Tag: Chipotle

California Jury Rejects Employee’s Discrimination Claims Against Chipotle

Proving it still is possible to obtain a favorable jury verdict in California (see contrary evidence), a federal jury sided with Chipotle Mexican Grill last Wednesday in a case involving disability discrimination claims by former assistant store manager, Lucia Cortez.

Cortez alleged she suffered a miscarriage at work after years of trying to get pregnant, fell into a depression, and then needed extended medical treatment as a result. In response to her request for leave, her manager gave her 12 weeks of unpaid family medical leave. When Cortez later asked for another month off to “sort out a final doctor’s appointment,” her manager granted her one additional “courtesy week” of leave. Cortez then went behind her manager’s back and got her leave extended by another month by calling the employee benefits center.

Cortez failed to provide any medical documentation when she asked for the additional time off, while at the same time claiming that she might not be medically approved to return to work. When Chipotle informed Cortez that they were about to fill her position, she immediately asked to be put back on the schedule. Her manager refused to put her back on the schedule until she produced a doctor’s note certifying that she was able to return to work.

Cortez never sent Chipotle the required medical documentation and was thereafter fired, but was also told she could reapply for her job without losing any of her tenure or benefits. Instead of simply reapplying once she was able to return to work, Cortez sued Chipotle for discrimination based on an alleged mental disability and failure to accommodate.

Fortunately, the jury sided with Chipotle, finding that Cortez’s leave of absence and her alleged disability were not motivating factors in her termination. The jury found that her failure to return to work was the motivating factor for her discharge and that Chipotle had not failed to reasonably accommodate her alleged disability.

An employer can indeed require an employee to submit documentation from a health care provider, certifying that the employee is able to resume work following a medical leave (Cal. Code Regs. tit. 2 § 11091(b)(2)(E)). This case demonstrates, however, how complicated even a simple leave of absence situation can be in California and how easy it is for disgruntled employees to sue their employer – and to try to get a jury to second-guess the employer. The employer in this case no doubt incurred hundreds of thousands of dollars in costs and attorney’s fees in successfully defending against this action – none of which can be recovered from the employee who justifiably lost the case.

 

© 2019 Proskauer Rose LLP.
This post was written by Anthony J Oncidi and Cole D. Lewis of Proskauer Rose LLP.

Termination For Conduct Caused By Side Effects of Prescription Medication Was Not Disability Discrimination

Chipotle Mexican Grill, Disability Discrimination

A federal court in Florida has upheld an employee’s termination due to her “inebriated” conduct that was caused by her use of prescription medications, holding that her discharge did not constitute disability discrimination. Caporicci v. Chipotle Mexican Grill, Inc., Case No. 8-14-cv-2131-T-36EAJ (M.D. Fla. May 27, 2016).

Lisa Caporicci worked for Chipotle as a crew member and had a long history of depression and bi-polar disorder. In April 2013 she informed her manager that she took medication for bi-polar disorder but did not mention any side effects or behavioral issues that might arise from taking the medication.

In May 2013, Caporicci began taking new medication because she was experiencing panic attacks. At that time, she requested a few days off and her request was granted.  She did not work for five days and returned on June 4, 2013.  Four days later, she reported for work in what appeared to be an inebriated state.  She was “very slow, messed up orders and was incoherent.”  Caporicci’s supervisor took her off the serving line and sent her home.  She was fired later that day, for violating Chipotle’s Drug and Alcohol Policy, which prohibits employees from reporting for work or being at work under the influence of alcohol, drugs or controlled substances, or with any detectable amount of alcohol, drugs or controlled substances in his or her system.  The policy further provides that if an employee takes prescription medication that may adversely affect the ability to perform the job, he/she must notify his/her manager prior to starting work.

Caporicci asserted disability discrimination claims under federal and state law, as well as FMLA interference and retaliation claims. Her FMLA claims were dismissed because she had been employed less than 12 months.  As to her disability discrimination claims, Caporicci argued that firing her for medication side effects was tantamount to firing her for her disability.

The Court noted that courts are split on the question of whether a termination based on conduct related to, or caused by, a disability constitutes unlawful discrimination. The majority position, which includes courts in the Eleventh Circuit, holds that an employer may discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability.  Additionally, the U.S. Supreme Court discounted the minority position in Raytheon Company v. Hernandez, 540 U.S. 44, 55 n.6 (2003), stating:  “To the extent that [the Ninth Circuit] suggested that, because respondent’s workplace misconduct is related to his disability, petitioner’s refusal to rehire respondent on account of that workplace misconduct violated the ADA, we point out that we have rejected a similar argument in the context of the Age Discrimination in Employment Act.”

For these reasons, the Court followed the majority position and held that Caporicci’s termination was not discrimination based on her disability, but rather, it was the result of her employer’s application of a neutral policy which prohibited employees from reporting to work under the influence of drugs or alcohol.

Article By Kathryn J. Russo of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016

Burrito Bowls, Guacamole, &. . .Tweets? NLRB Judge Finds Social Media Policy Unlawful

There’s more bad news this week for restaurant chain Chipotle Mexican Grill, but this time it has nothing to do with the food.

Last year, we heard about an NLRB decision upholding an administrative law judge’s (ALJ) finding that the restaurant had committed an unfair labor practice. According to the decision, Chipotle had allegedly threatened and interrogated employees who engaged in discussions about their pay. The employee at issue in the case had worked at a Chipotle restaurant in St. Louis, Missouri. He was also a union member who participated in strikes and was involved with the “Show Me 15” campaign for a higher minimum wage.

That decision is currently pending appeal, and Chipotle has suffered another NLRB loss this week. An ALJ ruled against the restaurant and found an unfair labor practice charge for what the judge described as the company’s unlawful social media code of conduct. The case involves a Chipotle employee in Havertown, Pennsylvania, named James Kennedy. By way of background, Chipotle employs a national social media strategist who is responsible for reviewing employees’ social media posts to determine whether any of them violate the company’s social media policy.

In early 2015, some of Kennedy’s tweets were reviewed by the strategist, including one where Kennedy had replied to a few customers’ tweets. For example, in response to a customer who tweeted “Free chipotle is the best thanks,” Kennedy tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Then, replying to a tweet posted by another customer about guacamole, Kennedy wrote “it’s extra not like #Qdoba, enjoy the extra $2.”

Chipotle’s social media strategist emailed the regional manager, forwarded the tweets, and told the manager to ask Kennedy to delete the tweets and to review the company’s social media policy with him. Kennedy was subsequently terminated following a dispute with management over an unrelated issue.

The ALJ evaluated whether Chipotle maintained an unlawful social media policy based on the following provisions:

  • If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.
  • You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.

Generally a violation of the act based on an unlawful work rule is dependent upon a showing of one of the following: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004). The ALJ found that the company’s social media policy failed on the first and third prongs.

Picking apart the provision, the ALJ relied on other Board decisions which found rules prohibiting “derogatory” statements to be unlawful. The ALJ also took issue with the prohibition on “false” statements, saying, “[M]ore than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive.” The ALJ also found no relief based on the policy’s disclaimer which said “This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or any other privacy rights.”

Although the employee was not ultimately terminated for posting the tweets, employers can still get in trouble with the NLRB where social media policies are concerned. Considering NLRB decisions regarding work rules and handbook policies apply regardless of whether the employees are unionized. We’ll follow this case as it makes its way to the full Board.

Article By Jackie S. Gessner of Barnes & Thornburg LLP

© 2016 BARNES & THORNBURG LLP

Burrito Bowls, Guacamole, &. . .Tweets? NLRB Judge Finds Social Media Policy Unlawful

There’s more bad news this week for restaurant chain Chipotle Mexican Grill, but this time it has nothing to do with the food.

Last year, we heard about an NLRB decision upholding an administrative law judge’s (ALJ) finding that the restaurant had committed an unfair labor practice. According to the decision, Chipotle had allegedly threatened and interrogated employees who engaged in discussions about their pay. The employee at issue in the case had worked at a Chipotle restaurant in St. Louis, Missouri. He was also a union member who participated in strikes and was involved with the “Show Me 15” campaign for a higher minimum wage.

That decision is currently pending appeal, and Chipotle has suffered another NLRB loss this week. An ALJ ruled against the restaurant and found an unfair labor practice charge for what the judge described as the company’s unlawful social media code of conduct. The case involves a Chipotle employee in Havertown, Pennsylvania, named James Kennedy. By way of background, Chipotle employs a national social media strategist who is responsible for reviewing employees’ social media posts to determine whether any of them violate the company’s social media policy.

In early 2015, some of Kennedy’s tweets were reviewed by the strategist, including one where Kennedy had replied to a few customers’ tweets. For example, in response to a customer who tweeted “Free chipotle is the best thanks,” Kennedy tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Then, replying to a tweet posted by another customer about guacamole, Kennedy wrote “it’s extra not like #Qdoba, enjoy the extra $2.”

Chipotle’s social media strategist emailed the regional manager, forwarded the tweets, and told the manager to ask Kennedy to delete the tweets and to review the company’s social media policy with him. Kennedy was subsequently terminated following a dispute with management over an unrelated issue.

The ALJ evaluated whether Chipotle maintained an unlawful social media policy based on the following provisions:

  • If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.
  • You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.

Generally a violation of the act based on an unlawful work rule is dependent upon a showing of one of the following: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004). The ALJ found that the company’s social media policy failed on the first and third prongs.

Picking apart the provision, the ALJ relied on other Board decisions which found rules prohibiting “derogatory” statements to be unlawful. The ALJ also took issue with the prohibition on “false” statements, saying, “[M]ore than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive.” The ALJ also found no relief based on the policy’s disclaimer which said “This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or any other privacy rights.”

Although the employee was not ultimately terminated for posting the tweets, employers can still get in trouble with the NLRB where social media policies are concerned. Considering NLRB decisions regarding work rules and handbook policies apply regardless of whether the employees are unionized. We’ll follow this case as it makes its way to the full Board.

Article By Jackie S. Gessner of Barnes & Thornburg LLP

© 2016 BARNES & THORNBURG LLP

California Court Curbs Chipotle GMO Case

Chipotle dodges non-GM class action lawsuit…for now.

Sign is seen at a Chipotle Mexican Grill restaurant in San Francisco, California
A sign is seen at a Chipotle Mexican Grill restaurant in San Francisco, California July 21, 2015. REUTERS/Robert Galbraith

  • In 2015, Chipotle Mexican Grill launched a nationwide advertising campaign premised on the chain’s pledge to serve food made only with non-genetically modified (GM) ingredients.  However, the company continued to serve meat and dairy products from animals that consume GM crops, as well as beverages with GM ingredients (e.g., sodas with corn syrup from GM corn).  A class action lawsuit was filed against Chipotle in the “Food Court” (Northern District of California), based on allegations that the chain’s non-GM advertising campaign violates California consumer protection, false advertising, and unfair competition laws.

  • On February 5, the lawsuit was dismissed.  The judge found that the plaintiff had failed to specify that she purchased food in the “GM” categories (i.e., meat, dairy, or soft drinks) and thus failed to connect economic injury to the allegedly deceptive claims.  In the dismissal order, the judge also questioned the plaintiff’s allegations that a reasonable consumer would interpret Chipotle’s non-GM ingredient claims to extend to meat and dairy products derived from animals that never consumed any GM ingredients.

  • Although the plaintiff in this case may file an amended complaint in the future, the dismissal suggests that the court may be looking for additional support for the notion that reasonable consumers hold the same strict interpretation of non-GM claims.  Even Vermont’s GM labeling requirements provide exemptions for animal products derived from animals that consumed GM crops, which suggests that it might be an uphill battle to establish that such products should themselves be considered “GM.”

Article By Food & Drug at Keller and Heckman LLP
© 2016 Keller and Heckman LLP