3-29-2011; The first in a series of articles by Arik D. Hetue, J.D. taking a look at some of the recent rulings of the Supreme Court of The United States which point toward a...

KC&A styles itself as a “one-stop shop” for employer defense needs. We have successfully defended IDHR suits in Illinois and Title VII suits in the Federal courts at very reasonable rates. In these discrimination settings, there are clearly defined paths for defendant employers to follow in order to limit their potential liability. Earlier this month, the Supreme Court of the United States decided a series of cases involving workers’ rights in the employment law setting. Over the next few weeks we will be looking at some of these decisions. This week we highlight Staub v. Proctor Hospital, U.S. No. 09-400, which significantly expanded Plaintiff’s rights in regard to the “cat’s paw” theory of liability.

 

Staub v. Proctor Hospital, U.S. No. 09-400, decided on March 1, 2011, dealt specifically with the “cat’s paw” theory of discrimination, which hinges liability on the assertion an unbiased decision maker is influenced by a co-worker with a discriminatory bias to make an adverse employment decision against an employee. As an example – if a male supervisor with a gender bias wrote up false reports with the intention to get a female worker terminated, and an independent regional manager relied on those reports to make the determination to terminate, without an independent investigation, the regional manager would effective be the “cat’s paw” of the biased supervisor who actually made the decision to terminate. Prior to Staub, the solution was for the employer to perform a wholly independent investigation into the issues prior to making the determination to terminate. On March 1, 2011, the United States Supreme Court addressed this theory of liability in a military discrimination case and ruled an employer can be held liable if the bias of the manager was a “proximate cause” of the employment action, if the decision maker relied on those reports to make their decision.

 

In Staub Army reservist Vincent Staub alleged his employer violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) when he was fired from his civilian job as a hospital technician. Staub presented evidence his direct supervisors were openly hostile to his military obligations. Evidence of openly anti-military comments, evidence the supervisors asked co-workers to help “get rid” of Staub, evidence supervisors scheduled Staub extra shifts to “pay back” co-workers who had to cover his military training absences, and confirmation his supervisor gave him an allegedly sham disciplinary warning, followed by another allegedly sham violation of the warning. Staub was reported to Human Resources following this violation, and relying in part on the supervisor’s accusation, the VP of Human Resources fired him.

 

The jury rendered a verdict for Staub. The verdict was overturned by the Seventh Circuit, which ruled Staub had to prove his immediate supervisors had a “singular influence” on the unbiased decision maker in order to establish a cat’s paw claim. This is clearly delineating the pathway noted above which employers had previously used to safeguard themselves from such claims – that an independent investigation into the events leading to the termination decision would effectively insulate the employer from liability, unless the investigation was solely reliant on the biased reporting.

 

Justice Kagan took no part in the decision, however the remainder of the Court was unanimous in reversing the Seventh Circuit. The Court ruled “if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if the act is a proximate cause of the employment action, then the employer is liable under USERRA.” Proximate cause is a legal concept which is sometimes referred to as “legal cause”. There can be multiple proximate causes for an employment action; for generalization purposes, it can include everything leading up to the decision to terminate. Because Staub’s supervisors were found hostile to his military obligations in the manner listed above, and because their disciplinary action was a causal factor underlying the investigator’s decision to terminate Staub, the Court held a reasonable jury could find the bias was the proximate cause of the termination, and therefore rule in favor of Plaintiff.

 

In so ruling, the Court rejected the employer’s argument the decision maker’s independent investigation should insulate the employer from the supervisor’s prior instances of discrimination. The Court limited this defense by confirming an employer would be liable unless it could show an independent investigation resulted in the decision being made for reasons unrelated to the supervisor’s original biased actions. The more difficult pill to swallow was their holding a supervisor’s biased report can remain a causal factor, and therefore a proximate cause, if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

 

Practically speaking, Staub increases employer liability in all employment law settings where the “cat’s paw” theory can be used, including Title VII and the ADA. In fact, the Court specifically implied the ruling would apply in those settings due to the similarity of the requirement the bias be a “motivating factor” in each of those settings. That said, this expansion of rights will apply only in certain limited cases where complaining employees were able to demonstrate actual animus by the biased supervisor and intent by the biased supervisor to cause an adverse employment action. The facts of this case were egregious, and we would hope most employees will be unable to establish the kinds of facts Staub was able to evidence at hearing. Also of note, the Court did not eliminate the defense of independent investigation, however, they did leave unclear the circumstances which would allow independent investigation to insulate an employer from a Cat’s Paw claim. As is the case in these types of rulings, such details will be left to the lower courts to address.

 

In regard to how this affects your business practice, as always, we recommend you have a clearly defined reporting procedure in place which all employees are made aware of. We also recommend clear and accurate documentation of all workplace infractions, with witness statements being taken any time there is a need for them. As noted, the independent investigation is still a defense, but the more your investigator has to review, the more likely their decision will be based on something other than a biased report.

 

This article was researched and written by Arik D. Hetue, J.D. If you have thoughts and comments, please send a reply to ahetue@keefe-law.com, or post them later today on the blog at www.keefe-law.com/blog.

 

3-29-2011; Grin and “Bear” It—one reason Montana “bears” the U.S. lead in wildly high WC benefits

Man high on dope mauled by Bear, gets work comp benefits. Read it and weep at http://www.huffingtonpost.com/2011/03/24/brock-hopkins-bear-maul-marijuana_n_840374.html

You have to love this quote from their court—is ‘mind-bogglingly’ a word?:

The Workers' Compensation Court ruled last June that claimant Hopkins was an employee and noted while his "use of marijuana to kick off a day of working around grizzly bears was ill-advised to say the least and mind-bogglingly stupid to say the most," there was no defense evidence presented regarding Hopkins' level of cannabis impairment.

The WCC found Grizzly Bears are "equal opportunity maulers" without regard to marijuana consumption. Analogous to the recent Illinois ruling in Metropolitan Water Reclamation District v. IWCC, we assume the Montana Court felt this was “bear risk” and therefore compensable.

3-29-2011; Will changes to the Medicare Secondary Payer Statute assist in resolving Medicare issues and finally give us a way to appeal what are sometimes incomprehensible MSA values?

On March 14, 2011, the Strengthening Medicare and Repaying Taxpayers Act of 2011 (SMART Act) (H.R. 1063) was introduced in the U.S. House of Representatives. The SMART Act proposes major amendments to the Medicare Secondary Payer Statute (MSP). Track progress here: http://www.govtrack.us/congress/bill.xpd?bill=h112-1063       

The SMART Act’s reform proposals target multiple areas of MSP compliance including:

       Obtaining CMS’ reimbursable conditional payment amount—this will help the parties confirm amounts which will be owed for past medical. Under CMS’ current process, the parties generally cannot obtain the exact reimbursable conditional payment amount until after the claim settles.

       Requiring CMS to respond  to requests  for conditional payment information within set timelines—finally you won’t be stuck in the purgatory of never knowing when you will receive information you need to resolve past payments, hopefully within 120 days or less;

       MSP appeal rights—when you receive the $100k MSA ruling for a person who hasn’t had a surgical procedure, you may have somewhere to turn as review through an administrative law judge and administrative review board, and access to judicial review in the district court of the United States is proposed in a manner which would be similar to the appeals procedure under regulations for hearing procedures respecting notices of determinations of nonconformance of group health plans.

       MSP threshold exemptions—the SMART Act would require that CMS establish an annual MSP threshold exemption amount below which MSP compliance would not be necessary. The SMART Act’s proposal of a yearly MSP threshold exemption amount replaces the flat $5,000 monetary threshold exemption proposed last year.

       MSP statute of limitations—you would no longer have to worry about someone looking into a claim well after all parties have retired as the SMART Act would establish a Three (3) year Statute of Limitation for MSP Claims.

We will keep you advised of changes as they occur and as previously noted, Shawn R. Biery has completed course work and testing from two sources to obtain his Medicare Set-aside Consultant Certified (MSCC) credential.

 

Please feel free to contact Shawn R. Biery, J.D., M.S.S.C. at sbiery@keefe-law.com with any questions regarding Medicare Set-Aside issues.