Earlier this week, I published who I thought was the winner of the Employment Law bracket in this year's March Madness. Today, I present to you, in my sole subjective opinion, the biggest loser of this year's Employment Law bracket: the City of Tuscaloosa/Tuscaloosa Police Department. Anna Claire Vollers, a writer for Al.com, published an in-depth story on March 30 detailing a $374,000 jury verdict in favor of Stephanie Hicks against the City of Tuscaloosa/Tuscaloosa Police Department (TPD). According to the story, (which at the time I am writing this post, the TPD had not responded to Ms. Vollers's request for comments) Ms. Hicks, whose husband was also an officer with TPD, began working for TPD in 2008. In 2011, she was promoted to Investigator and spent time in the narcotics division. Several months after the promotion, she learned that she was pregnant and advised her captain. Her son, Will, was born in 2012, and she returned to work from her FMLA leave 3 months later.
When she advised her sergeant that she was going to apply for FMLA leave and take the full 12 weeks, he reluctantly signed off on the paperwork. While on leave, another agent called her and said that he heard two supervisors planning to write her up when she returned to work. The morning she returned to work, while she was still breast feeding Will, she received two written disciplinary actions, including one for failure to change the oil in her police car, which was not something she, or any other officer, was supposed to do. The second write up was because she wrote too many warrants.
She required several breaks a day to pump breastmilk, and TPD required her to pump in the locker room, instead of a private location. The Affordable Care Act mandates that employers provide reasonable break times for pumping breastmilk and “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.” Ms. Hicks said that when she complained about the forced use of the locker room, and that when she would pump breastmilk, “she'd get a call on her radio from her fellow officers, telling her to ‘wrap those boobs up' because it was time to execute a search warrant.”
Approximately a week after her return from FMLA leave, she was demoted from investigator to patrol, with a decrease in pay and the loss of a TPD vehicle, and she was forced to begin working nights and weekends instead of her prior 7 a.m. to 4 p.m. shift. As a result of being reassigned to patrol, Hicks was required to wear a bullet-proof vest while on duty. She talked to her obstetrician, who wrote a letter to the chief that he thought that the snug vest would reduce her supply of milk and could put her at risk of mastitis, an infection of the breast tissue that is very painful. The day before she was to start her patrol assignment, she met with the chief “who said her options were to not wear the vest-which would be ‘a death wish'…or wear an oversized vest loosely, which would be unsafe. She could also quit breastfeeding. Or she could quit.” When she questioned the chief, her supervisor and her sergeant about the reassignment, they all gave different reasons for the reassignment. Due to how she was being treated, Hicks saw her department's counselor, “who recommended she take some sick days and consider getting evaluated for post-partum depression.” All her performance evaluations prior to her maternity leave indicated she was performing at or above standards. The first evaluation post maternity leave resulted in low marks. She requested an accommodation: to be placed at a desk job which would have made it easier to pump breastmilk. This request was denied. Two months after returning from maternity leave, she quit.
She filed suit in November, 2013 and the case was tried in February, 2016. The jury agreed with Hicks that the hostile work environment was the cause of her constructive discharge, and that the TPD violated the Pregnancy Discrimination Act. The jury returned a verdict in the amount of $374,000. TPD is appealing the verdict.
Practice pointers. As discussed yesterday in the Dollar General case, DG had rules and procedures in place, appeared to have properly trained it's staff, and followed their rules. Although DG made the decision to terminate while Ms. Thomas was still on FMLA leave, the facts were sufficient to permit DG to obtain summary judgment in its favor on all counts. In the Hicks case, it appears as if TPD did everything it could to ensure Ms. Hicks would be successful in her lawsuit: no policies or procedures for pregnant employees were in place, changing her evaluations from good to bad, discussing and writing her up for absurd reasons, demoting her, requiring her to wear equipment that could impair her ability to breastfeed her son, violating the ACA as to a private place to pump, creating a hostile work environment, and forcing her to resign shortly after returning from FMLA leave. All because she became pregnant and took leave.
These two cases are the best examples I can provide to support my constant reminder that employers need to train, train and train some more, and document, document and document some more. DG is the big winner this year. TPD is the big loser this year. Their luck may change on appeal, although I doubt it if the facts in the Al.com story are the facts that were presented to the jury.
Consolation Bracket Results
In the consolation bracket, there appears to be a tie between the winners and the losers. In my sole subjective opinion, the winners are unions, employees and employers. The losers are unions, employees, employers, the American public and election year politics. When Justice Scalia passed away recently, the United States Supreme Court was left with only 8 sitting Justices. One of the fears of many in the legal community was the possibility of tie votes, especially in light of the numerous 5-4 decisions over the past several years. On March 29, the Supreme Court released a one line decision, leaving in place the 9th Circuit's opinion holding that non-union public school teachers in California could be required to pay “agency fees” to a union for its bargaining activities. The vote was 4-4. I expect there will be more 4-4 votes, which will continue to result in a split among the various circuits on a number of important issues, some of which are employment related. In a 4-4 decision, depending on how the lower court ruled, the winners could be unions, employees or employers. The losers could be unions, employees, employers and the American public. The American public will continue to lose because of election year politics in Washington as it relates to replacing Justice Scalia on the Supreme Court.