Attorney Drafts Endorsement Agreement on Behalf of Client and NFL Player

lawrence-hunt-logoMatt Cross, an attorney in our Traverse City office, recently drafted an endorsement agreement on behalf of his client, Lawrence Hunt Fashion, Inc.  Lawrence Hunt named New York Giants wide receiver Sterling Shepard as an official brand ambassador of the Detroit-based company that is known for building dress shirts with performance fabric technology making the dress shirts breathable and sweat-wicking. Shepard joins Detroit Tigers catcher James McCann as a Lawrence Hunt brand ambassador.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on business law, insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.

Court of Appeals Reaffirms Public Bodies are Under No Obligation to Monitor FOIA Requests Once Denied

foia-photoIn Whittaker v Oakland County Sherriff, unpublished decision of the Court of Appeals dated Nov. 22, 2016 (Docket No. 329545), plaintiff filed suit alleging violation of the Freedom of Information Act (FOIA). On July 27, 2014, officers suspected plaintiff was driving under the influence and pulled him over. On August 20, 2014, prior to charges being filed, plaintiff submitted a FOIA request to defendant seeking all reports, audiotapes, videotapes, laboratory information and other information relating to the incident. On the same day, the District Court issued a warrant and complaint against plaintiff. On August 22, 2014, defendant denied the request because the information sought was part of a pending investigation or court action, citing MCL 15.243(1)(b)(i).

In February 2015, plaintiff filed suit arguing that defendant violated FOIA when it denied his initial request. While the suit was pending, defendant informed plaintiff that the exemption cited in the initial denial had expired and defendant would comply with a resubmitted request.

By July 2015, defendant had provided all of the documentation sought and moved for summary disposition. Plaintiff insisted he was still entitled to attorney fees, costs and punitive damages because defendant wrongfully denied his initial request, making it necessary for him to file suit. Defendant responded that because it would have complied with a resubmitted request after the expiration of the exemption cited, the suit was not necessary to gain disclosure of the documents. The trial court granted summary disposition and the Michigan Court of Appeals affirmed.

In affirming the trial court’s grant of summary disposition, the Court of Appeals noted that plaintiff had reason to know the circumstances surrounding the initial denial had changed and the exemption initially cited no longer applied. As the Michigan Supreme Court has held, “FOIA does not prevent a party that unsuccessfully requested a public record from submitting another FOIA request for that public record if it believes that, because of changed circumstances, the record can no longer be withheld from disclosure.” State News v Mich State Univ, 481 Mich 692, 704-705; 753 NW2d 20 (2008). The Supreme Court has also held that “[t]here is no language in…FOIA that requires a public body to continue to monitor FOIA requests once they have been denied.” Id. at 704.

The Court of Appeals concluded that defendant was under no duty to continue monitoring plaintiff’s request and the onus was on plaintiff to resubmit his FOIA request once the circumstances had changed rendering the previously cited exemption inapplicable. Because plaintiff had another option to obtain disclosure, filing suit was not necessary to obtain the documents and thus plaintiff was not entitled to attorney fees, costs and punitive damages.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.

The Sixth Circuit Court of Appeals Expands an Employer’s Defenses to a Claim of Discrimination

Gerry Davis 2016In the case of Richardson v Wal-Mart Stores, Inc., the United States Court of Appeals for the Sixth Circuit, which includes the state of Michigan, interpreted, clarified and enlarged the defendant employer’s defense to a claim of age discrimination under the Elliott-Larsen Civil Rights Act.

The Court of Appeals confirmed that the 62-year old plaintiff, Richardson, failed to offer either direct or indirect evidence that her job was terminated based on her age.  It has been her allegation that Walmart illegally terminated her job because of her age.  A former supervisor acknowledged her age, but the court recognized that the plaintiff could not establish her claim, because that supervisor was transferred to another store four months before Richardson was terminated, and that supervisor was not involved in the discharge decision.  Richardson further claimed the store manager who terminated her “exhibited a pervasive pattern of discriminatory conduct toward her,” and that this constituted direct evidence of discrimination.  While the store manager’s actions may have shown he probably did not like Richardson, none of the facts demonstrate discrimination based on age.  The Court of Appeals also recognized that Richardson failed to establish her claim based on circumstantial  evidence of discrimination because, even though she offered prima facie evidence enough to go to a jury for a fact adjudication, the defendant Walmart offered a legitimate non-discriminatory reason for her termination, alleging she engaged in unsafe work practices in violation of Walmart’s safety policies and her conduct brought her to the fourth and final steps of the company’s progressive disciplinary policy.

In accordance with law, the plaintiff argued that Walmart’s stated reasons were pretextual, that is, offered as a pretext for their real reason, which was discrimination.

Under case law and the theory of judicial precedence, where a court must follow the decisions of earlier courts regarding the same issue, a plaintiff must state enough facts to create legitimate questions of fact that support a basis of discrimination (prima facie evidence), and then it is for the trial court or a jury to decide if those assertions made by plaintiff are true.  When the plaintiff has offered evidence of discrimination, the burden of proof then shifts to the defendant to state a legitimate non-discriminatory reason justifying their actions.  If the defendant does that, the burden then shifts one more time, back to the plaintiff to prove that the defendant’s stated non-discriminatory reasons were a pretext (false reason) for the real reason, which was discrimination.

In the Richardson case, the court noted that other employees, even those younger than Richardson were disciplined and fired for similar reasons.  The Court of Appeals further stated that, even if the plaintiff could successfully dispute the disciplinary actions, “Walmart still would be entitled to summary judgment under the honest-belief rule, which prohibits a finding of pretext “if the employer can establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.”  Therefore, Walmart did not have to be correct in its judgment, as long as it honestly believed the facts upon which it relied for termination were true, or the facts existed as they honestly believed them to be.

The honest-belief rule also provides that an employer is entitled to summary judgment on pretext, even if conclusion is later shown to be “mistaken, foolish, trivial or baseless.”

This is a published case, meaning it is intended to constitute legal precedent for future cases decided under similar fact scenarios.

Gerald C. Davis is a partner in our Livonia office where he concentrates his practice on corporate and business law, leveraged buy-outs, company reorganization and refinancing, analyzing investments for joint ventures, intellectual property, and drafting loan agreements. He may be reached at (734) 261-2400 or gdavis@cmda-law.com.

Physical Disabilities in a Virtual World

chris-mcintire-photoBusinesses and public entities who routinely utilize their website to conduct business should be aware that there has been a steady increase in the number of lawsuits filed by disabled customers who cannot access websites.  The complaints have ranged from websites that could not be navigated without a mouse, websites disabling or otherwise making it difficult for accessibility software on the site visitor’s own computer to make full use of the site, and websites that do not include options to assist a visitor who is disabled.

In 2010, Hilton Worldwide was the subject of a Department of Justice (DOJ) suit for multiple violations of the Americans with Disabilities Act (ADA).  One violation involved the reservation website, which did not allow visitors to book ADA accessible rooms online.  Hilton explained that their website design software limited the number of room options in their dropdown menu; therefore they did not include the ADA accessible options in the menu.  Ultimately, Hilton was forced to accept a wide ranging consent decree from the DOJ that included, for the first time, specific instructions regarding website accessibility.  As part of the DOJ consent decree, Hilton was ordered to comply with the Web Content Accessibility Guidelines (WCAG), which included making all options available for visitors who wanted to book a room.

In addition to Hilton Worldwide, AOL, Charles Schwab, Netflix, Target, eBay, Ticketmaster and Travelocity have all either been sued or worked with advocacy groups to avoid litigation.  In the Target class action suit, Target paid $6,000,000 and installed online screen reading software on their website.  This is the first time a federal court decreed that an online store must provide accessible website service to disabled persons (National Federation of the Blind v. Target Corporation, 452 F.Supp.2d 946. N.D. Cal. 2006).

Public entities also need to make sure their websites are not in violation of the ADA. Can a disabled visitor do everything online that any other visitor can do?  If you stream or post video/audio of public meetings is there an option to get close captioning?  Is there a way for a disabled visitor to get help if they are having problems, either in real time or within 24 hours?

The Department of Justice is working on cyber ADA guidance, which they hope to roll out in 2018.  Until then, businesses and public entities who routinely utilize their website to conduct business should follow the steps below to avoid a potential lawsuits filed by a disabled customer who cannot access their websites.

1.)  Make sure your IT department is in compliance with the Web Content Accessibility Guidelines, which can be located online.

2.)  Provide website visitors with options.  Can visitors navigate the website with just a keyboard?  Can forms be filled out without a mouse?  Do you use “Alt-text” to describe photos, allowing text-to-voice software to describe photos they cannot see, and making sure any downloadable PDF files can be accessed by the visitor using assistive technology?  Can visitors increase text size, either using a feature on their own browser or by clicking on a page link to enable a larger font?

3.)  Keep it simple.  Website developers may want to create a cutting-edge site, however all those bells and whistles can disrupt a visitor’s accessibility, especially if the visitor has assistive technology on their computer.

We may never get it perfect.  We just have to strive to “get it right.”  There will always be new technology, and as clients adapt to new technology, attorneys at CMDA are available to provide guidance to ensure businesses and public entities who routinely utilize their website to conduct business avoid lawsuits filed by disabled customers who cannot access websites.

Christopher A. McIntire, an attorney in our Riverside, California office focuses his practice on public entity, schools, employment, ADA compliance, mass tort and premises liability defense. He may be reached at (951) 276-4405 or cmcintire@cmda-law.com.

Municipal Immunity under the Family and Medical Leave Act

FMLAThe Family and Medical Leave Act (FMLA) was enacted, in part, “to balance the demands of the workplace with the needs of families…in a manner that accommodates the legitimate interests of employers…” 29 USC 2601(b). The Act entitles eligible employees to take leave:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. 29 USC 2612(a)(1).

Sections (A)-(C) are generally referred to as “family-care provisions” and section (D) is referred to as a “self-care provision.” The FMLA applies to both private employers and municipalities. 29 USC 2611(4)(A)(iii). However, the Act’s applicability to municipalities is limited.

The Eleventh Amendment of the United States Constitution provides sovereign immunity to the States and any political subdivisions thereof from suits for damages, unless the State chooses to waive said immunity. U.S. Const. Amend. XI. Additionally, Congress may abrogate the States’ immunity from suit pursuant to its powers under § 5 of the Fourteenth Amendment. See e.g. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Congress’ intention to abrogate the States’ sovereign immunity must be “unmistakably clear in the language of the statute.” Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 726, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003)

In Hibbs, the Supreme Court concluded that Congress clearly intended to abrogate the States’ sovereign immunity in enacting the family-care provisions of the FMLA. Specifically, the Court noted that the family-care provisions of the FMLA were aimed at providing a remedy for a history of gender-based discrimination in the administration of leave benefits. However, in Coleman v. Counter of Appeals of Maryland, 132 S.Ct. 1327, 182 L.Ed.2d 866 (2012), the Court held that Congress did not validly abrogate state sovereign immunity in enacting the FMLA’s self-care provision.

As a result, the defense of sovereign immunity is alive and well for damage claims against municipal employers for alleged violations of FMLA’s self-care provision. Id. at 1328. However, an employee may recover for prospective relief (i.e., reinstatements) where the employee establishes an ongoing violation of federal law. See Diaz v. Michigan Dept. of Corrections, 703 F.3d 956, 961-62 (6th Cir. 2013).

Matt Cross is an attorney in our Traverse City office where he focuses his practice on insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.