Wisconsin has long been an "at-will" employment state. However, "wrongful discharge" is one of the numerous exceptions to the employment-at-will doctrine. In 1983, the Supreme Court of Wisconsin held that when an employee refuses to act in an unlawful manner, the employer would be violating public policy by terminating the employee for such behavior. "Public policy" is defined as that which embodies the community common sense and common conscience.
Recent Expansion of Wrongful Discharge Doctrine.
More recently, the Supreme Court of Wisconsin decided a wrongful discharge case involving two nursing home employees who were fired shortly after they reported mistreatment of patients. The employees were allowed to pursue a wrongful termination suit even though the employer had not requested the employees to violate the reporting obligation. The Court found that the employees had complained in response to a more significant legal command, one imposed by the legislature to further promote strong public policy of protecting nursing home residents.
In Strozinsky v. Brown Deer School District, the Supreme Court of Wisconsin framed two issues. First, whether fundamental and well defined public policies can reside in federal tax laws. Second, whether the constructive discharge doctrine applies to a common-law claim for wrongful discharge. Cathy Strozinsky ("Strozinsky"), who was represented by Attorney Alan C. Olson, was the payroll clerk for the District. Its Superintendant verbally abused her after she made a social security tax withholding from his bonus pay. She explained that he appeared hostile, threatening, and verbally abusive. She became physically sick after the confrontation with the Superintendant. Thereafter, Strozinsky's work responsibilities diminished and management ceased communicating with her. Strozinsky contacted the IRS to confirm that the shortcomings in the tax withholdings did not comply with federal law and that she personally could be held liable for breaking tax laws. Strozinsky resigned approximately seven weeks after the employer's harassment began.
The Strozinsky court held that taken together, the cumulative effect of these circumstances present a factual question for the jury to determine whether Strozinsky's resignation was voluntary or whether it constituted a constructive discharge.
The Strozinsky court also held that substantial public policy interests can reside in certain federal statutory provisions. The Strozinsky court reasoned that, "[t]he effect on the employee of having to choose between keeping his [or her] job or following the law...is the same regardless of the origin of the law."
Application of the Constructive Discharge Doctrine
The doctrine of constructive discharge recognizes that in an attempt to avoid liability, an employer may refrain from expressly firing an employee, preferring instead to engage in conduct causing him or her to quit. Such employer-attempted "end runs" around wrongful discharge are prevented by application of the doctrine of constructive discharge. The doctrine operates "to discard form for substance, to reject sham for reality" and recognizes that resignations created by certain intolerable working conditions are, in fact, actual firings.
To raise the constructive discharge defense, the employee must establish conditions so intolerable that he or she felt compelled to resign. The question hinges on whether a reasonable person in the position of the plaintiff would feel forced to quit. Inferior work assignments, transfers to less favorable job duties, and substandard performance reviews alone generally do not create intolerable conditions. Rather, the situation must be unusually aggravating and surpass single, trivial, or isolated incidents of misconduct.
The Strozinsky holding recognizes that employers cannot escape liability by coercing a resignation instead of formally uttering the words "you're fired."
Pamela J. Key v. UNUM
Denial of LTD benefits "arbitrary and capricious"
In December 2003, my client, Ms. Key, was injured in a car accident. Ms. Key claimed that she was unable to work after December 9, 2004 and filed a claim for long-term disability benefits under a disability insurance policy issued by UNUM.
In the Attending Physician Statement Ms. Key submitted with her claim, her doctor diagnosed Ms. Key with neck and upper back pain and indicated that Ms. Key was unable to work as of December 8, 2004. He also indicated that Ms. Key was restricted from lifting, pushing, pulling and keyboarding on a computer and was limited from lifting, pushing or pulling over 10 pounds. Ms. Key supported her claim for disability with the results of her MRI, the results of an occupational assessment test, the opinions of her treating physicians and her own reports.
The Court found "problematic" UNUM's argument that the opinions of Ms. Key's doctors were "conclusory," and the opinions of the doctors it consulted were reasonable. To the contrary, Ms. Key's medical records "painstakingly documented" the many efforts she made over the course of a year to treat her pain: medication, physical therapy, chiropractic care, steroids and ergonomic modifications. None were successful and all the reviewing doctors agreed that surgery was not an option for her. Her pain was aggravated while using a keyboard because of the position in which she was required to hold her head. By the end of the workday, she had "severe posterior headaches."
In concluding that Ms. Key could perform her job, neither UNUM nor its doctors identified any problems with the reports of Ms. Key or her treating physicians or identified any other evidence that Ms. Key should provide to support her claim. Instead, they simply said that the symptoms Ms. Key reported were greater than what the objective evidence would suggest.
Ms. Key and her doctors explained that sitting in a chair and using a keyboard caused her "severe" pain by the end of the day. Although Dr. Davey wrote that Ms. Key could deal with her pain by "switch[ing]positions" and "stretch[ing] periodically," neither he nor UNUM explained why that would be an adequate accommodation. Even more problematic, this view ignored Ms. Key's year-long attempt to find ways to treat and accommodate her pain, including physical therapy, "an ergonomic evaluation" and "strategies to provide maximal support to Ms. Key in the workplace."
In rejecting Ms. Key's claim, UNUM simply disregarded all the unsuccessful efforts Ms. Key made to treat her pain and keep working. It is not reasonable to assume without explanation that simple stretching would be sufficient to permit Ms. Key to work when much more aggressive measures failed to provide her with relief.
The Court found other problems with UNUM's decision as well. First, UNUM ignored the vocational evaluation, in which Dr. Porter concluded that Ms. Key was unable to perform even sedentary work, despite a "good effort" she put forward during the evaluation.
Finally, the determination by UNUM that Ms. Key could work full time after December 8 but could not work full time from November 8 to December 8, even though the evidence to support both claims was exactly the same, "cannot be squared" said the Court. "This puzzling disparity is enough by itself to conclude that UNUM's decision was arbitrary and capricious" the Court held.
The Court agreed with Ms. Key that UNUM's decision terminating benefits was arbitrary and capricious because the administrator had relied on the opinion of a doctor who did not explain the basis for his opinion or why it differed from the opinions of the Ms. Key's treating physicians. UNUM's decision was arbitrary and capricious because it failed to provide a "reasoned explanation" that considered "the relevant factors that encompass the important aspects of the problem."
Paul Krolnik v. Prudential
Lower Court Ordered to Consider Our Evidence
The Seventh Circuit Court of Appeals recently found against Prudential and in favor of my client, “Paul” who enjoys disability insurance as a fringe benefit of his job. He stopped working in June 2002 because of a hernia and back pain. The hernia was repaired surgically, but Paul did not return to work. After a psychiatrist diagnosed Paul with dysthymia and major depression, Prudential started sending him long-term disability payments. But "long-term" means two years, the Plan's limit when inability to work is caused even in part by a mental illness (which the policy defines to include depression). At the end of January 2005 Prudential ended the disability benefits, citing the two-year cap. After exhausting his administrative remedies, we filed suit on Paul's behalf under the Employee Retirement Income Security Act (ERISA).
After filing suit, we had proposed to take discovery in order to generate evidence about Paul's medical and mental conditions, and the extent (if any) to which his mental condition affects his ability to work. Prudential opposed all discovery, contending that the suit should be resolved on the administrative record. The district court concluded that no discovery at all is appropriate and barred all discovery on medical questions. The Court of Appeals found that some of Paul's physicians had been asked to provide affidavits describing his spine condition and prognosis, but the district judge struck them from the record, writing: “The submission of materials outside of the administrative record contradicts the scope and intent of the Court's protective order. While that order was directed towards future discovery, [Paul] cannot circumvent the force of the protective order by surreptitiously filing information outside of the administrative record in support of his motion papers.”
Having barred us from offering any evidence, the judge then granted summary judgment to Prudential, relying on the two-year cap and the fact that the administrative record contains two medical evaluations implying that Paul is able to work. The judge did not mention the contrary evidence in the administrative record.
The Court of Appeals criticized the district court, holding that, "we cannot imagine any justification for refusing to admit evidence that one party has procured at its own expense, such as the medical affidavits that [Paul] tendered. Tellingly, the district judge did not cite authority for throwing out the affidavits, and Prudential's brief does not supply any."
This case makes clear the importance of submitting evidence of disability in the form of affidavits and to request the court to allow discovery for purposes of challenging the opinions of the insurance carrier's reviewing doctors. If the district court will not listen to reason, the Court of Appeals may come to the rescue, as it did in this case.
Phillips v. U.S. Bank, N.A.
Our client won her right to a jury trial for wages
Phillips worked for U.S. Bank from January of 1998, in various financial-planning positions, until she was fired. As a U.S. Bank employee, Phillips participated in a benefit plan. The Plan made employment a condition of eligibility to receive payment.
The Court reasoned that an at-will employee like Phillips can be fired for any reason as long as the reason does not implicate a status protected by law. “That does not mean, however, that an at-will employee may be deprived of benefits that accrued before he or she was let go if the firing was to prevent payment of those benefits. Although there is no Wisconsin decision on this precise issue, the law applicable to the principal/agent relationship is directly analogous and applies here” the Court found.
In response to U.S. Bank’s argument that in the at-will-employee context there is no “duty to terminate in good faith,” the court found that the requirement that parties act in “good faith” inheres in every contract and, therefore, an employer must comply in good faith with its “contractual obligations”.
Finally, U.S. Bank argued that the benefits under the Plan were a “commission” rather than a “bonus.” The court found the distinction to be “immaterial” and only an attempt by U.S. Bank to limit its liability. Irrespective of how the Plan benefits may be characterized- the Plan promised to pay employees money calculated on past performance unless those employees were no longer employed when the payments were due. The Plan payments could, therefore, be characterized with equal accuracy as a “bonus” for a job well done, or as a “commission” for work well fulfilled. “Here at least, this is a difference between twilight and dusk”, the court held.
In sum, U.S. Bank contracted to pay employees benefits under the Plan so long as the employees fulfilled the Plan's prerequisites and were employed when payment of those benefits were due. Phillips fulfilled the Plan requirements said the Court so U.S. Bank cannot avoid paying Phillips benefits that accrued under the Plan if it fired her in order to not pay her.
The case was remanded by the Court of Appeals to the circuit court for trial by jury. The Wisconsin Supreme Court granted certiorari on June 28, 2010. Oral argument will likely be heard by the end of the year.
Castell v. MetLife
Client won LTD benefits
A. MetLife Improperly Ignored Social Security Decision.
The Court held that the Social Security decisions would be persuasive evidence that Jayce was disabled as required by the Plan, because, the Social Security standards are more stringent in this instance. “Moreover, the Supreme Court has found questionable MetLife’s conduct in requiring a claimant to argue to the Social Security Administration that she could do no work, and then ignoring the agency’s finding in concluding that the claimant in fact could do sedentary work”, said the Court.
B. Proof Of Disability.
The Court found it “undisputed” that Jayce fell in the manner claimed, and that he suffered disc desiccation, broad-based disc bulge, and disc protrusion at L4-5. Five different physicians that either treated or examined Jayce opined that he had significant limitations on sitting and standing and “[c]hronic disabling lumbar pain of probably diskogenic etiology”. The Court said that it was, “at a loss to imagine how [Jayce] could perform his own occupation, which undisputedly consisted primarily of sitting in front of a computer, if he could not sit.” It was also found significant that none of the physicians expressed doubts as to the degree of pain reported by Jayce; there was no suggestion that he was malingering.
C. MetLife Relied On Mere Paper Review.
The only doctors who suggested that Jayce did not suffer disabling pain were the two doctors hired by MetLife, Drs. Smith and Turok. Neither Dr. Smith nor Dr. Turok ever met or examined Jayce; thus neither had any opportunity to assess his credibility. The Court concluded that under these circumstances, it was an abuse of discretion for
MetLife to reject Jayce’s subjective pain complaints and, based upon that rejection, to discount the medical opinions that credited those complaints. While a plan administrator is not required to subject the claimant to an in-person medical examination, in performing the abuse of discretion analysis the Court may consider the fact that the administrator relied upon a paper examination.
MetLife’s hired doctors focused on Jayce’s “refusal” of a lumbar epidural steroid injection and/or surgery. However, as noted by the Court, MetLife did not point to any evidence that agreeing to a steroid injection and/or surgery were the only reasonable medical decisions that Jayce could make.
D. MetLife Abused Its Discretion.
In considering the administrative record as a whole, including the consistency of Jayce’s pain complaints from the time of his fall onward, the MRI demonstrating a disc injury, the opinions of five different doctors who treated or examined Jayce, the absence of any evidence of malingering, the fact that Drs. Smith and Turok did not examine Jayce, and the fact that MetLife has an inherent conflict of interest because it both administers and funds the Plan, the Court concluded that, “MetLife abused its discretion in denying [Jayce’s] claim for benefits.”
MetLife’s abusive practices are in my opinion systemic and nationwide. Three recent court decisions provide for full remedies and attorney fees but, until punitive damages are allowed under ERISA claims like this, I expect MetLife to continue its abuse of the disabled with impunity.
Weitzenkamp v. Unum Life Insurance Co. of America
Win for disabled client
Unum Life Insurance Co. of America cannot rely on a disability benefit planâ€™s limitation on self-reported symptoms to terminate a plan participantâ€™s long-term disability benefits, the U.S. Court of Appeals for the Seventh Circuit ruled July 11 (Weitzenkamp v. Unum Life Insurance Co. of America, 7th Cir., No. 10-3898, 7/11/11).
The three-judge appellate panel found that because the summary plan description did not include the limitation on self-reported symptoms, the SPD did not meet the Employee Retirement Income Security Actâ€™s disclosure requirements and thus Unum was estopped from relying on the plan limitation as a basis for discontinuing Susie Weitzenkampâ€™s benefits.
SPD Omits Self-Reported Symptoms Limitation.
Through an employer-sponsored plan administered by Unum, Weitzenkamp received long-term disability benefits for fibromyalgia, chronic pain, anxiety, and depression. Unum terminated Weitzenkampâ€™s benefits after 24 months under a plan provision that limited benefits to 24 months for disabilities due to sickness or injury that were primarily based on self-reported symptoms, and disabilities due to mental illness, alcoholism, or drug abuse. While the plan included these limitations, the SPD did not include the limitation on self-reported symptoms but did include the mental illness and substance abuse limitations in three different places.
After unsuccessfully challenging her benefit termination with Unum, Weitzenkamp filed a lawsuit challenging the application of the self-reported symptoms limitation.
SPD Violates ERISA.
The Seventh Circuit found that Unum could not rely on the self-reported symptoms limitation, reasoning that, because the SPD did not include that limitation, it failed to reasonably apprise Weitzenkamp of her rights under the plan and therefore did not meet ERISA Section 102(b)â€™s requirements.
Under Section 102(b), an SPD must include a planâ€™s requirements on eligibility for participation and benefits, and circumstances that may result in disqualification, ineligibility, denial, or loss of benefits. If an SPD does not satisfy these standards, a court may estop a plan administrator from denying coverage for terms not included in the SPD but found in the underlying plan, the appeals court said.
The court said that while the self-reported symptoms clause had been omitted from the SPD, the same was not true for the mental illness and substance abuse limitations. Furthermore, the self-reported symptoms limitation was not an â€œidiosyncratic contingencyâ€ that only concerned a few people, but was a broad exception that should have been included in the SPD, the court said.
As a remedy, the court ordered the reinstatement of benefits and payment of all back benefits, plus interest and attorney's fees.
Tracy L. Wink v. Miller Compressing Company
Employment and labor
Jury Verdict in Favor of Employee/Client
Tracy L. Wink filed suit against her former employer, Miller Compressing
Company, alleging violations of the Family and Medical Leave Act (“FMLA”), nonpayment
of wages under Wis. Stat. § 109.03, and breach of contract. The jury returned a verdict in Wink’s favor on her FMLA retaliation claim, her wage claim, and her breach of contract claim.
Wink testified that she notified her direct supervisor, Chavez, that her son was removed from daycare due to his autism. Wink asked Chavez if she could “tak[e]
work home with [her] two days a week so [that she] could care for [her son] instead of
trying to find a special facility” and Chavez told her that he “would have to talk
to upper management and find out if that was going to be doable.” Wink filled out her FMLA paperwork with Peggy Malmstadt in the human resources department.
The jury credited Wink’s testimony that she requested FMLA
leave on an intermittent basis two days per week and discussed the request with both
Chavez and Malmstadt. Wink’s testimony was corroborated by Chavez, who acknowledged
that he was tracking the time Wink worked from home, which included FMLA hours. On
this record, the jury found that Wink engaged in a statutorily protected activity—requesting and using FMLA leave for at least part of the
time—under the FMLA.
Wink testified that she was told by Sarah Barbian from the human resources department that “the company could no longer accommodate [her] special needs and that [she] needed to start to be in the office every day Monday through Friday,” starting the following Monday morning. Wink immediately started crying and was very upset because she “knew that it was going to be nearly impossible for [her] to find day care over the weekend by Monday”. Wink told Barbian that her son could not attend daycare because of his autism. Wink understood that if she could not make daycare arrangements for her son over the weekend, that she “didn’t have a job to come back to.” Chavez testified that Miller gave Wink an “ultimatum” regarding changing her schedule. Even though the witnesses agreed that the word “fired” was not spoken by the defendant, the jury concluded that Wink had been effectively terminated.
The causal nexus element may be met through either a direct admission or through “a convincing mosaic of circumstantial evidence” such as suspicious timing, ambiguous statements from which a retaliatory intent can be drawn, evidence of similar employees being treated differently, or evidence that the employer offered a pretextual reason for the adverse action.
Chavez testified that upper management told him to cut two people from his
department and that Wink was not initially chosen for the lay-off. Had Wink been able to be in the office full-time, she would have been the best person in his group to keep. One of the
reasons Wink was considered for discharge was because she was unavailable to be in the
office five days per week. When asked whether Wink caused her separation from Miller, Barbian testified that she didn’t make the commitments that the company were asking her to.
Wink alleged that Miller violated Wis. Stat. §§ 109.03 and 109.11 for failing to pay her earned severance pay. Wink also alleged that Miller’s failure to pay her severance constituted a breach of her Agreement With Respect to Inventions, Confidentiality, Competition and Term of
Employment (the “Agreement”).
The Agreement provided that Miller would continue to compensate Wink for a period of three weeks after termination without a reason arising from Wink’s own action or inaction. Barbian testified that it was not Wink’s fault that she could not arrange daycare over the weekend. Given this evidence, the jury found that Wink was terminated without cause
under the Agreement. By failing to pay her the three weeks’ severance pay she was owed
under the Agreement, the evidence also established a violation of Wisconsin’s wage claim
statute. The court entered judgment in favor of Wink.