In the second of our webinars on The Ruby Files: Managing the Challenging Employee, we continue to follow Ruby as her changing circumstances present her employers with a variety of legal complications. Still employed by a major hospital, Ruby has developed carpal tunnel syndrome and persistent migraines, which she claims interfere with her ability to work and requests ADA accommodations as well as FMLA time off. Her employer initiates the accommodation interactive process, but before this process can proceed, Ruby’s supervisors report performance problems and that Ruby is posting on Facebook about her alleged medical conditions. Ruby is terminated for poor performance, after which her attorney sends the hospital a demand letter. The company responds with a notice that her claims are subject to an arbitration agreement. Polsinelli’s Labor & Employment and Health Care attorneys will cover the legal hot buttons covered in this webinar, specifically: -ADA accommodations and FMLA time off requests -Requirements for documentation of alleged medical conditions -How to properly document performance issues -Progressive discipline policies -Termination of an employee for performance with a medical condition seeking an accommodation -Management of post-separation allegations

1. Polsinelli PC. In California, Polsinelli LLP
The Ruby Files: Managing the
Challenging Employee
The Terminator. You Won’t Be Back.
Eric E. Packel, Joan Killgore,
Robert Entin,
Scott Gilbert, Gillian Bidgood

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• Ruby – 39 years old
• Hired as Unit Supervisor at Hospital
• Supposed to Supervise RNs
• Filed previous D.O.L. Complaint re:
misclassification and hours.
Where We Left Off

3. Ruby’s Performance Problems
• Patient complaints re: nurse attentiveness,
rudeness.
• Ruby given Verbal Counseling to supervise and
train better.
• After Verbal Counseling, Doctors complain of
similar issues, lack of organization in unit.

5. H.R. Meeting to Discuss Warning
Chris: Ruby, have a seat. I’ve brought you in today because you are receiving a Written Warning.
Ruby: Shocker.
Chris: Ruby, this can’t be a surprise. You know there have been complaints. You know the Unit is
disorganized.
Ruby: Yeah, well, when I’m spending a lot of time inputting data in charts, it’s hard to supervise.
Chris: Ruby…
Ruby: Just call me Carpal Tunnel Woman. Seriously.
Chris: Ruby, do you have any questions about the Warning?
Ruby: You know what Chris? I’m not dealing with this anymore. Fine. Give me the warning. All you all are
doing is stressing me out and giving me migraines. And on top of those, I swear I have carpal tunnel from all
the data entry I’m having to do. That it?
Chris: No, wait. You said “carpal tunnel” twice. Are you claiming you have carpal tunnel?
Ruby: Do you even know anything about me?! Whatever.
Chris: Okay, well let me ask you this: Have you completed a Request for Accommodation form?

6. Ruby: No.
Chris: And you know what those are?
Ruby: I don’t know. I don’t know. This is very depressing.
Chris: Well I will get you a Request Form. If you really think you need an accommodation, then you can fill
one out.
Ruby: Yeah let me get right on that Chris. In between delivering meal trays, trying to supervise and trying not
go into severe depression, let me make my wrists worse by typing up a form.

7. What Did Ruby Really “Say”? How Did H.R.
Handle?
• Did She Trigger a duty? Buzz words she used.
• Obligation to engage in interactive process:
• The Employee’s request need not include the “magic words” “reasonable
accommodation.”
• But, the notice must make clear the employee wants assistance for her
disability.
• Once the Employer knows 1) of the disability and 2) the desire for
accommodation, Employer has burden to request additional information and
engage in interactive process.
• Employer cannot “in the face of a request for accommodation, simply sit back
passively, offer nothing, then in post-termination litigation, try to knock down
every specific accommodation as too burdensome.”
See e.g. Peter v. Lincoln Technical Institute, 255 F.Supp.2d 417 (E.D. Penn. 2002);
Broadwater v. Minnesota Dept. of Human Services, 22 F.Supp.3d 989 (D. Minn.
2014).

8. ADAAA and Impairments Ruby mentioned
• What “impairments” did she mention?
• ADAAA and the lighter burden on employees to prove “disability.”
• Carpal tunnel a disability?
– After the amendments, case law clear it can be if substantially limiting.
• Migraines a disability?
– Some case law has held chronic pain alone does not establish a
disability, because plaintiffs haven’t shown they substantially limited a
major life activity. See e.g. Rocco v. Gordon Food Serv., 998 F.Supp.2d
422 (W.D.Pa. 2014).
– But, impairments that last only for a short period of time “may be
covered if sufficiently severe.” Section 1630.2(j)(1)(ix): Effects of an
Impairment Lasting Fewer Than Six Months Can Be Substantially
Limiting.

13. MUST BE PROTECTED AND CONCERTED
• PROTECTED is
ANYTHING pertaining
to the terms and
conditions of
employment (e.g.,
wages, benefits, hours
of work,
overtime…even mean
supervisors)
• CONCERTED = MORE
THAN ONE.
• “If a tree falls in a
forest…”

14. “Likes, Retweets, & Forwards”
• Three D, LLC (Triple Play),
361 NLRB No. 31 (2014)
• A Facebook discussion was
protected, concerted
activity because it involved
current employees engaging
in discussions about the
wrongful withholding of
taxes.
• NLRB held that Facebook
discussion pertained to a
labor dispute, even though
the employer was non-
union.
• An employee who did
nothing more than “like”
the conversation was
protected under the Act.
This is akin to the silent
employee at the water
cooler, shaking her head.

15. Continued Performance Issues
• Ruby cusses at physician who asks for her
assistance.
• Additional complaints about organization.
• Brought in for Final Written Warning.

16. Final Written Warning Meeting Gone Awry
Chris: Ruby, I’ve brought you in for a final written warning. I’ve asked Michelle to sit in.
Michelle: Ruby, I want you to succeed but you’ve already had a written warning. Now we have another issue.
Did you tell Dr. Van Nostrom to “kiss your a**”?
Ruby: No.
Michelle: Ruby, I heard you!
Ruby: You spying on me Michelle?
Michelle: Ruby, my office is right by you.
Ruby: You couldn’t have heard me – you’re never there!
Chris: This isn’t about Michelle.
Ruby: Well it should be. She can’t raise a damn finger to help me, now she’s giving me this sh**?
Michelle: What did you just say?!

17. Chris: This meeting is over.
Ruby: Why? Because you don’t want to listen? Because I can’t explain?
Chris: No, because you’re not being respectful.
Ruby: This is a joke. You’re a clown. Michelle is a clown! What a circus this place is.
Chris: Ruby, can you be respectful?
Ruby: No, I can’t! No I really can’t, Clown.
Chris: Then Ruby, we are moving straight to termination. I’ll escort you to your station to
get your personal items.
Ruby: Oh, this isn’t over. Mark my words. CLOWN!

20. • Was termination appropriate?
– What was the basis?
– Need to satisfy Progressive Discipline?
– Fit within Progressive Discipline policy?
• Retaliation issues?
– Could Ruby state a claim?
– Previously complained of misclassification; good
faith request for accommodation?

21. Demand Letter from Lawyer

23. Enforceable Arbitration Agreement?
• Depends where you are.
• California:
– Acknowledgment of Handbook insufficient. Mitri v.
Arnel Management Co., 69 Cal. Rptr.3d 223 (Ct. App.
2007); Romo v. Y-3 Holdings, Inc., 105 Cal. Rptr. 208
(Ct. App. 2001)(Plaintiff did not sign separate
arbitration section.); Sparks v. Vista Del Mar Child &
Fam. Svcs., 145 Cal. Rptr.3d 318 (Ct. App.
2012)(Handbook “not intended to create a contract.”)
– But, separate Arbitration Agreement with Handbook
enforceable. Serafin v. Balco Properties, Ltd., 185
Cal.Rptr.3d 151 (Ct. App. 2015)

24. • Other states where Handbook Acknowledgment
enforceable:
Alabama - McNaughton v. United Healthcare Services, Inc.,
728 So.2d 592 (Al. 1998)(Acknowledgment stated Handbook
contained “guidelines except for the provisions of the
Arbitration policy.”)
New Jersey – Brooks v. Barkdale Senior Living Communities,
Inc., No. 12-CV-2821 (D.N.J. 2012)(Noting liberal construction
of arbitration agreements); see also Martindale v. Sandvik,
173 N.J. 76 (2002)(Arbitration clause in Application valid.)
Ohio – Corl v. Thomas & King, 2006WL1629740 (Ct.
App.)(Acknowledgment in Manager’s Handbook valid)
Texas – In re Dallas Peterbilt, 196 S.W.3d 161 (Tex.
2006)(Acknowledgment of Summary Plan Description of
Arbitration Agreement valid); In re Tenet Healthcare, Ltd., 84
S.W.3d 760 (Tex. Ct. App. 2002)(Acknowledgment that
company could change any policies “except the Mutual
Agreement to Arbitrate.”)

25. • Handbook Acknowledgment not Enforceable:
Missouri – Whitworth v. McBride & Son Homes, Inc.,
344 S.W.3d 730 (Mo.Ct.App. 2011)(Even though
Arbitration Agreement referenced in Employment
Contract and Handbook).
Michigan – Heurtebise v. Reliable Business
Computers, Inc., 452 Mich. 405 (1996)(Handbook
stated Policies “do not create any employment or
personal contract.”)

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Arbitration Tips and Thoughts
Do you want an A.A.?
Consider your jurisdiction in deciding.
If you want arbitration:
– Arbitration Agreement separate from Handbook? Or
– Acknowledgment?
If Acknowledgment, statement to the effect that “Notwithstanding that the
Handbook is a guide, the Arbitration Agreement is a Binding Agreement.”
Have this Acknowledged separately.
In the Actual Agreement/Policy:
– Neutral Arbitrator
– More than minimal discovery
– Written award
– Relief otherwise available
– Do not require Employee to pay unreasonable costs (similar to filing fee)

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Coming Up…
Ruby gets another job
Fails to mention termination
Some whispers and winks
Happy 40th to Ruby! Or not.
May 11, 2016!

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