without good cause connected with the work.

 

The Arkansas Court of Appeals reversed, stating that the Board of Review could not have reasonably reached the decision that the plaintiff left her employment without good cause. Relying on Boothe v. Dir. Employment Sec. Dep’t, 59 Ark.App. 169 (1997), the court held that repeated harassment can constitute good cause for leaving employment and that the plaintiff in this case had good cause. The reason the court found that good cause was present was that the plaintiff was repeatedly subjected to sexually battery and her employer had not discharged the offender or separated her from the offender. Thus, the court held that the plaintiff was entitled to unemployment benefits under Arkansas Code Annotated 11-10-513.

 

 

 

 

On June 25, Representative Lynn Woolsey (D-Calif.), along with 25 co-sponsors, introduced a bill called the “Balancing Act of 2009” that would amend and expand the Family and Medical Leave Act (“FMLA”). The bill would allow employees to take 12 weeks of paid leave for family issues or parental involvement and up to 7 days of paid sick leave. It also includes several other expansions of the current FMLA.

The proposed purpose of the bill is “[t]o improve the lives of working families by providing family and medical need assistance, child care assistance, in-school and afterschool assistance, family care assistance, and encouraging the establishment of family-friendly workplaces.”

 

The bill would allow employees to take up to 12 weeks of paid leave for 1 or more of the following reasons:

Note the inclusion of domestic partner defined as a “same sex spouse as determined under the applicable law of the state. . .where the employee resides” or “in the case of an unmarried employee who lives in a State where a person cannot marry a person of the same sex under the laws of the State, a single, unmarried adult person of the same sex as the employee who is in a committed, intimate relationship with the employee, is not a domestic partner to any other person, and who is designated to the employer by such employee as that employee’s domestic partner.”

Employees who take leave under this portion of the bill would receive benefits from a federal “Family and Medical Leave Insurance Fund.” Employers and employees would each pay a premium equal to .2 percent of each employee’s earnings. Employers with less than 50 employees are not bound to participate in the program, but may choose to participate. Employers employing less than 20 employees who choose to participate would only pay a .1 percent premium. Employers with 50 more employees may opt out of the program if they offer a plan providing equal or greater benefits to their employees.

The bill states that, for an employee to be eligible for paid leave, the employee must have “earned wages with a covered employer for a minimum of 6 months prior to filing an application for leave benefits under this part” and “been employed by the employer with respect to whom paid leave is requested for at least 625 hours of service during the previous 6 months.”

Paid Sick Leave

Under the new bill, employers with 15 or more employees would be required to provide employees with 7 days of paid sick leave each year on an accrued basis. Employees would earn 1 hour of sick leave for every 30 hours worked, to a maximum of 56 hours per year, which is equivalent to 7 days. Employers may allow, but are not required to allow, employees to accrue paid sick leave in excess of 56 hours.

The sick leave would begin accruing on an employee’s first day on the job, and the employee would be eligible to use the time after 60 days of employment. Although the earned sick leave would transfer over to the next year, employers would not be required to allow employees to accrue more than 56 hours.

Employers could use the leave when they are sick or to care for sick parents or children. Leave could also be used to obtain medical care, obtain services from a victim services organization, or to participate in legal proceedings because of being victimized by domestic violence, stalking, or sexual assault.

Parental Involvement Leave

The bill would allow employees to take leave to participate in their children’s and grandchildren’s educational and extracurricular activities. Employees would also be able to take “family wellness” leave to take family members to medical appointments. But employees may not exceed 4 hours of leave during any 30-day period or 24 hours leave during any12-month period. This portion of the bill would apply to employers with 25 or more employees.

Domestic Violence Leave

The bill would also allow workers to address issues related to sexual assault or domestic violence. It would apply not only to employees but also to family members of employees who are addressing sexual assault or domestic violence. Under the bill, family member means a parent, spouse, or child. The bill would also permit leave to care for a domestic partner, child of a domestic partner, parent-in-law, or same-sex spouse who has a serious illness.

The bill was referred to the House Education and Labor Committee, the House Oversight and Government Reform Committee, the House Armed Services Committee, the House Ways and Means Committee, and the House Administration Committee.

 

 

 

In the current economic pinch, many employers are considering ways to cut expenses while avoiding layoffs and their associated costs, such as lower employee morale, increased unemployment benefits, costly outplacement services, and the risk of employment litigation. If this describes your current business situation, employee furloughs may be an attractive, cost-saving option.

 

Employee furloughs are typically sought where, because of a business’ decreased sales, an employee’s compensation exceeds the value of his or her output. Furloughs are typically structured as employee time off without pay as so to better align the employee’s productivity with the decreased business demands. An employee may, for example, be required to take off a certain day of the week when business is the slowest. This arrangement means, of course, less time worked and less compensation paid. However, furloughs should not be implemented quickly. Careful consideration as to how to administer the furlough should be taken.

Furloughing a non-exempt employee is relatively easy. Under federal and state law a non-exempt employee must be paid the minimum wage for their actual hours worked and time and one-half for overtime. Thus, the furloughed employee’s wage is easily calculated based on the reduced hours.

Exempt employees, however, require a little more caution. Under the Fair Labor Standards Act, a non-exempt employee is entitled to be paid a minimum weekly salary, currently $455.00, for any week in which they perform work. To pay an exempt employee less than $455.00 per week will cause loss of the exemption. Further, when an exempt employee’s salary is reduced based on an hourly, non-exempt calculation, such action may jeopardize their exempt status in the future.

 

Employers should also be aware of discrimination issues when implementing furloughs. Employers should assure that the basis for selecting which employee or group of employees to be furloughed is not illegal. Never furlough an employee on basis of a protected class (sex, age, race, color, national origin, religion) or because an employee has a disability.

Lastly, the employer should give consideration to state employment laws that may impose higher standards; the terms of the collective bargaining agreement, if one exists; and any policies regarding time off or use of accrued personal time off. Such issues may impose different constraints on how the furlough is governed.

Before implementing changes to your compensation plan or general employment practices, legal counsel should be consulted. For clarification on furloughs, compensation plans, or general employment practices, please contact an attorney at Cross, Gunter, Witherspoon & Galchus, P.C.

 

 

All legislation, without an emergency clause or specified date, passed by the 87th Arkansas General Assembly went into force July 31, 2009. Several new laws relating to labor and industrial relations, health, construction, taxes, lien law, transportation, and more are now effective.



For summary of all new general legislation, please visit:

News Around the Firm

 

Cross Gunter Witherspoon & Galchus is proud to announce that 10 of its attorneys have been named to the 2010 edition of Best Lawyers®, the oldest and most respected peer-review publication in the legal profession. First published in 1983, Best Lawyers is based on an exhaustive annual peer-review survey. The attorneys that have been recognized with this honor include:

Carolyn Witherspoon will participate in the Memphis Area EEOC Seminar on August 26 -27 in Robinsonville, MS, and also at the 2009 Canadian Transport Lawyers Association on “Hot Topics in Labour and Employment” at the 2009 annual conference from October 1-3, 2009 in Niagara-on-the-Lake, Ontario.

 

Ben Shipley will be presenting at the Arkansas Association of Educational Administrators Summer Conference on August 3 at the Doubletree Hotel in Little Rock. 

Rick Roderick spoke at two firm Basic Supervisory Training seminars in June in Little Rock and in Jonesboro. His topics were: Discipline, Termination and Documentation and Harassment Prevention.

 

Allen Dobson spoke at two firm Basic Supervisory Training seminars in June in Little Rock and in Jonesboro. His topics were: ADA and FMLA Leave and FLSA Issues.

 

Brian Vandiver and Jess Sweere will be speaking at the Arkansas Bankers Association's Human Resources Conference on September 23, 2009 at the Holiday Inn Presidential in Little Rock.  Mr. Vandiver will be the keynote speaker discussing legislative updates.  Mr. Sweere will lead a breakout session entitled "Employee Free Choice Act and How It Affects Everyone." 

 

At the annual Arkansas Bar Association meeting held in Hot Springs this past June, Scotty Shively was elected to the Arkansas Bar Foundation Board of Directors and also Chair of the Arkansas Bar Alternative Dispute Resolution (ADR) Section.

 

Amber Wilson Bagley has been elected Chair of the Health Law Section of the Arkansas Bar Association during its annual meeting in June.

 

David Dixon spoke at the 31th Annual Arkansas Chapter of the Government Finance Officers Association Summer Conference held July 29 – July 31, 2009 at the Holiday Inn City Center in Fort Smith.  His topic was legislative updates. 

In June, Elizabeth Cummings spoke on equal pay legislation at the Central Arkansas Chapter of the American Society of Women Accountants.

 

Bo Loftis presented for the Arkansas Public Employers Human Resources Association on July 31.  His presentation was entitled "A New Administration and New Employment Legislation."