D.C. Court Clarifies Pleading Requirements in Employment Cases

In Rouse v. John Berry, Civil Action No. 06-2088, Judge Richard W. Roberts of the U.S. District Court for the District of Columbia denied the Office of Personnel Management Director’s (“OPM Director”) and Long Term Care Partners’ (“LTC Partners”) motions to dismiss a complaint brought under § 501 of the Rehabilitation Act, arguing that the plaintiff failed to allege sufficient facts that demonstrate that the administration of the plan was a subterfuge for discrimination. The plaintiff, who has paraplegia and uses a wheelchair, alleged that the defendants unlawfully discriminated against him because of his disability when they rejected his Federal Long Term Care Insurance Program (“FLTCIP”) application due to his wheelchair use.

This case is significant for its interpretation of the heightened pleading standards of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) in the context of an employment discrimination case. Citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 534 (2002), Judge Roberts noted that in a fairly straightforward employment discrimination complaint, plaintiffs traditionally have not been subject to a heightened pleading standard. Importantly, he pointed out that Twombly explicitly disavowed any retreat from Swierkiewicz, and that Iqbal did not discuss, much less disavow it. Judge Roberts sided with the plaintiff and his counsel, Jim Bailey, of Bailey & Ehrenberg PLLC, holding that “because Rouse has pled facts demonstrating that he has suffered an adverse employment event because of his disability, he has established a claim under § 501 even without establishing that the administration of the benefits plan is a subterfuge for discrimination.”

Significant Stock-Drop Decision Adopts Presumption of Prudence

In what many are already calling a major victory for the ERISA defense bar, the U.S. Court of Appeals for the Ninth Circuit recently adopted the rebuttable “presumption of prudence” for fiduciaries defending ERISA "stock-drop" lawsuits in Quan v. Computer Sciences Corp. (9th Cir., No. 09-56190, 9/30/10). Following what has been labeled as the “Moench” presumption, the Ninth Circuit joined with the U.S. Courts of Appeals for the Third, Fifth, and Sixth Circuits, which have all applied the presumption in cases where employers who offered employer stock in their defined contribution plans were sued by plan participants after the value of the employer stock sharply decreased. The presumption originated with the Third Circuit's decision in Moench v. Robertson, 62 F.3d 553, 19 EBC 1713 (3d Cir. 1995), and is often relied upon by the defense bar in support of early motions to dismiss in such stock-drop lawsuits.

According to the Ninth Circuit, "if properly formulated, the Moench presumption can strike the appropriate balance between the employee ownership purposes of [employee stock ownership plans and other eligible individual account plans], and ERISA's goal of ensuring proper management of such plans.” “We adopt the Moench presumption because it provides a substantial shield to fiduciaries when plan terms require or encourage the fiduciary to invest primarily in employer stock. Fiduciaries are not expected to predict the future of the company stock's performance." The Ninth Circuit noted its view that the Moench presumption will not “entirely insulate” a fiduciary from liability, because the presumption can be rebutted by a showing that a fiduciary abused its discretion by investing in employer stock. To overcome the presumption, a plaintiff must make allegations that “clearly implicate a company's viability as an ongoing concern” or show a “precipitous decline in employer stock ... combined with evidence that the company is on the brink of collapse or is undergoing serious mismanagement,” the court said. In addition, the court said there is no bright-line rule as to how much evidence is needed to rebut the Moench presumption. “A guiding principle, however, is that the burden to rebut the presumption varies directly with the strength of a plan's requirement that fiduciaries invest in employer stock,” the court said. The court then found that the CSC plan participants were unable to overcome the Moench presumption because they presented no evidence that it was unreasonable for the plan fiduciaries to believe that CSC would overcome its financial problems. The Ninth Circuit also determined that the CSC plan fiduciaries did not breach their ERISA duties by allegedly making misrepresentations to plan participants about the quality of CSC stock.

Beware the Cat's Paw

In Lindsey v. Walgreen Co., No. 10-1036 (7th Cir. August 11, 2010), the United States Court of Appeals for the Seventh Circuit rejected a former employee’s “cat’s paw” argument. The plaintiff, Katie Lindsey, was 53 years old when she sued her former employer under the Age Discrimination in Employment Act ("ADEA"). A few years after she began her employment with the drug store chain Walgreens, Ms. Lindsey was promoted from staff pharmacist to pharmacy manager by her district pharmacy supervisor. Before long, Walgreens received complaints from Ms. Lindsey’s co-workers, and the same district pharmacy supervisor determined that Ms. Lindsey was not fit to continue in a managerial position (in part because she allegedly was not following pharmacy procedures). The district pharmacy supervisor demoted Ms. Lindsey back to a staff pharmacist position, transferred her to another store, and warned her that she would be fired the next time she failed to follow pharmacy procedures. The district pharmacy supervisor later determined that Ms. Lindsey had once again violated company policy and ultimately terminated her employment.

After filing suit in federal court, Ms. Lindsey alleged several theories of discrimination, including the "cat’s paw" theory, a phrase used in the employment law world that refers to an allegedly unbiased decision-maker who is used as a proxy for an allegedly biased manager/employee. Ms. Lindsey argued that the district pharmacy supervisor was a cat’s paw for a co-worker, who she claimed disliked her because of her age. Ms. Lindsey insisted that the district pharmacy manager decided to fire her after “blindly relying” on biased information from the co-worker. Ms. Lindsey alleged that her new co-workers (after she had been transferred) called her “lazy” and “slow” and questioned why Walgreens exiled “old,” “demoted” pharmacists to their store. She also alleged that the biased co-worker made disparaging remarks about her age and abilities. The court rejected Ms. Lindsey’s argument because it determined that Walgreens employer had adequately demonstrated that its employment decision was based on an independent evaluation/review and was not tainted by any alleged bias.

DOL Issues Safe Harbor for Internal Claims and Appeals Processes

The departments of Labor, Treasury, and Health and Human Services issued Technical Release 2010-02 on September 20, 2010. The Release provides an enforcement grace period until July 1, 2011, to give group health care plans and insurance issuers more time to comply with regulations on new internal claims and appeals procedures. On July 22, 2010, the departments released regulations standardizing and strengthening the process by which consumers can appeal medical coverage or claims denials by their health insurance. The rules apply to nongrandfathered health plans and are effective for plan years beginning on or after Sept. 23. The release said that the Labor Department and Internal Revenue Service will not take any enforcement action against a group health plan, and HHS will not take any enforcement action, during the grace period, against a self-funded nonfederal governmental health plan, that is working in good faith to implement such additional standards but does not yet have them in place. The agencies also released a series of FAQs addressing a range of other topics under the health reform law, including compliance with the rules, grandfathered plans, internal and external reviews processes, and dependent care coverage.

D.C. Federal Court Clarifies EEO Charge-Filing Timelines

In Lee v. District of Columbia, Civil Action No. 09-CV-1832, Judge Ricardo M. Urbina of the U.S. District Court for the District of Columbia denied the District of Columbia’s motion to dismiss a complaint brought under the American with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., arguing that the plaintiff did not timely file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) within 180 days as required by 42 U.S.C. § 2000e-5(e).

The plaintiff, a person with a disability based on his diabetes, alleged in the lawsuit that the District of Columbia’s Department of Corrections discriminated against him by failing to accommodate his condition by offering him meal breaks to stay alert due to the effects of low blood sugar and then terminating him for failing to stay alert during his work shift. The plaintiff acknowledged in his lawsuit that he did not file a charge of discrimination with the EEOC within 180 days but maintained that his charge was timely filed because it was filed in 205 days, and, given that the District of Columbia Office of Human Rights has a worksharing agreement with the EEOC, the filing deadline is extended to 300 days.

Judge Urbina sided with the plaintiff. He reaffirmed that an individual asserting a claim under the ADA must generally file a charge of discrimination with the EEOC within 180 days; but, “when a worksharing agreement exists between the EEOC and a state or local Fair Employment Practices (“FEP”) agency, the filing window widens to 300 days.” Judge Urbina then determined that the plaintiff’s discrimination charge was timely because “[t]he DCOHR has entered into such an agreement with the EEOC, and therefore the applicable time limitation for filing a charge of discrimination in the District of Columbia is 300 days.”

According to the plaintiff's lawyer, James C. Bailey of Bailey & Ehrenberg PLLC in Washington, D.C., the decision is important because it provides clarification concerning the charge-filing time lines for prospective plaintiffs.

Bang Bang You're Fired

A former employee of Iron Mountain Information Management Inc. has challenged the company to a legal duel in Gwinnett County Superior Court in Georgia over its employees' rights to possess guns while on the clock at work. Jamie Lunsford had worked for the document-shredding company for six years when she was fired for carrying a handgun in her car. Lunsford had driven with a co-worker to the Federal Reserve Bank in Atlanta on business for Iron Mountain. When she entered the Federal Reserve Bank's parking garage, she was asked by security whether she was carrying any firearms. She responded in the affirmative. She was then instructed to leave and park elsewhere. When Lunsford returned to work, she was suspended and then fired. According to Iron Eagle, Lunsford violated the company's gun policy when she drove herself and another employee to a customer's facility while in possession of a gun. Iron Eagle noted that Georgia law allows workers to have guns in company parking lots. The law, however, according to Iron Eagle, does not permit an employee to carry a firearm while conducting company business. Given that, and general employee safety issues, Iron Eagle felt compelled to terminate Lunsford. Employers should take note of this lawsuit. and consider whether their workplace firearms policies are in compliance with relevant state laws. It should be noted that such laws vary from state to state.

IRS, DOL and HHS Issue New Claims Rules for Group Health Plans

The Internal Revenue Service, the Department of Labor's Employee Benefits Security Administration, and the Department of Health and Human Services issued today interim and final rules for group health plans and health insurance issuers relating to internal claims and appeals and external review processes under the Patient and Affordable Care Act. The text of the rules can be found at www.dol.gov.