Vol. 25, No. 1

IPER REPORT

Winter 2008

Illinois Public Employee Relations

REPORT Winter 2008 • Volume 25, Number 1

Family Responsibilities Discrimination: The Next Frontier in Public Sector Employment Law

By Consuela A. Pinto I. Introduction A school psychologist received outstanding performance reviews until she became a mother. She claimed that she was denied tenure by supervisors who allegedly told her such as it was "not possible for [her] to be a good mother and have this job,"1 and they "did not know how she could perform her job with little ones."2 The Second Circuit, reversing summary judgment for the employer, held that making stereotypical assumptions about a mother's commitment to her job is sex discrimination, even if the mother does not have evidence that similarly situated fathers were treated differently.3 A maintenance employee, who was the primary caregiver for his aging parents, requested and received intermittent FMLA leave.4. Shortly after beginning his leave, his supervisor implemented a new monthly performance standard based on the volume of work completed.5 The employee, who previously had excellent performance and received awards for his work, could not meet these performance standards.6 After 25 years of exemplary service, he was terminated.7 The employee brought a retaliation claim under the Family Medical Leave Act (FMLA) and prevailed by pointing to his history of

INSIDE Recent Developments . . . . . 09 Further References . . . . . . . 11

excellent performance, the timing of the performance standard, and the fact the standard was not applied uniformly to all employees.8 The evidence presented at trial indicated a clear bias against caregivers on the part of the supervisor and, by implication, the employer.9 As a result, the employee was awarded $11.65 million.10 These are just two examples of the current hot button issue in both public and private sector employment law Family Responsibilities Discrimination ("FRD"). FRD is discrimination against employees because of their family caregiving responsibilities.

FRD cases encompass a wide range of causes of action, including failure to hire, failure to promote, denial of benefits, denial of or interference with FMLA rights, retaliation for exercising FMLA rights, hostile work environment, retaliation, and wrongful termination. Because FRD claims trigger a broad spectrum of causes of action, they have been brought under almost all federal employment statutes including Title VII of the Civil Rights Act of 1964,11 the Pregnancy Discrimination Act ("PDA"),12 Section 1983 and the Equal Protection clause of the Constitution,13 Family and Medical Leave Act (FMLA),14 Americans with Disabilities Act (ADA),15 Equal Pay Act (EPA),16 and the Employee Retirement Income Security Act (ERISA).17 Employees have

1

also successfully used state antidiscrimination and leave laws and common law causes of action, such as wrongful discharge, intentional infliction of emotional distress, and breach of contract, to prove FRD cases.

The common thread linking all FRD cases, regardless of the cause of action, is the presence of unlawful stereotyping. FRD occurs when employees suffer an adverse action that affects the terms and conditions of their employment based on unexamined biases about how employees, both male and female, with family caregiving responsibilities will or should act. Such biases or stereotypes include assumptions that employees with caregiving responsibilities are unreliable, less committed, or less productive.

There are a number of reasons for the attention FRD has received recently, including: (1) a 400 percent increase in the number of FRD cases in the last ten years;18 (2) a 50 percent success rate for plaintiffs,19 (3) staggering damage and settlement awards in the millions,20 and (4) the U.S. Equal Employment Opportunity Commission's (EEOC) recent enforcement guidance on caregiver discrimination (another name for FRD).21 T he proliferation of these claims can be attributed to such reasons as: the availability of punitive damages under Title VII, heightened awareness among employees of their rights, and a

IPER REPORT greater desire for a work/family balance. However, the main contributing factor is FRD's link to family values. Conservative and liberal judges and jurors alike see FRD as a threat to family values.

This article begins with a discussion of the role of stereotyping evidence in FRD cases generally and sets the stage for a review of the EEOC's enforcement guidance on caregiver discrimination. The article presents key cases and common causes of action that have shaped the current status of FRD law in the public sector. The article concludes with recommendations for employees, public agencies, and their attorneys on how to successfully litigate or avoid FRD claims.

II. The Role of Stereotyping Evidence in FRD Cases FRD discrimination arises when an employer's actions are based not on the individual employee's performance or desires, but rather on stereotypes – assumptions of how employees with caregiving responsibilities will or should behave. For example, a supervisor may assume that a woman with children will be less committed to her job and, as a result, reassign her to a lower level position with less Consuela A. Pinto, an employment attorney, is Senior Counsel at the Center for WorkLife Law, a non-profit research and advocacy organization that seeks to eliminate employment discrimination against employees who have caregiving responsibilities. WLL, which is headquartered at the University of California Hastings College of the Law and directed by Joan C. Williams, works with employers, employees, attorneys, legislators, journalists and researchers. More information is available at www.worklife law.org.

Winter 2008 responsibility. Similarly, a man may be terminated because his employer assumed that he would frequently miss work because he cares for his dying mother. Generally, there is no evidence to support these assumptions.

Many FRD plaintiffs prevail because they have a "smoking gun" in the form of statements made by a manager or others relating to the characteristics of caregivers in the workplace. Examples of such smoking gun comments from actual cases include "your wife has to be in a coma or dead before you can be the primary caregiver,"22 and "working mothers cannot be both good workers and good mothers."23 Stereotyping evidence coupled with a lack of evidence to support the employers' assumptions or to justify their adverse actions generally spell disaster for employers.

The Supreme Court held gender stereotyping unlawful in 1989 in Price Waterhouse v. Hopkins.24 The Court held Price Waterhouse violated Title VII when Hopkins was denied a promotion because she was perceived negatively for lacking stereotypical feminine character traits. The Hopkins court stated, “In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender."25 In Nevada Department of Human Resources v. Hibbs,26 the Supreme Court addressed caregiving stereotypes in the context of the FMLA. Then Chief Justice Rehnquist wrote for the Court, "The faultline between work and family [is] precisely where sex-based generalization has been and remains strongest."27 He also noted: "Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men.

These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination. . . ."28

2

The decisions in Hopkins and Hibbs led to the landmark FRD decision, Back v. Hastings on Hudson Union Free School District.29 The Second Circuit in Back held that where plaintiffs have evidence of gender stereotyping, they need not put forth comparator evidence, i.e. proof that men with children were treated differently, to prevail in a Title VII/ Section 1983 case.30 In so doing, the court eliminated one of the most difficult hurdles for FRD plaintiffs to overcome. True comparators often do not exist.

The role of stereotyping evidence in FRD cases boils down to two points.

First, stereotyping of caregivers is gender stereotyping, which violates the Equal Protection clause and Title VII. Second, the presence of gender stereotyping evidence relieves plaintiffs of the burden of producing evidence that comparable men with children were treated more favorably.

As shown below, these two factors are the tipping point in many FRD cases.

III. Enforcement Guidance on Caregiver Discrimination In May 2007, the U.S. Equal Employment Opportunity Commission issued enforcement guidance about disparate treatment of caregivers in the workplace.31 The Guidance made clear that federal anti-discrimination laws protect caregivers from unlawful employment discrimination even though caregivers are not an expressly protected category. The EEOC defined "caregivers" broadly to include not only mothers but also fathers, grandparents who care for grandchildren and workers who provide care for elderly parents or disabled family members. Further, the EEOC picked up the theme of stereotyping evidence in FRD cases and explained that "[a]ll evidence [in a caregiver discrimination claim] should be examined in context. The presence or absence of any particular kind of

IPER REPORT evidence is not dispositive."32 Relying on the decision in Back, the EEOC reaffirmed the position that comparative evidence is not necessary to establish a violation because it has long been held that employment decisions based on stereotypes violate the federal antidiscrimination statutes.33 When an employer relies on unsupported sex-based assumptions or speculation instead of an employee's actual work performance, it has violated Title VII.34 The EEOC included a number of examples and scenarios throughout the 16 page guidance. All public and private human resource professionals and employment attorneys should be familiar with the details set forth in the guidance. EEOC and, presumably, individual agency's EEO investigators, will be taking a much closer look at charges of discrimination involving caregivers and applying the standards set forth in the guidance.

IV. Title VII and Section 1983 Claims State and municipal employees may bring FRD gender and pregnancy discrimination claims pursuant to Title VII of the Civil Rights Act as well as Section 1983.35 Section 1983 provides that no person acting "under color of state law" shall cause the deprivation of rights and privileges guaranteed by the U.S. Constitution to any of its citizens.36 Section 1983 can be used, among other things, to enforce rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Generally, the same methods of proof and legal standards apply to both Title VII and Section 1983 claims.

However, in addition to the elements of proof in a Title VII claim, plaintiffs bringing a Section 1983 claim must prove that the harm they suffered was the result of "state action."37 Such a showing requires that the alleged discriminators acted under the "color

Winter 2008 of state law."38 In other words, they abused the authority granted to them by virtue of their position with a state or municipal government.39 There are advantages to pursuing a Section 1983 claim rather than or in addition to a Title VII claim. For instance, Section 1983 does not require plaintiffs to exhaust administrative remedies.40 Section 1983 actions are governed by state statutes of limitation pertaining to personal injury claims, which are generally longer than the 180/300 day limitations period imposed by Title VII.41 Finally, unlike Title VII, damages awarded in a Section 1983 claim are not capped.42 Title VII is the exclusive remedy for federal employees. They may not take advantage of the protections of Section 1983 because federal employers do not "act under the color of state law."43 Further, federal employees must adhere to different timelines and procedures for filing a complaint under Title VII than state or municipal employees.44

A. Equal Protection The Back case discussed above is a landmark Section 1983 FRD decision.

Stating that "[i]ndividuals have a clear right, protected by the Fourteenth Amendment, to be free from discrimination on the basis of sex in public employment,"45 the Second Circuit ruled that making stereotypical assumptions about a mother's commitment to her job is sex discrimination, even if the mother does not have evidence that similarlysituated fathers were treated differently, and contravenes the Equal Protection Clause.46 The Back decision was a turning point in FRD law generally and in the role of stereotyping evidence specifically. Every employer and management attorney faced with an FRD action will have to grapple with the Back holding.

Knussman v. Maryland47 is another example of the Equal Protection

3

Clause at work in an FRD case. In Knussman, a Maryland state trooper was awarded more than $665,000 in damages and attorneys' fees and costs in a case brought under Section 1983, the Equal Protection clause, and the FMLA, to challenge the denial of his nurturing leave request as a "primary caregiver" after the birth of his child.48 Maryland law permitted a state employee to use paid sick leave for reasons other than the employee's own illness, including "for death, illness or disability in the employee's immediate family."49 Knussman's wife was bedridden as a result of complications related to childbirth. Accordingly, Knussman, who had ample sick leave, requested four to eight weeks of paid leave to care for his wife and newborn daughter, but was given only two weeks of leave.50 While on leave, Knussman was performing the essential duties in caring for his newborn daughter — changing diapers, feeding, bathing, and taking her to doctor visits.51 During the leave period, Maryland enacted a statute the allowed the use of paid sick leave by state employees to care for their newborns.52 The statute permitted "primary care givers" to "use, without certification of illness or disability, up to 30 days of accrued sick leave to care for a child . . . immediately following . . . the birth of the employee's child."53 The statute defined "primary care giver" as "an employee who is primarily responsible for the care and nurturing of a child."54 By contrast, "a secondary caregiver was an employee who is secondarily responsible for the care and nurturing of a child" and might use up to 10 days of accrued sick leave.55 Pursuant to the new Maryland statute, Knussman requested an extension of his leave on the basis that he was the primary caregiver for his child.56 His request was denied.57 The Human Resources Department explained that the State Police Department interpreted that definition of a

IPER REPORT "primary caregiver" to include women only.58 The Human Resources representative went so far as to state, "God made women to have babies and, unless [the plaintiff] could have a baby, there is no way [he] could be a primary care [giver]."59 She also told Knussman that his wife needed to be "in a coma or dead" for him to qualify for extended leave.60 Knussman claimed that his leave request was denied as a result of gender discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. The court stated that "[g]overnment classifications drawn on the basis of gender have been viewed with suspicion for decades"61 and that "a gender classification is subject to heightened scrutiny and will fail unless it serves an important government objective and [is] substantially related to achievement of those objectives."62 The Fourth Circuit held that the Department's interpretation of "primary caregiver" did not serve an important government interest; rather, it was simply an invalid gender classification based on stereotypes.63

B. Title VII Disparate Treatment Attorneys have relied on Title VII more than any other statute when challenging employers' alleged unfair treatment of family caregivers in the workplace. Title VII disparate treatment claims are by far the most common type of FRD action.64 A common scenario for an FRD Title VII claim is where a female applicant is asked whether she has or plans to have children and, if so, how she will manage her work responsibilities. Once such case is Barbano v.

Madison County,65 where the plaintiff applied for a position as the director of the county veteran's service and was interviewed by a panel. During the interview, Barbano was asked about

Winter 2008 her plans to have a family and whether her husband would object to her transporting male veterans. 66 Barbano objected to these the questions on the basis that they were discriminatory.67 However, the interviewer required her to answer, stating that the questions were relevant because he didn't want to hire "some woman" who would just get pregnant and quit.68 The other interviewers allowed this line of questioning to continue.69 Although the plaintiff was considered qualified for the position, the county ultimately selected a male applicant.70 The court found that the questions asked of the plaintiff were clearly discriminatory and unrelated to a bona fide occupational qualification.71 Further, the plaintiff was asked only one question related to her qualifications for the position.72 The discriminatory questions were essentially the entire interview. All of the other interviewers acquiesced to the discriminatory behavior and voted in favor of the male applicant. Given the evidence and the county's stipulation that the plaintiff was qualified for the position, the Second Circuit affirmed the trial court's verdict in favor of the plaintiff.73 Sivieri v. Commonwealth of Massachusetts, Department of Transitional Assistance74 is a classic example of another type of Title VII FRD case, where an employer takes an adverse employment action based on stereotypes about what working mothers want and don't want in a job. Sivieri alleged that she was passed over for a promotion while pregnant and that a less-qualified female with no children was selected.75 Indeed, the position was given to an employee that Sivieri had trained.76 When she returned from maternity leave, Sivieri noticed a negative attitude against women with small children.77 Her supervisors and managers often made derogatory comments about women with young

4

children and the negative effects of having women employees bearing children.78 One supervisor even stated that the "the unit would remain effective 'as long as nobody else g[ot] pregnant.'"79 Sivieri eventually received a promotion, but so did more junior employees without small children.80 When Sivieri asked her manager why she had been repeatedly passed over for promotions, he told her that the managers assumed she wasn't interested in promotion now that she was a mother.81 Further, the manger stated that he was "surprised she was upset at not getting promoted, considering her family obligations at home."82 He also explained that the more junior employees without small children were promoted because they could put in extra hours.83 Sivieri alleged that she was "discriminated against . . . based on a gender stereotype, namely, the belief that a woman cannot be both a good mother and a committed worker."84 Sivieri's claim presented an issue of first impression under the Massachusetts anti-discrimination law. Accordingly, the court turned to Title VII precedent for guidance. The court primarily relied on the Price Waterhouse, Hibbs, and Back decisions discussed above.85 In so doing, the court held that "stereotypical remarks about the incompatibility of motherhood and employment can be evidence of gender discrimination . . .86 Basing employment decisions on such sex-based overgeneralizations constitutes gender discrimination . . ."

Consequently, the court denied the defendant's motion for summary judgment.87

C. Pregnancy Discrimination All pregnancy discrimination cases by their very nature are FRD claims.

Pregnancy discrimination cases may

IPER REPORT be brought under Section 1983 as well as the Pregnancy Discrimination Act ("PDA").

The PDA states that "women affected by pregnancy . . . shall be treated the same . . . as other persons not so affected but similar in their ability or inability to work."88 The PDA "addresses the stereotype that women are less desirable employees because they are liable to become pregnant" and "insures that the decision whether to work while pregnant [is] reserved for each individual woman to make for herself."89 Therefore, an employer cannot take adverse action against a pregnant employee "because it anticipated that she would be unable to fulfill its job expectations."90 A typical pregnancy discrimination case arises where the plaintiff alleges that she was terminated because of her pregnancy. For example, in Suarez v. Illinois Valley Community College,91 the plaintiff was terminated from her secretarial position ten days after she informed her supervisors that she was pregnant. Suarez alleged, among other things, that she was terminated in violation of the PDA as well as Section 1983 and the Equal Protection clause.

In addition to the timing of her termination, Suarez submitted evidence that one of her supervisors, upon learning of plaintiff's pregnancy, said "here we go again."92 The supervisor who made the statement explained in his deposition that "if he made that statement it was probably because the pregnancy would mean they would need to replace the plaintiff.93 In response to plaintiff's allegations, the defendants argued that Suarez was terminated because she was not qualified for her position and the decision to terminate her was made before she announced her pregnancy.

The court rejected the defendant's first argument, because the plaintiff

Winter 2008 relied on the direct method of proving discrimination and, therefore, her job performance was irrelevant.94 With respect to the defendants’ timing defense, the court found that the supervisor's derogatory statement and deposition testimony coupled with discrepancies in the defendants' testimony relating to the timing of their decision to terminate Suarez created a triable issue of fact.

Accordingly, the court denied defendant's request for summary judgment on plaintiff's Title VII PDA claim.95 Another typical pregnancy discrimination claim is harassment or hostile work environment. In Borchert v. State of Oklahoma,96 the plaintiff alleged that her relationship with her supervisor deteriorated after she informed her supervisor of her pregnancy. Specifically, the supervisor rolled her eyes and congratulated Borchert in a “hateful manner” when she announced her pregnancy. After learning of plaintiff's pregnancy, the supervisor refused to consult with her on issues relating to the child care center where she worked, allowed other employees to make harassing comments regarding her pregnancy, harassed plaintiff publicly, and reassigned plaintiff's administrative responsibilities to other employees who were not pregnant.97 Disparaging comments regarding plaintiff's severe and ongoing nausea occurred on a daily basis. Plaintiff further alleged that her supervisor told her to “get over it” and said that “she wasn't really sick.”98 The situation was exacerbated when the plaintiff began to experience complications and went on FMLA leave. Shortly after returning from leave, Borchert provided a doctor's note imposing a twenty-pound lifting restriction. Defendants told Borchert that she could not perform the essential functions of her position with such a restriction. Borchert argued

5

that because she worked with the newborns, the weight restriction was not an issue. Defendants disagreed and terminated her.99 The court found that the comments were both pervasive in that they occurred multiple times each day and severe because they were “highly insensitive and likely exacerbated the distress created by plaintiff's complication-ridden pregnancy.”100 The court also found it persuasive that Borchert's supervisor made the derogatory comments and that she did so in front of other employees. Accordingly, the court found that plaintiff put forth sufficient evidence of a hostile work environment based on her pregnancy.101 A less common pregnancy discrimination claim is one where the plaintiff alleges that she was discriminated against because she may become pregnant. In Walsh v. National Computer Systems,102 the plaintiff, an account representative, put forth considerable evidence that during and after her pregnancy she was subjected to chronic and severe harassment by her supervisor.103 The court found sufficient evidence that Walsh was discriminated against because she was pregnant and may become pregnant in the future. In so doing, the court affirmed the jury's verdict for the plaintiff.

D. Retaliation The Supreme Court's definition of "adverse action" in Burlington Northern and Santa Fe Railway Company v. White (BNSF),104 will play a critical role in FRD law. There, the Court rejected the requirement imposed by some circuits that the adverse action be related to employment in order for the plaintiff to prevail in a retaliation claim.105 The Court also established the level of adversity necessary to make out a case of retaliation. Noting that Title VII's anti-retaliation provi-

IPER REPORT sion does not protect from all retaliation but only from retaliation that causes harm, the court set the following standard: "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse"106 in light of the particular circumstances surrounding the action, which means that the challenged action "well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'"107 Accordingly, the Court's holding eliminated the protection previously provided to employers by judicial decisions holding that a lateral transfer, under any circumstance, is not a materially adverse action.108 To demonstrate how circumstances play a role in retaliation cases, the Court used an example of a caregiver situation, saying that a schedule change may ordinarily matter little to an employee and thus would not be materially adverse, but to a mother with school age children, a schedule change could "matter enormously" making the change a materially adverse action.109 In so doing, the court expressly adopted the Seventh Circuit's findings in Washington v. Illinois Department of Revenue.110 In Washington, the plaintiff, a female manager, complained of race discrimination. She had been working a flexible schedule in order to care for her son, who had Down's Syndrome.

In retaliation for her complaint, her employer moved her to another position with the same title, pay, and duties, but a standard schedule. The Seventh Circuit held that while a lateral transfer to a substantially similar position is not ordinarily an adverse action, for the plaintiff, the change was significant and thus supported a claim of retaliation.111 V. FMLA Claims Family and Medical Leave Act ("FMLA") cases, like pregnancy

Winter 2008 discrimination cases, always qualify as FRD claims. FMLA FRD cases typically arise when an employee seeks leave to care for a newborn or recently adopted child or a seriously ill family member. Private sector as well as state, municipal, and non-civil service federal employees are covered

by Title I of the FMLA, which provides eligible employees with a private right of action. However, federal civil service employees are covered by Title II of the FMLA, which does not include a private right of action. Accordingly, federal civil service employees may not recover damages against the federal government for violations of the FMLA.112

A. Interference Claims The FMLA provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title."113 An employer interferes with an employee's rights under the FMLA by refusing to authorize leave, discouraging an employee from taking leave, shortening the length of leave and considering the taking of leave as a negative factor in employment actions.114 A common fact pattern in an FMLA interference claim is where the employer fails to inform the employee of his or her FMLA rights, thereby denying the employee's right to leave.

When the employee becomes aware of his right to FMLA leave, the employer states that it is "too late" to request leave. For example, in Williams v.

Illinois Department of Corrections,115 plaintiff's mother became ill from kidney failure, obesity, high blood pressure and diabetes. As a result, Williams decided that he needed to move in with his mother to take care of her for an undetermined period of time.116 Because Williams did not have sufficient leave time accrued, his supervisor told him that his only option was to resign. Relying on the

6

supervisor's advice, Williams tendered his resignation. That evening, while reviewing his employee handbook, Williams came across the agency's FMLA policy.117 The next day when Williams asked to withdrawn his resignation, his supervisor told him that he was too late. His resignation had already been passed on to the central office. The central office, however, did not process Williams' resignation until more than two weeks later.118 In response to Williams' FMLA interference claim, the Department argued that plaintiff was not entitled to FMLA leave because he failed to provide adequate notice as required by the collective bargaining agreement ("CBA"). Williams' did not submit his request in writing at least 30 days in advance of his need for leave and he did not provide enough information to place the Department on notice that he may be entitled to leave.119 The court had a very different view.

It found that a reasonable jury could find that Williams was entitled to FMLA leave even though he did not give proper notice under the Department's CBA. Williams' failure to comply with notice provisions was likely due to the Department's interference with his attempt to take leave. Further, during his conversation with his supervisor, Williams provided sufficient information about his mother's illness to indicate that she suffered from a serious health condition. Further, Williams was clearly inquiring about leave.120

B. Retaliation Claims The key element in an FMLA retaliation claim is a causal link between protected FMLA activity and an adverse employment action.121 Perhaps, one of the most widely publicized (and costly for the defendant) FRD FMLA retaliation cases was Schultz v. Advocate Health discussed at the beginning of this

IPER REPORT article.122 A more novel retaliation case involves the relationship between the employee and the person for whom he or she cares. In Dillon v. MarylandNational Capital Park and Planning Commission,123 the plaintiff requested three weeks leave, to be taken at the end of December to take a family vacation to Jamaica where several of her relatives lived. Her request was denied. In November, she re-submitted the same request which was again denied, but she was offered leave from December 12 through December 20.124 On December 19, Dillon e-mailed her supervisor from Jamaica stating that her grandmother had sustained a small stroke a few days before she had arrived and she now needed to stay.125 Dillon was terminated when she returned to work.126 As the FMLA does not allow for leave to care for a grandparent, the plaintiff could only have been entitled to FMLA leave if her grandmother stood in loco parentis to her.127 Dillon asserted that her grandmother "basically raised [her]," provided for her financially as a child and gave her a home at the age of 16, when her own mother kicked her out of their house.128 The court held that the evidence created a triable issue as to whether the plaintiff was entitled to FMLA leave, but it was not so conclusive as to require a finding, as a matter of law, that her grandmother stood in loco parentis to her.129 Therefore, both parties' motions for summary judgment as to the FMLA claim were denied.130

VI. Americans with Disabilities Act’s Association Clause The association clause of Title I of the Americans with Disabilities Act of 1990 ("ADA")131 protects employees who care for a person with a disability.132 Courts have applied this statute to conclude that an employer may not refuse to hire an applicant

Winter 2008 because the applicant has a disabled child.133 A major hurdle for plaintiffs in utilizing the association clause of the ADA is that the family member needing care must be an individual with a "disability" as defined by the ADA.134 An individual is "disabled" under the ADA if the person has a "physical or mental impairment that substantially limits one or more of the major life activities" of such individual, "a record of such an impairment," or been "regarded as having such an impairment."135 Despite this hurdle, plaintiffs have used the association clause to challenge adverse employment actions based on their caregiving responsibilities.136

VII. Executive Order 13152 Executive Order 13152, signed by President Clinton in 2000, amends the Equal Employment Opportunity in the Federal Government provision created by Executive Order 11478 to prohibit employment discrimination against federal employees based on their "status as a parent."137 The Executive Order "does not confer any right or benefit enforceable in law or equity against the United States or its representatives."138 Aggrieved parents therefore cannot file a complaint with the EEOC or bring a direct judicial action. The administrative EEO complaint procedures of federal agencies are the only avenue of relief available to federal employees who believe they have been discriminated against because of their parental status.

VIII. State Causes of Action State causes of action provide yet another avenue of relief for both public and private sector FRD plaintiffs.

Many states' anti-discrimination laws provide protections and remedies for FRD plaintiffs that are equal to or, in some cases, broader than those found

7

in Title VII. Alaska and the District of Columbia provide particularly strong protection for FRD plaintiffs because their anti-discrimination statutes expressly prohibit employer practices that affect workers on the basis of parental status or family responsibilities.139 The Illinois Human Rights Act does not expressly include "family responsibilities" or "familial status" among its list of protected categories.140 However, Administrative Code 5210.80 defines "sex discrimination" as including the restriction of employment opportunities of women with minor children.141 State family and medical leave laws are also potential bases for FRD claims. Some state leave laws are identical to the federal FMLA, while others provide broader protections.

Pursuant to state law, public employees in Illinois are entitled to the same coverage as is provided by the FMLA, with the added option to extend the leave period up to six months at the discretion of the Auditor General.142 Finally, common-law actions have also been used to challenge adverse job actions taken because of an individual's family responsibilities. Among the most typical common law claims, where recognized, are: (1) wrongful discharge;143 (2) intentional infliction of emotional distress;144 (3) implied covenant of good faith and fair dealing;145 (4) tortious interference with contract;146 and (5) breach of contract.147

IX. Conclusion The numerous variations in FRD claims make these cases particularly challenging to prove as well as defend.

Agencies and their attorneys need to have effective prevention programs in place. Training of managers about stereotypes of caregivers and how they lead to FRD claims is essential, as shown by the smoking gun statements. In addition, prevention should include a review of all relevant

IPER REPORT employment policies and actions for possible FRD liability. Adding "family responsibilities discrimination" to existing anti-discrimination policies and incorporating information about it into the agencies' trainings may help avoid punitive damages.

Lessons from the case law help plaintiff's attorneys as well. Adding FRD fact patterns to their case screenings can help them identify potential FRD cases that otherwise might be missed. Premature losses can be avoided by making sure that the correct causes of action are pled.

Finally, being prepared to educate EEOC and agency investigators, judges and juries about what FRD is and how it plays out in the workplace X can help strengthen your case.

Winter 2008 NOTES 1. Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 114 (2d Cir. 2004). On remand, the case proceeded to trial and the jury returned a verdict for the defendants, which the Second Circuit affirmed. 161 Fed. Appx. 96 (2d Cir. 2005).

2. Back, 365 F.3d at 115.

3. Id. at 122.

4. Schultz v. Advocate Health, No. 01 C 702, 2002 WL 1067256 (N.D. Ill. 2002).

5. See, Dee McAree, Family Leave Suit Draws $11.65 Million Award, Chicago Verdict May Be Sign of Emerging Trend, NAT’L L.J., Nov. 11, 2002.

6. Id. 7. Id. 8. See Matt O’Connor, Fired Worker Awarded Millions: Hospital Worker Sacked After He Took Family Leave, CHICAGO TRIB., Oct. 31, 2002.

9. Id. 10. Id. 11. 42 U.S.C. §§ 2000e to 2000e-17 (2000).

12. 42 U.S.C. § 2000e(k) (2000).

13. 41 U.S.C. §1983 (2000).

14. 29 U.S.C. §§ 2601-2654 (2000).

15. 42 U.S.C. §§ 12101-12300 (2000).

16. 29 U.S.C. §§ 651-78 (2000).

17. 29 U.S.C. §§ 1001-1461 (2000).

18. MARY C. STILL, LITIGATING THE MATERNAL W ALL : L AWSUITS C HARGING D ISCRIMINATION AGAINST WORKERS WITH FAMILY RESPONSIBILITIES (Center for WorkLife Law, University of California Hastings College of the Law) (June 6, 2006.), available at <http:// www.uchastings.edu/site_files/WLL/ FRDreport.pdf>. In comparison, all other discrimination claims rose only 23% during the same time period.

19. Id. at 13. "Success" on the part of the plaintiff is defined as any cases that do not result in a favorable result for the employer, including verdicts, settlements, denials of motions to dismiss and summary judgment).

20. See Flores-Suarez v. Turabo Med. Ctr. P'ship, 165 F. Supp. 2d 79 (D.P.R. 2001) ($940,001); Rau v. Apple Rio Mgmt. Co., 85 F. Supp. 2d 1344 (N.D. Ga. 1999) ($1,826,000, later reduced to $334,000); Xanders v. Ill. Cent. Broad. Co., Case no.

97-1075 (Peoria County, Illinois, 1999) ($1,600,000)); Dee McAree, Family Leave Suit Draws $11.65 Million Family Leave Award, NAT ' L L.J., Nov, 11, 2002, at A4, (Col. 1).

21. EEOC, Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, http:// www.eeoc.gov/policy/docs/caregiving.html (last visited Nov. 12, 2007).

22. Knussman v. State of Md., 16 F.Supp.2d 601, 614 (D. Md. 1998).

23. George Lenard, Authoritative Summary of Law on Family Responsibilities Discrimination, http://www.employment blawg.com/2007/authoritative-summaryof-law-on-family-responsibilities-discrimination/ (last visited Nov. 11, 2007).

24. 490 U.S. 228 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074, as recognized in Landgraf v. USI Film Products, 511 U.S. 244 (1994).

8

25. Price Waterhourse, 490 U.S. at 250.

26. 538 U.S. 721 (2003).

27. Id. at 738.

28. Id. at 736.

29. 365 F.3d 107 (2d Cir. 2004).

30. Id. at 122.

31. EEOC, Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, www. eeoc.gov/policy/docs/care giving. html (last visited Nov. 12, 2007).

32. Id. at 3.

33. Id. 34. Id. at 5.

35. 41 U.S.C. §1983 (2000).

36. Id. 37. Monroe v. Pape, 365 U.S. 167, 211 (1961), overruled on other grounds by Monell v. Dep't of Soc Servs., 436 U.S. 658 (1978); Back, 365 F.3d at 122-23.

38. Monroe, 365 U.S. at 225.

39. Id. at 172.

40. Patsy v. Bd. of Regents, 457 U.S. 496, 516 (1982).

41. See Wilson v. Garcia, 471 U.S. 261, 280 (1985).

42. Id.; 42 U.S.C. §1983 (2000).

43. Brown v. Gen. Servs. Admin., 425 U.S. 820, 834 (1976).

44. Complaint procedures for federal employees can be found on the EEOC website at www.eeoc.gov/federal/fed process.html.

45. Back, 765 F.3d at 117.

46. Id at 119-20.

47. 272 F.3d 625 (4th Cir. 2001).

48. Id. at 627.

49. Id. at 628.

50. Id. 51. Id. at 629.

52. Id. at 628.

53. Id. 54. Id. 55. Id. 56. Id. at 629.

57. Id. 58. Id. 59. Id. at 629-630.

60. Id. at 630.

61. Id. at 635.

62. Id. 63. Id. at 636.

64. A handful of FRD plaintiffs have been successful in proving disparate impact claims. However, disparate impact claims present a number of unique issues that are outside the scope of this article.

65. 922 F.2d 139 (2d Cir. 1990).

66. Id. at 141.

67. Id. 68. Id. 69. Id. 70. Id. at 142.

71. Id. at 143.

72. Id. 73. Id. at 143, 147.

74. 21 Mass.L.Rptr. 97, 2006 WL 1707954 (Mass. Super. Ct. June 22, 2006).

75. Id. at *1.

76. Id. 77. Id. 78. Id. 79. Id. 80. Id. at *2.

81. Id. 82. Id.

IPER REPORT 83. Id. 84. Id. at *4.

85. Id. 86. Id. at *6.

87. Id. at *7.

88. 42 U.S.C. § 2000e(k) (West 2000).

89. Wagner v. Dillard Dept. Stores, 17 Fed. Appx. 141, 149 (4th Cir. 2001), citing Maldonado v. U. S. Bank, 186 F.3d 759, 762 (7th Cir. 1999).

90. Wagner, 17 Fed. Appx. at 149.

91. 688 F.Supp. 376 (N.D. Ill. 1988).

92. Id. at 378.

93. Id. at 381.

94. Id. 95. Id. The court also denied summary judgment with respect to Suarez' Section 1983 claim.

96. 2006 U.S. Dist. LEXIS 5786 (N.D Okla., Jan. 30, 2006).

97. Id. at *2.

98. Id. at *9.

99. Id. at *4.

100. Id. at *12.

101. Id. The court also found that plaintiff put forth sufficient evidence to support her claim that she was terminated because of her pregnancy. Id. at *15-22.

102. 332 F.3d 1150 (8th Cir. 2003).

103. Id. at 1155.

104. Burlington N. and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006).

105. Id. at 2408.

106. Id. at 2415.

107. Id., quoting Washington v. Ill. Dep't of Revenue, 420 F.3d 658, 662 (7th Cir. 2005).

108. See e.g., Scott v. N.J., 143 F.3d 443, 446 (3d Cir. 2005); Sussman v. Powell, 64 Fed. Appx. 248, 249 (D.C. Cir. 2003); Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996).

109. Burlington, 126 S. Ct. at 2415.

110. Washington, 420 F.3d 658, 662.

111. Id. at 661.

112. Gibson-Michaels v. FDIC, 2007 U.S. Dist LEXIS 32564 (D.D.C. May 3, 2007); Giesken v. Dept. of Veterans Affairs, 2007 U.S. Dist. LEXIS 31971 (E.D.Mich. May 2, 2007); Martinez,v. Snow, 2006 U.S. Dist. LEXIS 93191 (E.D.Cal. Dec. 12, 2006).

113. 29 U.S.C. § 2615(a)(1) (2006).

114. 29 C.F.R. § 825.220(b)-(c) (2006); Liu v. Amway Corp., 347 F.3d 1125 (9th Cir. 2003).

115. 2007 U.S. Dist. LEXIS 17119 (S.D. Ill., Mar. 9, 2007).

116. Id. at *4.

117. Id. at *5.

118. Id. at *6.

119. Id. at *13-14.

120. Id. at *17-20.

121. See Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998).

122. Schultz, 2002 WL 1067256; see supra notes 4-10 and accompanying text.

123. 382 F. Supp.2d 777, 779 (D.Md. 2005).

124. Id. 125. Id. at 780.

126. Id. at 781.

127. Id. at 785; 29 C.F.R. 825.113.

128. Dillon, 382 F. Supp. 2d at 787-788.

129. Id at 787-788.

130. Id. 131. 42 U.S.C. §§ 12101, et seq. (2006).

132. 42 U.S.C. § 12112(b)(4) (2006).

Winter 2008 133. See Abdel-Khalek v. Ernst & Young, LLP, 1999 U.S. Dist. LEXIS 2369 (S.D.N.Y. March 5, 1999).

134. 42 U.S.C. § 12102(2) (2006).

135. Id. 136. Padilla v. Buffalo State College Foundation, Inc., 958 F. Supp. 124 (W.D.N.Y 1997); McGrenaghan v. St. Denis Sch., 979 F. Supp. 323 (E.D. Pa. 1997); Jackson v. Service Eng., 96 F. Supp. 2d 873 (S.D. Ind. 2000).

137. Exec. Order No. 13,152, 65 Fed. Reg. 26,115 (May 2, 2000).

138. Id. 139. ALASKA STAT. § 18.80.200 (2006).

D.C. CODE ANN § 2-1402.11 (2006).

140. 775 ILCS 5/2 (2007).

141. ILL. ADMIN. CODE tit. 56, § 5610.80 (2007).

142. ILL. ADMIN. CODE tit. 2, § 600.686 (2007); See National.Partnership For Women and Families, "State-By-State Guide to Unpaid, Job-Protected Family and Medical Leave Laws" (March 27, 2003) at http://www.nationalpartners hip.org/site/DocServer/stateunpaid fmllaws.pdf?docID=969 (last visited October 22, 2007).

143. Edwards v. Unimin Corp., 1995 Conn. Super. LEXIS 3126 (Super. Ct. Conn. Nov. 8,1995); Hollingsworth v.

Time Warner, Inc., 812 NE.2d 976 (Ohio Ct. App. 2004).

144. Wilson v. Monarch Paper Co., 939 F.2d 1138 (5th Cir. 1991); Schultz, No. 01 C 702, 2002 WL 1067256; Naeem v.

Mckesson Drug Company, et al., 444 F.3d 593 (7th Cir. 2006).

145. Theroux v. Singer, 2006 Mass. Super. LEXIS 277 (Mass. Super. Ct., Apr. 20, 2006).

146. Zimmerman v. Direct Federal Credit Union, 262 F.3d 70 (1st Cir. 2001); Skaggs v Subway Real Estate Corp., 2006 WL 1042337 (D. Conn. Apr. 19, 2006); Sura v.

Stearns Bank, 2002 WL 31898167 (D.Minn. Dec. 18, 2002).

147. Toussaint v. Blue Cross & Blue Shield of Mich., 292 N.W. 2d 880 (Mich.

1980).

X

9

Recent Developments Recent Developments is a regular feature of The Illinois Public Employee Relations Report. It highlights recent legal developments of interest to the public employment relations community. This issue focuses on developments under the two collective bargaining statutes and the equal employment opportunity laws.

IELRA Developments Arbitration In Niles Township High School Dist Dist. 219 v. IELRB, 2007 WL 4410683 (Ill. App.1st Dist. Dec. 17, 2007), the First District Appellate Court held that nontenured, probationary teachers who were dismissed were not entitled to binding arbitration because their collective bargaining agreement ("CBA") expressly limited their appeal process.

In addition, the court held that the union's claims regarding the use of improper evaluation procedures prior to the dismissals did not have support in the CBA. In April 2007, the school district notified three, non-tenured probationary teachers that their contracts would not be renewed for the following school year. The union filed grievances on the teachers' behalf challenging this decision.

After reviewing the grievances, the school district denied them, and the union demanded arbitration. However, the school district refused to engage in arbitration, claiming the parties' CBA specifically provided that decisions to dismiss nontenured teachers were not arbitrable.

In response, the union filed a charge

IPER REPORT with the IELRB. The union contended that it had grieved the school districtâ&#x20AC;&#x2122;s failure to comply with procedural requirements of the CBA relating to teacher evaluations and personnel files, and not the actual decision to dismiss the teachers. The union argued that the former issues were subject to arbitration under the CBA. The administrative law judge agreed, and the IELRB accepted the ALJ's recommendation.

Reviewing the case de novo and considering all documents produced during the investigatory stage of the IELRB proceeding, the First District examined whether the union's allegations stated an arbitrable claim under the CBA. After reviewing the applicable sections of the CBA that the union claimed the school district violated, the court held that nowhere in the CBA was it required that the school district take specific procedural steps before dismissing nontenured teachers. The court stated that the only limitation on the school district's discretionary authority in this matter would be those limits established by law, and the union did not allege that any laws had been violated. In conclusion, the court stated that procedural steps for evaluation of nontenured teachers could have been required as part of the CBA, but the procedural steps the union claimed were required here were in fact not required under the plain language of the CBA. The court concluded that the matter was not arbitrable.

Employee Representation Petitions In Flora Community Unit School District No. 35 and Unit No. 35 Teaching Assistants Education Association, IEA/NEA, Case No. 2007RM-0001-S (IELRB 2007), the IELRB considered Flora Community Unit School District No. 35's petition, brought under Section 7(c)(2) of the

Winter 2008 IELRA, questioning the majority status of an incumbent exclusive bargaining representative, Unit No. 35 Teaching Assistants Education Association, IEA/NEA. After considering the stipulated record and applicable president, the IELRB granted the District's request and ordered an election.

The IELRB found that when the Association was certified as the exclusive bargaining representative in 1999, there were 15 employees in the bargaining unit. Since 1999, however, there was a steady decline in the number of employees paying Association dues, with only one employee requesting a payroll deduction for Association dues since the 2004-2005 school year. On June 18, 2007, the Association did inform the District that it had three dues paying members who would represent the Association in the negotiation of a successor collective bargaining agreement.

The District filed a petition seeking an election under Section 7(c)(2) of the IELRA. Section 7(c)(2) authorizes an employer representation petition where the employer "doubts the majority status of an exclusive bargaining representative. TheIELRB interpreted section 7(c)(2) by looking to analogous authority under the National Labor Relations Act. In Allentown Mack Sales and Service, Inc. v. NRLB, 522 U.S. 359 (1999), the United States Supreme Court interpreted the National Labor Relations Board's requirement that an employer have a good faith reasonable doubt of a union's continued majority status to mean objective evidence giving rise to a reasonable uncertainty. The IELRB adopted this standard to section 7(c)(2). The IELRB held that the decline in the number of Association members to the point where most of the bargaining unit were not members gave rise to a reasonable uncertainly concerning the Association's continued majority support.

10

Board Member Michael H. Prueter dissented. He would have found that there did not exist reasonable good faith uncertainty regarding the Association's majority status. Prueter noted that many employees might approve of the Association but, for other reasons, decide not to lend the Association their financial support.

Therefore, he would have dismissed the employer's petition.

IPLRA Developments Bargaining Units In Illinois Nurses Association and State of Illinois, S-RC-07-036 ILRB State Panel 2007), the ILRB State Panel reversed and Administrative Law Judge's recommended decision to dismiss a petition filed by the Illinois Nurses Association ("INA"). The INA sought to represent exclusively a unit of six Public Service Administrators ("PSAs") employed by the Department of Healthcare and Family Services' Office of Inspector General's Bureau of Administrative Litigation. The State of Illinois claimed that the petitioned for unit was not appropriate and that the members of the unit were managerial and, thus, excluded from collective bargaining under the IPRA. The State Panel reversed the ALJ's decision to dismiss the INA's petition.

First, the Board examined the State's claim that bargaining unit was inappropriate under section 9(b) of the Act because the proposed unit was too narrow. Section 9(b) looks at the following factors to determine the appropriateness of the bargaining unit: "historical pattern of recognition; community of interest including employee skills and functions; degree of functional integration; interchangeability and contact among employees; fragmentation of employee groups; common supervision, wages, hours and other working conditions of the employees involved; and the desires of the employees." The Board

IPER REPORT found that while the fragmentation factor favored dismissing the petition, it was the sole factor leaning towards dismissal. That factor, alone, was insufficient for a finding of dismissal.

Thus, the Board reversed the ALJ's finding of inappropriateness.

Next, the Board examined the State's claim that The PSAs were excluded from bargaining because they were managerial. Section 3(j) of the IPLRA defines "managerial" employee as one "engaged predominantly in executive and management functions and is charged with the responsibility of directing the effectuation of management policies and practices." Illinois courts have developed a two-part test to determine if individuals are managerial: 1) is the employee engaged in executive/management duties and 2) does the employee direct the effectuation of management policies and functions?

Meeting the first prong requires the employee possess independent authority and judgment to "broadly effect" the organization. The second prong requires the employee have discretion to determine how policies will be effected. While PSAs used professional discretion and technical expertise, professional employees are not the same as managerial employees. There was no evidence the employees possessed sufficient independence and responsibility to effectuate policy as required by the Act. So, contrary to the ALJ's recommendation, the Board found that the PSAs were not managerial under 3(j).

Contract Bar Rule In Policemen's Benevolent Labor Committee v. City of Perkin, Case No. S-RC-07-112 (ILRN State Panel 2007, the State Panel affirmed the ALJ's decision to order a representation election among certain city police officers who were already represented by the incumbent union, Fraternal

Winter 2008 Order of Police ("FOP"). The Board ordered the election over the city's objection that the collective bargaining agreement between the FOP and the City barred a representation petition. The agreement stated that it "shall be effective from May 1, 2003, and shall remain in full force and effect until April 30, 2007." Thus, under Section 9(h) of the Act, because the charging party filed the representation petition between 60 and 90 days prior to the April 30 Agreement expiration date, the petition was timely filed.

The FOP and City argued that because the Agreement was extended by amendment to April 30, 2009, the representation petition was not timely filed. However, the Board explained that when, prior to the window period, the parties extend an Agreement beyond the terminal date of the existing contract, the extension does not bar an election on a petition filed during the original window period.

Thus, the agreement extension here did not bar the charging party from filing a representation petition. This rule protects the employees' right to choose another bargaining representative over the stability of contract.

The City also argued that employees in the rank of sergeant must be barred from organizing under the Act's exception for supervisors. The Board rejected this argument outright, explaining that the sergeants at issue here had been organized for nearly twenty-one years. Thus, "the Employer's action in this regard not only undercuts greatly the credibility of its supervisory contention, but also is an apparent violation of Section X 10(a)(1) of the Act."

11

Further References (compiled by Yoo-Seong Song, Librarian, Institute of Labor and Industrial Relations Library, University of Illinois at Urbana-Champaign)

NOTE: Due to the temporary closure for renovations of the ILIR Library, Further References will not appear in this issue. It will return in the next issue.

EDITOR’S CORRECTION: In our prior issue, volume 24, number 4, Fall 2007, the article, Psychological Evaluation in Labor Arbitration by Sara D. Jay and Patricia J. Aletky contains an error. Page 3, column 3 reads, “The MMPI-2 is a checklist filled out by the subject...” It should read, “The MMPI-2 is a questionnaire...” We apologize for the error.

IPER REPORT

Winter 2008

The Report Subscription Form (Volume 25, Numbers 1-4) The publication of The Illinois Public Employee Relations Report reflects a continuing effort by Chicago-Kent College of Law and the Institute of Labor and Industrial Relations to provide education services to labor relations professionals in Illinois.

The Report is available by subscription through Chicago-Kent College of Law at a rate of $40.00 per calendar year for four issues. To subscribe to IPER Report, please complete this form and return it with a check or billing instructions to:

Institute for Law and the Workplace Chicago-Kent College of Law Illinois Institute of Technology 565 W. Adams Street Chicago, IL 60661-3691

Please start my subscription to IPER Report.

Please bill me.

Enclosed is my check payable to Chicago-Kent College of Law. We also accept MasterCard, VISA and Discover Card; Please complete the following information: MasterCard

VISA

Discover Card

No. Exp. Date (Cardholder Signature Required)

Name: Title: Organization: Address (Please give address where the IPER Report should be mailed.)

Tel.:

Date:

The Illinois Public Employee Relations Report provides current, nonadversarial information to those involved or interested in employer-employee relations in public employment. The authors of bylined articles are responsible for the contents and for the opinions and conclusions expressed. Readers are encouraged to submit comments on the contents, and to contribute information on developments in public agencies or public-sector labor relations. The Illinois Institute of Technology and University of Illinois at Urbana-Champaign are affirmative action/equal opportunities institutions.

Illinois Public Employee Relations Report . . .

Published quarterly by The Institute of Labor and Industrial Relations University of Illinois at Urbana-Champaign and Chicago-Kent College of Law llinois Institute of Technology, (ISSN 1559-9892), 565 West Adams Street, Chicago, Illinois 60661-3691.

Faculty Editors: Peter Feuille and Martin Malin Production Editor: Sharon Wyatt-Jordan

Student Editors: Russ Eisenstein, Lindsay M. Ferg, Austin Groothuis, and David Mussatt

12