The last workers’ compensation case in this batch is a 2-1 split decision, Shay v. Rowan Salisbury Schools.  The plaintiff, a 15-year teacher, had always used the elevator to get to her second floor classroom.  The elevator broke, and for a month, she had to use the stairs to get to the classroom.  One day, while climbing the stairs, her knee “popped,” and she eventually had to have surgery for a meniscus tear.  Plaintiff did not stumble, fall, trip, slip, or twist her knee causing her injury.  The  Commission found this to be a compensable accident, over Commissioner Ballance’s dissent.  The Court reversed, finding the injury was not from an “accident.”  Continue for more on case:

Under the Workers’ Compensation Act, a plaintiff is entitled to compensation for an injury “only if (1) it is caused by an ‘accident,’ and (2) the accident arises out of and in the course of employment.” See N.C. Gen. Stat. § 97-2(6).  An accident is “an unlooked for and untoward event which is not expected or designed by the person who suffers the injury;’ the elements of an ‘accident’ are the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences.”  The majority held that because the plaintiff had been using the stairs for a month, it had become part of her normal routine, so injuring herself while simply climbing the stairs was not an accident.  Judge Wynn (still waiting to get on the Fourth Circuit) dissented, arguing that because the plaintiff was not “regularly expected” to use the stairs — everyone expected the elevator would be fixed quickly — stair-climbing was not part of her usual routine, was an unusual activity, and thus her injury was an “accident.”

the person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.

Here, the Court credited the plaintiff’s testimony and documentary evidence that he was paid by the hour, was instructed on how to work, and did not hire his own assistants.  Thus he was found to be an employee and the Court upheld his award of benefits.

In the second case, Price v. Piggy Palace, the plaintiff, a 20-year-old cook, was injured when a co-worker slipped and fell, spilling approximately three gallons of hot grease onto the plaintiff.  As a result, the plaintiff suffered severe burns to his head, left arm, and legs.  The Full Commission had ordered that the plaintiff receive the recommended pulse dye laser treatment to aid his recovery, and awarded plaintiff travel expenses for his parents’ everyday travel to the hospital.  During his hospital stay, the plaintiff’s parents had gone to the hospital every day and his mother assisted in the treatment of his burns, particularly with washing and dressing them.  In affirming the award of travel expenses, the Court concluded that the plaintiff’s mother’s medical assistance and psychological support were reasonably necessary to provide relief for his condition, which is sufficient to award travel expenses as part of medical expenses under N.C. Gen. Stat. 97-25.

For those seeking benefits, see this note from the North Carolina Employment Security Commission: “On July 22, 2010, the extension of the Federal Emergency Unemployment Compensation (EUC08) program was signed into law. The new law extends the filing deadline, but it does not provide for additional EUC08 tiers. The ESC is working with the Department of Labor to implement this change as quickly as possible. If you are currently filing for benefits please continue to do so. If you are not currently filing for benefits our agency will notify you on how to reinstate your claim.”

The union challenged Corbett’s termination and the case was initially decided by an experienced labor arbitrator.  Corbett, a 34-year employee, did nothing wrong in getting fired, but was terminated without just cause because of Bridgestone’s unilateral decision.  This is commonly known as a persona non grata situation.  The arbitrator found that this firing violated the union’s contract with UNICCO, and award Corbett 68 weeks of pay as damages because she could not order Bridgestone to return him to work.  UNICCO challenged the arbitrator’s decision in federal court.

In his July 16, 2010 opinion, Judge Boyle affirmed the arbitrator’s award and granted the union’s motion to enforce it.  Judge Boyle reasoned: 

The CBA does not specifically provide for the persona non grata situation in the instant case. Rather, the CBA provides that employees may be terminated for just cause or laid off subject to seniority. Plaintiff admits that Corbett was not fired for cause, and the arbitrator determined that Corbett was not laid off because Corbett’s work was available and reinstatement based on seniority was not an option. Therefore, the arbitrator properly concluded that Corbett was terminated in violation of the CBA. The arbitrator’s recognition that Plaintiff acted in good faith and made every effort to find work for Corbett does not cure this breach. … Here, the arbitrator’s award is more properly viewed as damages for breach of contract rather than severance pay. And the CBA does not limit the remedy that the arbitrator may award for a breach of contract. As such, the arbitrator properly determined an award that drew its essence from the CBA. Therefore, Defendants’ Motion to Enforce is GRANTED, and Plaintiff’s Motion to Vacate is DENIED.

The second case, Shupe v. City of Charlotte, concerned a police officer who injured her knee during her employment.  Her knee did not recover, and it was eventually determined that she arthroscopic surgery.  Charlotte opposed the surgery, which required the plaintiff to get an order from the Industrial Commission ordering the surgery.  Unfortunately, by the time this order was obtained, plaintiff was diagnosed with pancreatic cancer.  Her oncologist concluded that she could not have knee surgery because it would interfere with her cancer treatment.  Without the knee surgery, plaintiff could not return to work.  The Court affirmed the Industrial Commission’s award of temporary total disability benefits to plaintiff because her inability to work was caused by a combination of the compensable right knee injury, her subsequent inability to obtain corrective surgery because of her cancer, and the effects of her cancer treatments.  “Our courts have held that where a claimant is rendered totally unable to earn wages, partially as a result of a compensable injury and partially as a result of a non-work-related medical condition, the claimant is entitled to an award for total disability under G.S. § 97-29.”  The Court also would not let Charlotte escape liability by creating a temporary light-duty position for the plaintiff.  Because this position was a make-work temporary position, and not ordinarily available, it does not constitute suitable employment for the plaintiff to return to.

The main dispute in this case centers on whether Kessel’s conduct was sufficiently severe or pervasive to create a hostile work environment. As the Supreme Court has emphasized, “not all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning of Title VII.” Meritor, 477 U.S. at 67. To be actionable, sexual harassment must be objectively hostile or abusive, and the victim must subjectively perceive it as such.

If this case were merely about the crude or vulgar commentary which is an unfortunate feature of some workplaces, then Fairbrook would be correct to assert that the EEOC has no claim. Title VII, after all, is not “a general civility code.” Oncale, 523 U.S. at 81. “[W]hile no one condones boorishness, there is a line between what can justifiably be called sexual harassment and what is merely crude behavior.” Ziskie v. Mineta, 547 F.3d 220, 228 (4th Cir. 2008). Activities like simple teasing, offhand comments, and off-color jokes, while often regrettable, do not cross the line into actionable misconduct.

This case involves more than general crudity, however. Waechter’s allegations, if proven, show that Kessel targeted her with highly personalized comments designed to demean and humiliate her. In some cases, the remarks seemed intended to ridicule her in the eyes of patients and drug representatives. We have previously recognized that there is a difference between “generalized” statements that pollute the work environment and “personal gender-based remarks” that single out individuals for ridicule. See Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 197 (4th Cir. 2000). Common experience teaches that the latter have a greater impact on their listeners and thus are more severe forms of harassment.

The fact that this interaction took place at a medical clinic need not negate its severity, as Fairbrook contends. It is true that employees at Fairbrook had clinical duties which are not part of other professions, and it is likewise accurate that some employees, including Waechter, occasionally made off-color remarks. But a plaintiff’s claim is not defeated solely because she engages in some crude behavior.

Moreover, we decline to accept the argument that a medical setting, because it deals with human anatomy, is somehow liberated from professional norms. This argument is essentially an effort to exempt medical settings from the requirements of Title VII, notwithstanding the fact that Congress did not do so.

Second, Fairbook argues that Kessel’s conduct was not sufficiently severe because it did not cause Waechter to miss work due to stress or otherwise adversely affect her job performance. These factors, while relevant, are not decisive here. “Title VII comes into play before the harassing conduct leads to a nervous breakdown.” Harris, 510 U.S. at 22. The fact that a plaintiff continued to work under difficult conditions is to her credit, not the harasser’s. Moreover, the fact that Waechter continued to provide quality care to her patients in spite of Kessel’s conduct is not dispositive either.

For the reasons above, we conclude that the EEOC has produced evidence from which a reasonable jury could conclude that Kessel’s conduct was severe or pervasive enough to create a hostile work environment. This evidence, if proven at trial, indicates that Kessel, who was both Waechter’s supervisor and the sole owner of the establishment, crossed the line from general crudity into actionable harassment by subjecting Waechter to a series of sexually graphic and unmistakably personal remarks that made her work environment intensely uncomfortable.

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A)-(C); 29 C.F.R. § 825.200. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12).

Congress intended the definition of “son or daughter” to reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother. Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.”

In loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.” . . . “The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the parties.” Whether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors.

Examples of situations in which an in loco parentis relationship may be found include where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where an aunt assumes responsibility for raising a child after the death of the child’s parents. Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward), but no such relationship is required to find in loco parentis status. In contrast, an employee who cares for a child while the child’s parents are on vacation would not be considered to be in loco parentis to the child.

In the first, Granite Rock v. International Brotherhood of Teamsters, the Court ruled for the company, as ScotusBlog describes:

The parties had reached a collective bargaining agreement (CBA), but they disagreed about both when the CBA was formed and who should decide that question.  Today the Court, in an opinion by Justice Thomas, held that a court, rather than an arbitrator, should decide when the CBA was formed.  The Court explained that under the CBA, arbitration is required only when a dispute “arise[s] under” the agreement – which a dispute over when the CBA was formed does not.  The Court also held that the lower court properly declined to recognize a new federal common-law cause of action against the parent international union, which – according to the employer – tortiously interfered with the CBA.

In the second, Rent-a-Center v. Jackson, the Court sided with the employer, and held that the issue of unconscionability (a challenge to whether the arbitration agreement is valid in the first place), was to be decided by the arbitrator, as Workplace Prof Blog describes:

The Court held the issue was governed by the separability doctrine of Prima Paint: an arbitration agreement is assailable only if the arbitration agreement itself — not the overall agreement of which the arbitration is a part — is assailable on state-contract law grounds.  So far, so good for Jackson — until today, this separability doctrine has been applied only when an arbitration agreement was part of a broader (“container”) agreement that was not related to arbitration — e.g., an arbitration provision in a consulting-services contract or in a larger employment contract.  Jackson’s unconscionability argument was directed squarely at his arbitration agreement.

Today, however, the Court extended Prima Paint to hold that the arbitration agreement itself can be the container contract, and that unconscionability arguments must be directed toward specific provisions of the arbitration agreement.  Jackson’s unconscionability arguments, the Court held, were directed at the arbitration agreement generally, and therefore could not be grounds for voiding the arbitration agreement as a whole.

Read the whole post for its insightful analysis of how the Court erred, once again stretching the law to give a victory to employers over employees.

Continue for further analysis: 

Defendants claimed that they had notified plaintiff that the bonus plan was being discontinued before they had to pay him.  This issue is addressed by two provisions in the NCWHA.  N.C. Gen. Stat. § 95-25.13(3) requires employers to “[n]otify employees, in writing or through a posted notice maintained in a place accessible to its employees, at least 24 hours prior to any changes in promised wages.”  N.C. Gen. Stat. § 95-25.7 states in relevant part: “Wages based on bonuses, commissions or other forms of calculation shall be paid on the first regular payday after the amount becomes calculable when a separation occurs.  Such wages may not be forfeited unless the employee has been notified in accordance with G.S. 95‑25.13 of the employer’s policy or practice which results in forfeiture.  Employees not so notified are not subject to such loss or forfeiture.”

The Court held that the employer’s supposed notice was not sufficient under the NCWHA because it did not state that the bonus program was being ended, but only that plaintiff’s bonuses may be delayed.  As the regulations provide, ambiguities are construed against the employer.  The Court also followed the plain language of the NCWHA to reject defendants’ argument that the bonuses were not calculable before plaintiff was terminated; the NCWHA plainly provides that they still must be paid as soon as the amount can be calculated.  The Court also rejected defendants’ argument based on the statute of limitations, which is two years under the NCWHA.  The Court held that the statute of limitations did not begin running until the bonuses were payable — upon the property’s resale — and defendants failed to pay them.  It did not begin with defendants’ ambiguous notice about the bonuses.

Although the plaintiff won at trial on his NCWHA claims, the court did not award him liquidated damages or attorneys’ fees under the NCWHA.  The Court reviewed both decisions.  The NCWHA provides for a doubling of damages as “liquidated damages.”  “The employer bears the burden of avoiding liquidated damages by showing that it acted in good faith and with a reasonable belief that its actions were not in violation of the NCWHA.”  As an initial matter, the Court held that the issue of liquidated damages is for the court to decide, not the jury.  This follows the language of the act, and does not violate the constitutional right to a jury trial.  As to the decision on liquidated damages, the Court upheld the trial court, finding no abuse of discretion, because the underlying contract question was very disputable, and reasonable minds could have thought there was no contract for bonuses.  For the same reason, the Court upheld the trial court’s discretionary denial of attorneys’ fees.