Federal Circuit Courts Find No Causal Connection in Employee Retaliation Claims

The National Law Review recently featured an article, Federal Circuit Courts Find No Causal Connection in Employee Retaliation Claims, written by Katherine G. Cisneros of Schiff Hardin LLP:

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As employers know, retaliation cases are notoriously difficult to defend. However, two recent decisions from federal courts of appeal may help employers prevail in such cases. The Sixth and Seventh Circuit U.S. Courts of Appeals recently affirmed summary judgment in two retaliation cases, both courts holding that the employees’ claims did not establish a causal connection between the protected activity and adverse employment action.

Timing Alone Insufficient Where Multi-Year Gap Between Protected Activity and Adverse Action

In Fuhr v. Hazel Park Sch. Dist., No. 2:08-cv-11652 (6th Cir. Mar. 19, 2013), the Sixth Circuit affirmed summary judgment for Hazel Park School District, finding no causal connection between a coach’s prior lawsuit and her subsequent removal from a coaching position. Fuhr served as the high school girls’ varsity basketball head coach at Hazel Park High. In 1999, Fuhr sued the school district, alleging gender discrimination based on the school district’s failure to hire her as the high school boys’ varsity basketball head coach. At the time, the boys’ and girls’ teams played during different seasons. Fuhr ultimately prevailed and in 2004 became the boys’ basketball coach. Anticipating a federal district court order requiring the basketball seasons be played at the same time, the school district removed Fuhr as the girl’ head coach in 2006 because it would be too difficult to coach two teams in the same season.

Fuhr sued, claiming that her removal as the girls’ coach and other harassing acts were retaliation for prevailing in her previous lawsuit. Fuhr claimed her principal told her that “this is a good old boys network….They are doing this to you to get back at you for winning the lawsuit.” The Sixth Circuit determined that the principal’s statement was too ambiguous to provide direct evidence of unlawful retaliation. The court next found that Fuhr failed to demonstrate a causal connection between her prior lawsuit and removal as the girls’ coach. While a close temporal proximity between events can constitute evidence of a causal connection, here, the “multi-year gap prove[d] fatal” to establishing causality. The court also added that even if Fuhr could prove causation, the school district was able to offer legitimate, non-discriminatory reasons for any alleged harassing actions. Accordingly, the Sixth Circuit affirmed summary judgment for the school district on Fuhr’s retaliation claim based on the lack of any temporal proximity.

Employee’s Disagreement with Employer’s Investigation Does Not Prove Retaliation

In Collins v. American Red Cross, No. 08-cv-50160 (7th Cir. Mar. 8, 2013), the Seventh Circuit affirmed summary judgment in favor of the American Red Cross, finding that the employer’s investigation report, albeit possibly incorrect, is not evidence of unlawful retaliation or discrimination. Collins, an African-American woman, worked for the Red Cross. In 2006, Collins filed a racial discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) based on harassment from her co-workers. Collins received a “right-to-sue” letter, but did not file a suit. In 2007, Collins’s co-workers complained that, among other acts of misconduct, Collins said that the Red Cross was out to get minorities. The human resources officer assigned to investigate found that all of these allegations against Collins were “substantiated,” and Collins was terminated.

Collins sued, claiming that her termination was in retaliation for her filing of the EEOC charge. Collins claimed that the report did not really substantiate the claim that Collins said the Red Cross is out to get minorities, and therefore, the report must have been referring to the EEOC complaint. Although the report was “sloppy, and perhaps it was also mistaken or even unfair,” Title VII only forbids discriminatory or retaliatory terminations. Nothing in the report suggested the Red Cross was concerned with Collins’s EEOC complaint. Collins only provided speculation that the report was incorrect because of the EEOC complaint, and mere speculation is not enough to overcome summary judgment. Accordingly, the Seventh Circuit affirmed summary judgment for the Red Cross on Collins’s retaliation claim because she failed to show a causal link between the filing of her EEOC complaint and her subsequent termination.

The Seventh Circuit also affirmed summary judgment on Collins’s race discrimination claim because Collins failed to prove that the Red Cross’ reason for termination was pretextual, emphasizing that “pretext means a lie.” The only piece of evidence Collins offered was that she denied all the allegations raised by her co-worker’s complaints. Denying the allegations is not enough to survive summary judgment because the “fact that a statement is inaccurate does not meant that it is a deliberate lie.” Evidence that an employer reached the wrong conclusion can suggest discrimination if the conclusion were “incredible on its face.” However, here, the court found that the report’s conclusions were not incredible, and there was nothing in the record to suggest racial animus toward Collins. While the Red Cross’s report may have been wrong, that is not enough for Collins’s claim to survive summary judgment.

Sound Employer Practices Remain Key to Successful Defenses

As is clear from the Seventh Circuit case, employer investigations remain a key component of successful defenses of claims. Employers should utilize human resources or other professionals who are trained in both conducting investigations and writing investigation reports to investigate allegations of harassment, discrimination or retaliation. Also keep in mind that, as the Sixth Circuit case suggests, if a long period of time elapses between the employee’s protected activity and the adverse action, it is likely that additional evidence of retaliatory conduct will be required in order for the employee to prevail. To defeat any such evidence, employers should be sure that the legitimate, non-discriminatory reasons for the actions taken are well-documented.

© 2013 Schiff Hardin LLP

3rd Annual International Trade Compliance Conference

The National Law Review is pleased to bring you information about the upcoming Marcus Evans conference – 3rd Annual International Trade Compliance Conference:

3rd Annual International Trade Compliance - April 24-26 2013

 Navigating the Latest Changes in Trade Regulations and Global Controls for Improved Compliance

24-26 Apr 2013
venue to be confirmed – Chicago, IL, United States of America

Building from the success of our 2012 conference, the marcus evans 3rd Annual International Trade Compliance Conference will bring together senior executives looking to improve processes with evolving global markets, trade agreements, technology requirements and compliance. Additionally, this conference will provide attendees with the latest updates in international trade regulations, as well as insights and tools for strengthening internal operations in order to remain compliant with critical requirements on a day-to-day basis.

The 3rd Annual International Trade Compliance Conference features two distinct tracks; allowing attendees to fully customize their agenda.

Track one focuses specifically on advanced import & customs topics, such as identifying the latest changes to the ISA program, discovering advancements in supply chain programs and applying recent FDA regulation updates to your business plan.

Track two is entirely centered on export controls. Featured topics include evaluating the recent updates to the ECR, understanding requirements for OFAC compliance and dissecting US and global technology regulations for secure transfers.

Delegates are able to mix and match sessions from both tracks to create a complete conference experience that covers every area of interest.

Attending this conference will enable you to:

1.)   Identify the latest regulatory changes within emerging markets for seamless trade operations

2.)   Navigate Free Trade Agreements to increase efficiency and decrease corporate costs

3.)   Institute a successful global trade compliance program to improve company procedures

4.)   Conquer import and export classification for more effective business practices

5.)   Tackle the latest regulations and requirements for technology transfers and determine various tactics for remaining compliant

Industry leaders attending this conference will also benefit from a dynamic presentation format consisting of workshops, panel-discussions, and industry-specific case studies that provide accurate, real-world knowledge. Attendees will experience highly interactive conference sessions, 10-15 minutes of Q&A time after each presentation, 4+ hours of networking, and exclusive online access to materials post-event.

Who Should Attend
marcus evans invites Heads, Vice Presidents, In-House Counsel, and government agencies with responsibilities in the following areas:

-Global/International Trade Compliance
-Import/Export Trade Compliance
-Global Customs Compliance
-Import/Export Operations
-Export Controls

Supreme Court Narrows ‘State Action’ Immunity From Antitrust Laws

GT Law

The U.S. Supreme Court has referred to the federal antitrust laws as “a charter of freedom [having] a generality and adaptability comparable to that found to be desirable in constitutional provisions.” The antitrust laws are generally broadly worded, and they have been subject to various interpretations and reinterpretations over the past century. Certain types of anti-competitive activity, such as horizontal price fixing, have been deemed so obviously harmful to the marketplace as to be declared per se illegal. Others are judged by the so-called “rule of reason” analysis, in which courts weigh the effect on a defined market of the alleged anti-competitive activity.

Click the View Media link to read the full article.

National Institute on E-Discovery 2013

The National Law Review is pleased to bring you information regarding the upcoming ABA Conference – National Institute on E-Discovery 2013:

E-Discovery April 5 2013

When

April 05, 2013

Where

  • Proskauer Rose LLP
  • Eleven Times Square
  • New York, NY 10036-8299
  • United States of America

Nationally-acclaimed e-discovery professionals and judges will convene for a full day to analyze and discuss the latest developments and best strategies for managing the e-discovery process.

Program Focus

Attendees of this program will learn:

  • Comprehensive and practical “issue-spotting”
  • About the continuing rules amendment process directly from members of the federal judiciary, as well as leading-edge issues emerging in their courts
  • How to choose, search, and review technology that fits your case
  • Tips for cost-effective and defensible project management for both requesting parties and producing parties
  • The latest information on e-discovery of “personal data sources” including social media and personal devices
  • How to navigate “discovery about discovery,” including important privilege considerations

HIPAA Omnibus Rule Effective March 26, 2013

The National Law Review recently featured an article, HIPAA Omnibus Rule Effective March 26, 2013, written by the Health Care & Health Care Finance group with Vedder Price:

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The omnibus final rule that amends the privacy, security and enforcement rules1 promulgated under the Health Insurance Portability and Accountability Act of 1996 (the statute and rules, together, HIPAA) requires that Covered Entities revise and redistribute their notice of privacy practices (NPP). As described below, this will generally involve updating NPPs for legally required changes and redistributing the NPPs, whether by posting on an intranet site or distributing hard copies, by September 23, 2013.

The final rule became effective on March 26, 2013; however, Covered Entities have until September 23, 2013 (the compliance date), unless otherwise excepted, to bring their NPPs into compliance. Many of the changes to the NPPs are required pursuant to statutory enactments under the Health Information Technology for Economic and Clinical Health Act (HITECH Act) and the Genetic Information Nondiscrimination Act (GINA). Most new requirements are generally applicable to all Covered Entities, as defined under HIPAA, but certain requirements apply specifically to health plan Covered Entities and health care provider Covered Entities as summarized below.

New Requirements for Covered Entities’ NPPs

A Covered Entity must update its NPP to include these additional elements:

  1. A statement that certain uses and disclosures of protected health information (PHI) require an authorization from the subject individual, specifically psychotherapy notes (if recorded or maintained by the Covered Entity), PHI for marketing purposes and PHI in instances constituting the sale of PHI;
  2. A statement that uses and disclosures not addressed within the NPP require a written authorization;
  3. An acknowledgment that the individual may revoke any authorization granted for uses and disclosures requiring such authorization; and
  4. A notice of the individual’s rights following a breach of unsecured PHI, which can be sufficiently accomplished with a statement that the individual has a right to or will receive notification of a breach of his or her unsecured PHI.

Covered Entities that seek to contact individuals to raise funds for themselves must also include a notice of such intentions and of the individual’s right to opt out of such communications. However, the mechanism for opting out of fundraising communications does not need to be included in the NPP.

Specific Requirements for Health Care Providers’ NPPs

Tangential to new rights created by the final rule for individuals to restrict access to PHI, each health care provider must notify individuals of such new rights through its NPP.

  1. Notice Elements. In addition to those provisions discussed above, health care providers must include in their NPPs a statement notifying the individual of the individual’s right to restrict—and a health care provider’s affirmative obligation to agree to restrict—disclosures of PHI to the individual’s health plan where the individual has paid for the items or services out-of-pocket and in full.
  2. Distribution Methods. The final rule did not amend those provisions relating to the distribution of NPPs for health care providers; however, the preamble to the final rule did clarify the manner in which health care providers are expected to distribute NPPs by the compliance date. NPPs must be available at the delivery site, but health care providers may choose to post a summary of the policy with copies of the entire policy readily available at the patient’s request, with the exception of new patients, who must be given a complete copy and must return a good faith acknowledgment of receipt.

Specific Requirements for Health Plans’ NPPs

  1. Notice Elements. In addition to the above requirements, a health plan that uses PHI for underwriting purposes must include in its NPP a disclosure that the health plan may not use or disclose PHI that is genetic information for underwriting purposes.
  2. Distribution Methods. A health plan that currently posts its NPP on the company’s intranet site must (i) post the revised NPP (or the material changes to the NPP) on the website by September 23, 2013 and (ii) within the next annual mailing, provide the revised NPP or information about the material changes to the NPP and instructions for obtaining a copy of the revised NPP.

Alternatively, for those health plans that do not provide access to the NPP on the company’s intranet site, either (i) the revised NPP or (ii) information regarding the material change in the policy and instructions on how to obtain a copy of the revised notice must be distributed to individuals covered by the subject plan of the NPP within 60 days of such material revision. Distribution may be made via regular mail, hand delivery or, if applicable, electronic means. We anticipate many health plans will distribute a revised NPP as part of open enrollment.

Excepted Entities

The final rule exempts certain entities from specific aspects of the revised NPP provisions. Issuers of long-term care policies do not need to include notice of the restrictions on the use and disclosure of genetic information for underwriting purposes, as GINA did not apply such restrictions to these plans. As discussed above, health care providers are not required to disclose the protections afforded to individuals under GINA in NPPs, as health care providers may continue to disclose genetic information, subject to the minimum necessary requirements and in reliance upon a patient’s health plan’s exclusive obligation to comply with GINA’s restrictions on its use of and requests for such information.

Lastly, those health plans that have previously distributed NPPs in compliance with the final rule (as a result of the statutory enactment of such requirements under GINA and the HITECH Act) do not need to redistribute NPPs by the compliance date.

Action Items

Before September 23, 2013, Covered Entities should revise NPPs to be compliant with the final rule and distribute such revised NPPs in accordance with the specified distribution methods applicable to the Covered Entity. Furthermore, those health plans that have previously distributed NPPs to comply with GINA and the HITECH Act should ensure that all of the elements of the final rule, including those applicable to all Covered Entities, have been satisfied before determining that the exception granted under the final rule applies.


1 45 C.F.R. parts 160 and 164, subparts A and E, 45 C.F.R. parts 160 and 164, subparts A and C, and 45 C.F.R. parts 160, subparts C through E, respectively.

© 2013 Vedder Price

Rainmaker Retreat: Law Firm Marketing Boot Camp

The National Law Review is pleased to bring you information about the upcoming Law Firm Marketing Boot Camp:

rainmaker Feb 2013

WHY SHOULD YOU ATTEND?

Have you ever gone to a seminar that left you feeling motivated, but you walked out with little more than a good feeling? Or taken a workshop that was great on style, but short on substance?

Ever been to an event that was nothing more than a “pitch fest” that left a bad taste in your mouth? We know exactly how you feel. We have all been to those kinds of events and we hate all those things too. Let me tell you right up front this is not a “pitch fest” where speaker after speaker gets up only trying to sell you something.

We have designed this 2 day intensive workshop to be content rich, loaded with practical content.

We are so confident you will love the Rainmaker Retreat that we offer a 100% unconditional money-back guarantee! At the end of the first day of the Rainmaker Retreat if you don’t believe you have already received your money’s worth, simply tell one of the staff, return your 70-page workbook and the CD set you received and we will issue you a 100% refund.

We understand making the decision to attend an intensive 2-day workshop is a tough decision. Not only do you have to take a day off work (all Rainmaker Retreats are offered only on a Friday-Saturday), but in many cases you have to travel to the event. As a business owner you want to be sure this is a worthwhile investment of your time and money.

WHO SHOULD ATTEND?

Partners at Small Law Firms (less than 25 attorneys) Solo Practitioners and Of Counsel attorneys who are committed to growing their firm. Benefits you will receive:

Solo practitioners who need to find more clients fast on a shoe-string budget. In addition to all the above benefits, solo attorneys will receive these massive benefits:

Law Firm Business Managers and Internal Legal Marketing Staff who are either responsible for marketing the law firm or manage the team who handles the law firm’s marketing. In addition to all the above benefits, Law Firm Business Managers and Internal Legal Marketing Staff will also receive these benefits:

Of Counsel Attorneys who are paid on an “eat what you kill” basis. In addition to all the above benefits, Of Counsel attorneys will also receive these benefits:

Associates who are either looking to grow their book of new clients in the next 6-12 months or want to launch their own private practice. In addition to all the above benefits, Associates will also receive these benefits:

Service of Process through Social Media

The National Law Review recently featured an article, Service of Process through Social Media, written by Philip H. Cohen with Greenberg Traurig, LLP:

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In the matter of Federal Trade Commission v. PCCare247 Inc., Case No. 12 Civ. 7189 (PAE), 2013 WL 841037 (S.D.N.Y. March 7, 2013) (PCCare247), the United States District Court for the Southern District of New York sanctioned using social media as a means of circumventing the Hague Service Convention’s standard method of facilitating service among signatory states through designated Central Authorities. Granting the FTC’s motion for leave to effect service of documents by alternative means on defendants located in India, Judge Paul A. Engelmayer’s ruling appears to represent the first time a U.S. court has permitted service of process via Facebook.

In PCCare247, Indian defendants allegedly operated a scheme to convince American consumers that they should spend money to fix non-existent problems with their computers. After the Indian Central Authority was unable to formally serve the Indian defendants pursuant to the Hague Convention, the court granted the FTC’s request to serve process on the defendants by both email and through a Facebook account.

The FTC’s proposed service using Facebook presented the court with a novel issue.  Last year, another court in the Southern District of New York denied a motion to permit a party to effect service using Facebook because the plaintiff had not sufficiently established the credibility of the defendant’s Facebook account.  Fortunato v. Chase Bank USA, N.A., Case No. 11 Civ. 6608 (JFK), 2012 WL 2086950 (S.D.N.Y. June 7, 2012) (Fortunato).  Fortunato involved a domestic defendant accused of committing credit card fraud.  After several failed attempts at personal service, the court rejected the third-party plaintiff’s “unorthodox” proposal to serve process, including by Facebook, citing concerns about the lack of certainty and authenticity of the defendant’s purported Facebook profile.  The court questioned whether the Facebook profile was in fact operational and accessed by the party to be served, noting that the location listed on the profile was inconsistent with four potential addresses a private investigator had identified. The court opted instead for service by publication pursuant to New York rules.

Distinguishing  PCCare247 from  Fortunato, Judge Engelmayer articulated several considerations supporting his confidence in “service by Facebook.” The court observed that under Rule 4(f)(3) of the Federal Rules of Civil Procedure, a court remains free to order alternative means of service on an individual in a foreign country so long as the means of service are not prohibited by international agreement and comport with due process.  The court acknowledged that although service by email and Facebook is not enumerated in Article 10 of the Hague Service Convention, India has not specifically objected to them. Therefore, under Rule 4(f)(3) the court found that it was free to authorize process by these means provided that doing so would satisfy due process.

Recognizing that the reasonableness inquiry is intended to “unshackle[] the federal  courts from anachronistic methods of service and permit[] them entry into the technological renaissance,” quoting Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1017 (9th Cir. 2002), the court concluded that Facebook was “reasonably calculated to provide defendants with notice of future filings” in the case. In support of its conclusion, the court explained that the defendants ran an Internet-based  business and that the email addresses specified for the defendants were those used for various aspects of the  alleged scheme.  For two of the Indian defendants in PCCAre247, their Facebook accounts were registered to the same email addresses to be served. Moreover, the court had “independent confirmation” that one of the email addresses identified was genuine and operated by a defendant, because it had been used to communicate with the court on several occasions.  Additional evidence that the Facebook profiles were authentic included that some of the defendants listed their job titles at the defendant companies and that the defendants were  Facebook “friends” with each other. Additional considerations the court noted were: the FTC had made several good faith efforts to serve the defendants by other means; and defendants had already demonstrated knowledge of the lawsuit. Accordingly, the FTC’s proposal to serve process by both email and Facebook was a combination that satisfied due process as a means of alternative service and was highly likely to be an effective means of reaching and communicating with the defendants.

This decision suggests that under the right circumstances, where a party establishes a reasonable foundation for the authenticity of the accounts, service via email and social media may be an economical and effective option for serving process on foreign parties, or even domestic parties that are otherwise difficult to track down by traditional means.

©2013 Greenberg Traurig, LLP