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Despite Most Headlines, U.S. Supreme Court Decision On Title VII Exhaustion Requirements Likely to Have Limited Application
By Patrick Smith on June 5, 2019
Posted in Litigation and Trials, Title VII, U.S. Supreme Court
Another excellent post from our colleague Brandon Underwood:
A good rule of thumb that trial and appellate lawyers learn early in their careers is that you generally forfeit arguments you don't make. Suppose that a defendant takes a case to trial and loses, only to realize in briefing its appeal that the plaintiff's lawsuit was untimely under the statute of limitations. Too bad: the argument is too late, and so the appeals court will ignore it, even if the plaintiff's lawsuit really was too late. The defendant waived that argument.
But the rule has at least one exception: arguments about a court's jurisdiction. Unlike most other arguments, a party may challenge a court's jurisdiction to hear a case for the first time at any stage in the case—even in front of the Supreme Court. In other words, challenges to a court's subject-matter jurisdiction can't be waived, unlike the ill-fated statute-of-limitations challenge. (As a corollary, courts in our adversarial system don't typically raise arguments on their own. Except subject-matter jurisdiction, which courts must raise on their own.)
On June 3, 2019, the Supreme Court resolved a conflict in lower courts about whether a requirement in Title VII of the Civil Rights Act of 1964 is jurisdictional. Under Title VII, before a plaintiff may sue in court, she must first file a charge complaining of an unlawful act with an administrative agency—for instance, the Iowa Civil Rights Commission. This is part of what's known as exhausting administrative remedies, and federal courts have long held that a plaintiff who fails to exhaust administrative remedies can't sue in court. But courts disagreed about whether this charge requirement was jurisdictional, leading to conflict about whether the requirement may be waived or not.
Fort Bend County, Texas v. Davis (No. 18-525) unanimously holds that Title VII's charge-filing requirement is not jurisdictional and thus may be waived if not raised. Lois Davis filed a charge of sexual harassment and retaliation with the agency, and later tried to supplement her charge with a complaint of religious discrimination. The district court granted summary judgment for Davis's employer on all these claims.
On appeal, the appellate court remanded the religious-discrimination claim only for trial. Back in front of the district court, the employer argued for the first time that Davis hadn't raised the religious-discrimination claim in her charge. The district court agreed, ruling that it accordingly lacked jurisdiction. The appeals court then reinstated Davis's claim, holding that Title VII's charge-filing requirement is not jurisdictional and had been forfeited when Davis's employer failed to raise it earlier. The Supreme Court agreed with the appellate court.
In a short opinion, the Supreme Court reasoned that Title VII's charge-filing provisions read like a party's non-jurisdictional procedural obligations, not like jurisdictional obligations. These procedural obligations compel a plaintiff to submit information to the agency and wait a specified amount of time before filing a lawsuit. The provisions do not say they are jurisdictional. And although courts must enforce the charge-filing requirement if it is properly raised, a party forfeits the challenge by waiting too long.
The day-to-day effects of Davis are, to be sure, pretty limited, as the Supreme Court noted. Defendants have good reason to promptly raise the objection: to rid themselves of lawsuits. On the other hand, plaintiffs, the Supreme Court observed, "would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense."
In other words, plaintiffs in most cases will continue to file administrative charges as required by law. And in those cases where the plaintiff doesn't, defendants in most cases will not waive the challenge by failing to bring it up. Davis will figure in only unusual cases, like Davis itself.
Eighth Circuit Jurisdictional Ruling Offers a Lesson in Drafting Arbitration Agreements
Posted in Arbitration, Eighth Circuit
My Fredrikson & Byron colleague Brandon Underwood is the author of today's guest-post:
On May 31, 2019, in Webb v. Farmers of North America, Inc. (No. 17-3456), the Eighth Circuit dismissed an employer's appeal challenging how the lower court had read an arbitration agreement. The employer, citing the agreement with its employee, had actually persuaded the lower court to require the employee to arbitrate his case. So why the employer's appeal?
After the district court ordered him to arbitrate his case, the employee challenged who would arbitrate it, and the court sided with him. The Eighth Circuit then tossed the employer's appeal, holding that it lacked jurisdiction, primarily because the case wasn't yet final. Federal appellate courts don't ordinarily review non-final—or, "interlocutory"—orders.
But this is an employment law blog, and those are procedural points. Webb contains a lesson for employment lawyers (any lawyer who reads or writes contracts, really) because its underlying dispute was about an arbitration agreement's wording.
Under the agreement, the parties agreed to arbitrate their claims under "the rules" of the American Arbitration Association, a well-known arbitral body. Even so, the plaintiff contended this provision didn't require the AAA to be the arbitrator; a non-AAA arbitrator could preside, as long as it applied the AAA's rules. The district court agreed, finding that if the employer had meant for all the parties' disputes to be submitted to the AAA, it could have said so. So the dispute would be arbitrated—just not necessarily before the AAA.
It's worth emphasizing that the Eighth Circuit's opinion in Webb doesn't address the merits of the district court's ruling. Its correctness will have to be reviewed, if ever, in a later appeal.
But the case highlights the importance of specifically designating who will arbitrate employee disputes, rather than assuming that a reference to a particular body's rules is enough. If the arbitration agreement in Webb had specified that the arbitration would be administered by the AAA (or another body) under its rules, the district court would have lacked grounds to find the agreement ambiguous. Indeed, construction-industry contracts between contractors often contain this term or one similar to it. These contracts may supply useful models for designating an arbitral body. By specifying a particular arbitrator, parties can avoid having to reach agreement on mutually acceptable arbitrator, as the district court in Webb directed.
Eighth Circuit Rules No Retaliation Even Though Hospital Employee Terminated Close in Time to FMLA Usage
Posted in Eighth Circuit, FMLA, Human Resources Compliance
Sometimes employers become conditioned to believing that an employee who has recently used FMLA leave is effectively immune from discipline or discharge. It is no doubt true this employee presents a heightened litigation risk, but when the adverse action is handled properly the employer can mitigate that risk or at least make the potential claim more defensible. A recent opinion from the Eighth Circuit shows the importance of creating a discipline record that will negate any inference the discipline was motivated by an employee's FMLA usage.
The case is Beckley v. St. Luke's Episcopal-Presbyterian Hospitals (8th Cir. 5/16/2019). The plaintiff, Karen Beckley, worked as a surgical technician in the operating room of a hospital. She was promoted to the position in 2012 while using intermittent FMLA leave. Beckley continued to be approved and used intermittent FMLA for the next year, until August 2013. She again qualified for FMLA intermittent leave starting in April 2014 and continued to use the leave until her termination on March 20, 2015.
Starting in March 2014, Beckley started having performance problems. She received a "Level 1" warning on March 10, 2014; a "Level 2" warning on August 12, 2014, and a "final" warning on August 25, 2014. All of these warnings related to Beckley's failure to respond appropriately to emergency requests while on call.
In addition to the formal warnings, Beckley also received counseling for performance issues. On March 13, 2014 she was counseled for being inattentive to details. During a March 30, 2014 performance review Beckley's supervisor recommended she take specific steps to help her focus on her role as a technician and decrease the amount of time taking and repetitive questioning during a procedure. On April 7, 2014 the Hospital against counseled Beckley about the need to focus on the task at hand.
The event precipitating the termination occurred March 9, 2015. During a complicated surgical procedure, Beckley became contaminated in the operating room when she touched a non-sterile object. She also left the operating room to use the bathroom without telling the surgeon, and was gone for 10-15 minutes. Someone else entered the operating room during her absence to assist with the procedure. Beckley denied she entered a sterile field while contaminated. She admitted she left the operating room for 15 minutes, but seemed to think it was not a big deal, as she denied it was necessary for anyone to cover for her. She was terminated about ten days later.
Beckley sued the Hospital for FMLA retaliation, alleging she routinely suffered adverse employment actions following the exercise of FMLA leave. The key fact Beckley relied upon to support her FMLA retaliation claim was the temporal proximity between her FMLA use, discipline, and ultimately, her termination. Beckley also claimed she was treated differently than employees not on FMLA leave for what she considered to be minor infractions. Lastly, she pointed to other evidence of the Hospital's animus toward FMLA, including a statement from another employee that she needed to "watch herself" with regard to FMLA usage, and a supervisor's question whether she could schedule doctor appointments outside of work hours,
In affirming the grant of summary judgment to the Hospital, the court found that Beckley's use of FMLA leave without adverse consequences for nearly 18 months between October 2012 and March 2014 negated any inference that FMLA usage motivated the three warnings she received starting in March 2014. The court found persuasive the consistent record of discipline arising out of failure to abide by the on-call policy as well as other performance issues. There was little doubt Beckley was on notice of her performance problems before she was terminated. The court found Beckley's claims of different treatment were only her subjective belief, and the adverse comments about FMLA use were mere "stray remarks" that did not result in tangible injury or harm.
The Beckley opinion is an important reminder that an employer's hands are not tied because an employee has recently exercised rights under FMLA. Consistent and documented discipline of bad performance or behavior, especially when combined with evidence that of FMLA usage without consequence before the performance or behavior issues, will provide a persuasive defense.
Accommodating Stress: What is an Employer's Obligation when the Work Environment Triggers an Employee's Stress Related Disorder?
Posted in Disability Discrimination, Human Resources Compliance
Stress [stres] (noun): a state of mental or emotional strain or tension resulting from adverse or very demanding circumstances.
Almost all types of work is stressful at least some of the time. Some jobs are inherently stressful. So, how does an employer navigate an employee's request for accommodation that is based upon a medical condition, like post-traumatic stress disorder, that often manifests in stressful work situations? A recent ruling from the U.S. Court of Appeals for the Sixth Circuit shows there are limits to an employer's obligation to accommodate conditions like PTSD that are triggered by particular work circumstances.
The case is Tinsley v. Caterpillar Financial Services (6th Cir. 3/20/2019). The source of Tinsley's work stress was her supervisor. She claimed her supervisor's management style and decisions were so distasteful that it triggered her PTSD. Tinsley asked her employer to accommodate her PTSD condition by assigning her to a new supervisor or permitting her to take medical leave. The company allowed 18 weeks of intermittent leave, but denied the request for a new supervisor. Tinsley ultimately resigned, and then sued, claiming the employer's refusal to allow her to work under a different supervisor was an unlawful failure to accommodate under the ADA.
Tinsley worked for Caterpillar Financial for almost 20 years, starting as a paralegal but eventually moving to the business side of the company. In 2013, she was promoted to the position of Business Analyst III. She worked on a team of employees and reported to a team leader. It was not the team leader, but the team leader's supervisor, Paul Kaikaris, that was apparently the cause of Tinley's stress.
The problems started when Tinsley asked to be removed from her team because the combination of her family and work responsibilities caused more stress than she could handle. Kaikaris responded by offering to work with Tinley to reduce her workload by reassigning some projects. However, about two months later, Kaikaris expressed concerning about Tinsley's work performance. In her performance review Tinley received a "did not meet expectations" rating, which resulted in a performance improvement plan. Tinsley refused to sign the PIP because she disagreed with it and believed it was not accurate. She claimed Kaikaris provided a poor rating because she had complained to him that she did not approve of her co-workers bouncing stress balls off the ground.
Tinsley then began a practice of submitting doctor's notes and successive requests for medical leave based upon "mental and emotional duress brought on by an over-excessive workload, unrealistic deadlines, a hostile work environment, and a manager's reckless indifference to my mental and emotional well-being." After another five weeks of medical leave, Tinsley's doctor allowed her to return to work with no restrictions. But, the doctor qualified the "no restrictions" with a strong recommendation that she work in a different environment and under a different manager. Otherwise, the doctor warned, Tinsley would be at "significantly increased risk for another exacerbation [of PTSD]."
Tinsley continued to request additional medical leave and a new supervisor. Eventually, the employer had enough and told Tinsley it could no longer accommodate her requests for leave, and did not believe her request for a transfer to a different supervisor was necessary or a reasonable accommodation. She resigned and filed a charge of discrimination, which ended up in a lawsuit.
The key question the Court of Appeals addressed was whether Tinsley's PTSD that was triggered by work stress qualified as a "disability" under the law. To qualify as a disability, the condition must substantially limit a major life activity. In Tinsley's case, she claimed her PTSD impacted only the major life activity of working. Even with the 2009 ADA Amendments that made it easier to prove a condition is a disability, the court ruled Tinsley could not prove her PTSD substantially limited her in the major life activity of working. The evidence showed that Tinsley did not have a limitation on performing a class of jobs or a broad range of jobs. Rather, she could not work in her particular job, under her particular supervisor, because the supervisor's management style triggered the PTSD. Tinsley admitted she had no problem with her work generally, just under the particular manager.
Tinsley provides some important lessons to employers responding to accommodation requests from employees suffering from a stress related condition:
First, you should presume at the outset, as Caterpillar did in this case, that the employee's condition qualifies as a disability, and work with the employee to find a reasonable accommodation. Even if it is unclear whether accommodation is legally required, making the effort is the right thing to do. Plus, if the situation ends up in a legal claim, such efforts will always make the claim more defensible.
Second, it is important to remember the Tinsley court ruled on the basis that the employee's PTSD was not a disability. The court did not address whether assigning the employee to a different supervisor would have been a reasonable accommodation. So, employers should be careful about relying on this case to conclude that such a reassignment would never be reasonable. It may not be, and with the facts of the Tinsley case, probably would have not have been. But, it is a question that should be carefully considered based upon the employer's circumstances, the job in question, and the medical evidence.
On the other hand, it may very well be unreasonable to move the employee to a different department or assign a different supervisor if the cause of the employee's stress is a specific person or a situation associated with a particular job. But, even when you are right to refuse the requested accommodation, seldom does it go well with the employee thereafter. These employees present significant litigation risks. If the refusal to accommodate means the employee resigns or is terminated, it is never a bad idea to offer severance in exchange for a release.
New Jersey Court Rules Employee Fired for Using Medical Marijuana May Sue for Disability Discrimination; What Does this Mean for Iowa Employers?
Posted in Disability Discrimination, Employee Privacy, Human Resources Compliance, Litigation and Trials
Iowa employers should pay attention to a recent ruling from a New Jersey Appellate Court , Wild v. Carriage Funeral Holdings, Inc. 3/27/2019. The Wild opinion is the most recent case addressing the rights of employees who use medical marijuana. Although the Court was addressing the question under New Jersey law, an Iowa court may it find it persuasive when the issue comes up here, because of important similarities between the Iowa and New Jersey medical marijuana laws.
The New Jersey Compassionate Use Medical Marijuana Act, like the Iowa medical marijuana law, allows a person to use medical marijuana to treat certain debilitating medical conditions. Like the Iowa law, the New Jersey law requires a physician to certify a person has a medical condition for which medical marijuana use is allowed. Most important, similar to the Iowa statute, the New Jersey medical marijuana law provides no employment protections for medical marijuana users. In fact, the New Jersey law states that "nothing" in the statute requires an employer to accommodate a medical marijuana user.
The plaintiff in the New Jersey case was employed as a funeral director for a chain of funeral homes. In 2015 he was diagnosed with cancer. His physician provided a certification that allowed the plaintiff to use medical marijuana under the Compassionate Use Act.
In May 2016, the plaintiff was involved in a car accident while driving for his job. He was taken to the emergency room by ambulance, where he told the treating physician he was a medical marijuana user. The opinion does not say why the plaintiff disclosed this information, but presumably it was because New Jersey law allows employers to conduct post-accident drug testing if there is a reasonable suspicion drug or alcohol use was a cause of the accident. But, in this case, the ER physician did not order a drug test because he did not believe the plaintiff was impaired at the time of the accident.
After the plaintiff was released from the ER, his father told the employer that plaintiff was a licensed medical marijuana user. Again, it's not entirely clear from the ruling why this disclosure occurred, but it was probably because the employee expected to be drug tested when he returned to work. Indeed, that is exactly what the employer required.
So, the plaintiff went to an urgent care clinic the same evening to be tested. The clinic doctor told plaintiff the drug test would be positive because of marijuana as well as prescription pain killers; the doctor also expressed that testing under these circumstances was illegal, and he refused to draw blood for the test. But, for some reason, the clinic still administered a urine and breathalyzer test. No one told the plaintiff the results of these tests, and there was no evidence any test results were given to the employer.
Several days later, the plaintiff's boss told him "corporate" was unable to handle his marijuana use, and he was being terminated because "they found drugs in your system." However, in the official termination letter from the corporate office, it stated plaintiff was terminated not because of his drug use, but because he failed to comply with a company policy that required employees to disclose use of medication that may adversely affect their ability to perform assigned job duties safely.
The plaintiff sued under the New Jersey law that prohibits discrimination on the basis of disability. He claimed the funeral home could not lawfully terminate his employment, despite any drug test results, because his cancer was a qualifying disability, and he was legally treating the cancer in accordance with his physician's directions and in compliance with the Compassionate Use Act. The trial court dismissed the lawsuit because the Compassionate Use Act does not contain employment-related protections for licensed users of medical marijuana, and, in accepting the plaintiff's own allegations as true, the termination occurred because of a positive drug test and in violation of the funeral home's drug use policy.
The Court of Appeals reversed the trial court, and reinstated the lawsuit. The Court was not persuaded the lack of express employment protections in the law carried the day. The language of the statute states, "[n]othing in this act shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace." What that means, the Court reasoned, is that the Compassionate Use Act "intended to cause no impact on existing employment rights…it neither created new employment rights nor destroyed existing employment rights." Just as the law imposes no burden on employers, the Court concluded,"it negates no rights or claims available to plaintiff that emanate from the [Law against Discrimination]."
In short, the medical marijuana law did not change the existing law that bars disability discrimination against employees. The plaintiff alleged he suffered from cancer, and for that reason, used medical marijuana. The Court concluded the plaintiff should have the opportunity to prove he was fired because of his cancer, and that the employer's stated reliance on his drug use was a pretext for disability discrimination.
In another post on medical marijuana, we warned that this very situation could occur under Iowa's medical marijuana law. Even though a confirmed test for marijuana does not itself qualify as a disability, the underlying medical condition for which medical marijuana is used very well might. The employer's problem in Wild is that it appeared to act too fast based upon partial information. Employers should move slowly and seek advice from counsel when they know an employee with a positive marijuana test has certification to use medical marijuana.
Employee's Bad Behavior May Be Legally Protected
By Patrick Smith on March 28, 2019
Posted in Human Resources Compliance, Labor, Litigation and Trials
Because so few employees are represented by a union (just over 6 percent of private sector employees in the U.S.) most employers don't have to deal with the National Labor Relations Act (NLRA) on a regular basis, if ever. But, it's important to remember that employees who are not represented by unions also have NLRA rights, and most employers are also subject to the law. An employer in New York recently found that out the hard way when an employee it terminated for misconduct was reinstated by the National Labor Relations Board, a decision which was then affirmed by an appellate court.
The case is Meyer Tool, Inc. v. NLRB (2nd Cir., 2/26/2019). The events leading to the employee termination began at a department meeting, where a manager announced the company was creating a new night-shift supervisor position. The reason for the new position was that employees on the night shift were underperforming and took excessive breaks. Three employees questioned the need for a night supervisor and the qualifications for the position. One of the questioning employees, Cannon-El, also raised a question about the poor air quality in the plant, seemingly justifying the frequent breaks of night shift employees. To address the employee complaints, the manager running the meeting summoned a company vice-president. When the vice-president arrived, he apparently got into an argument with Cannon-El. The court stated he "began to yell at Cannon-EL while standing over him, 'their faces inches apart.'"
The next day, Cannon-El and the other two employees who raised concerns about the new night supervisor position went to HR to complain about the vice-president's conduct the night before. As he was giving his written statement to the HR representative, Cannon-El got into a "heated verbal exchange" with her. The HR representative said she would give Cannon-El "to the count of three" to leave the premises, or she would call the police. The HR representative said "one", and Cannon-El finished by saying "two, three," and "I have done nothing wrong." The police were called; Cannon El briefly remained in the hallway near the HR Department and then went to the lobby to wait for the police. Meyer tool suspended and later terminated Cannon-El for refusing to immediately leave the premises when asked.
Cannon-El filed an unfair labor practice charge with the National Labor Relations Board arising out of his suspension and termination. The NLRB ruled Cannon-El was terminated because he engaged in protected, concerned activity, and ordered him to be reinstated, with back pay.
On appeal to the Second Circuit, Meyer Tool argued that Cannon-El had not engaged in concerted activity because he was pursuing his individual, personal concerns when he went to HR to complain about the vice-president's yelling at him the night before. The court disagreed, because the other two employees who complained to HR at the same time raised similar concerns, transforming a single employee's complaint into group activity.
Meyer Tool also contended that, even if Cannon-El engaged in concerted activity, he lost his legal protection by acting in an intimidating and abusive way to the HR representative. Although there are circumstances in which an abusive employee forfeits protection for what is otherwise concerted activity, the court ruled that, in this case, Cannon-El was not sufficiently abusive. His conversation with the HR representative, "while heated, did not disrupt any other employee's work or even cause those nearby to close their office doors." The argument involved raised voices, but Cannon-El did not use obscenities, engage in physically intimidating conduct, make threats, or disturb customers.
This type of ruling can be very frustrating for employers. Most agree that employers should not be expected tolerate insubordination, arguments, and verbal abuse from employees. The takeaway from this decision, however, is not that employers have to tolerate such conduct. Rather, it is important to understand the big picture of what happened before making the decision to terminate. There are two important facts that probably led to the result here. First, Cannon-El was not the only employee involved; the two other employees who participated in complaining is what made the activity "concerted." Second, although not a stated basis for the decision, the implication of the court's opinion is that the company may bear some of the fault because of the bad-conduct of the vice-president yelling at Cannon-El may have contributed to the conditions that led to Cannon-El losing his temper the next day. Even if you think the law is on your side, bad facts make for bad rulings. Terminating an employee for abusive behavior while tolerating similar behavior in management will sometimes cause a judge or jury to give the employee the benefit of the doubt.
What is the Department of Labor Trying to Accomplish with Its Recent Opinion Letter on FMLA Leave?
Posted in FMLA, Human Resources Compliance, Labor
On March 14, the Department of Labor issued an opinion letter to answer the following two questions about FMLA leave: 1) may an employer delay designating leave as FMLA covered, even if the leave is for a FMLA qualifying reason, to allow the employee to exhaust paid leave first; 2) may an employer expand an employee's FMLA leave beyond the statutory 12 week entitlement. In the DOL's opinion, the answer to both questions is "no."
The situation the opinion letter addresses is quite common: an employee wants to use available paid leave before starting the clock ticking on the 12 weeks of FMLA leave. By delaying the designation of the leave as FMLA covered until after the paid leave is exhausted, the employer has effectively granted the employee additional weeks of protected leave.
I have always thought the FMLA regulations on this point are fairly clear: the employer is required to designate FMLA qualifying leave as covered by FMLA; to the extent an employee has accrued paid time off, the employer can require it to run concurrently with FMLA. This rule is a great benefit to employers in managing employee leave by ensuring that the FMLA job protected leave lasts no longer than 12 weeks, regardless of how much paid time off the employee has accrued.
Despite the seeming clarity of the regulation, the DOL issued two prior opinion letters (in 1995 and 1996), that took the position that an employer had the right, but was not required, to designate FMLA qualifying leave as FMLA covered (so long as it did not deny employees their rights under FMLA). The Department reasoned that this permissive approach was consistent with FMLA's provision that allows employers to extend more leave than FMLA requires. However, in the March 14 letter, the DOL emphasized that the designation of FMLA qualifying leave as covered leave is mandatory, and the maximum number of weeks of FMLA leave to which an employee is entitled in a year is 12 (or 26 is the case of military caregiver leave). An employer remains free to grant leave beyond the 12 week requirement, but it cannot be considered FMLA leave. The March 14 letter expressly withdrew these prior opinion letters.
DOL may have taken a more permissive approach in the past because the practice of allowing an employee to use paid leave before starting the FMLA clock typically causes no harm to the employee. In fact, it is usually a great benefit to the employee who gets the extra leave. From that perspective, it's difficult to discern what harm the Department is trying to remedy with this new opinion.
The answer may be a 2014 ruling on this subject from the Ninth Circuit, Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1246, 1244 (9th Cir. 2014). The plaintiff in that case, Maria Escriba, sought two weeks of leave to care for her ill father in Guatamala. She informed her supervisors of the FMLA qualifying reason for the leave, but expressly requested the time be deemed as vacation leave, so she could save FMLA leave for future use. When Escriba failed to return to work after two weeks, she was terminated. Escriba filed suit, alleging her termination interfered with her FMLA rights. She claimed, based upon the regulations, the employer was required to designate her leave as FMLA leave. Escriba argued she was not allowed to waive her FMLA rights by electing to use vacation leave before FMLA leave commenced, despite the fact that is what she specifically requested.
On appeal, the Ninth Circuit rejected Escriba's arguments, ruling that the two weeks of vacation leave she requested were not FMLA protected, even though she was on leave for an FMLA qualifying reason. The court held that, "an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection." Because Escriba's two weeks of leave was not FMLA protected, the court concluded the employer did not interfere with her FMLA rights by terminating her employment.
Escriba was a win for that particular employer, but ironically was a loss for employers generally. What was previously a employer granted discretionary benefit (allowing exhaustion of paid leave before starting the FMLA) was transformed into an employee right (entitlement to exhaust paid leave before starting FMLA). Once the employee has the right to determine when the FMLA clock starts, the employee potentially gains the opportunity of extra leave beyond the 12 week statutory entitlement. The employer's ability to effectively manage FMLA leave, granted to it by regulation, was out the window.
The DOL specifically mentioned in footnote 3 of the March 14 letter its disagreement with the holding Escriba. While the Department's opinion letter is not binding authority, courts often defer to the agency's interpretation of the law. Perhaps the Department issued this letter as part of an effort to confine to the Ninth Circuit the transformation of an employer managed benefit into an employee entitlement.
What is the takeaway for employers? First, if you want to protect your prerogative to manage FMLA leave, then you need to exercise it by following the DOL's guidance in the March 14 opinion letter; namely, you should always designate as FMLA covered leave any leave that is FMLA qualifying. If the employee has available paid leave, the two can run concurrently. If you want to be more generous, make it clear that additional leave is available only after FMLA leave has been exhausted, and does not necessarily come with FMLA protected rights. Second, it may help employers reinforce the rule to supervisors and HR personnel who may not recognize the employee does not have a choice in determining when the designation of FMLA covered leave occurs. Finally, while there is no ironclad guarantee that other circuits will follow the DOL's opinion letter, relying on a DOL Guidance supports an employer's good faith defense it was trying to comply with the law, even if a court later finds the conduct to violate FMLA.
Will the DOL's Renewed Effort to Increase the Minimum Salary for Exempt Employees Fare Any Better than the Last Time it Tried?
Posted in Human Resources Compliance, Wage and Hour
In a widely publicized move, the U.S. Department of Labor on March 7 proposed an update to the Fair Labor Standards Act (FLSA) regulations governing employees who are exempt from overtime. The most significant change in the proposal is to raise the minimum salary an employee must earn to qualify as exempt from overtime. The existing minimum salary is $455 per week; the new proposed minimum salary is $679 per week, a 49 percent increase. An employee must also satisfy one of the "duties" tests to be exempt from overtime (e.g., executive, administrative, professional), but the proposed rule does not change any of those tests.
Most employers probably remember, with some chagrin, the DOL's 2016 rule that more than doubled the salary basis to $913 per week. Businesses were scrambling to adjust their job descriptions and payrolls in anticipation of the new rule's December 1, 2016 effective date. Then, eight days before, on November 22, 2016, a district court in Texas issued a surprise nationwide injunction preventing it from going into effect. For a refresher on the injunction and its aftermath, see our posts here, here, and here.
On August 21, 2017, the same federal judge, Amos Mazzant, issued a final ruling invalidating the $913 per week salary basis. Surprising to some, the Department, now with a Trump appointed Secretary, appealed the judge's final ruling to the U.S. Court of Appeals for the Fifth Circuit. But, the Court of Appeals agreed to hold the appeal in abeyance while the DOL undertook further rulemaking to consider adjusting the salary basis to something lower than $913 per week in the 2016 Rule, but more than the $455 per week that was previously in effect (and remains in effect today). Perhaps not coincidentally, the proposed $679 per week proposed salary basis is almost exactly in the middle of $455 and $913.
So, what happens next? On the rulemaking side, the public will have 60 days to comment on the proposed rule. The Department will then consider those comments, and issue a final rule, probably sometime in 2020. More importantly though, what will happen if, as is likely, the DOL's final rule maintains the $679 per week salary basis? If challenged, is a court more likely to find a 49 percent increase is valid because it is less of an increase than in the 2016 rule? Does the validity of the DOL's rule depend upon something so arbitrary as a federal judge's opinion about what persons in certain occupations should earn?
Many employers and business advocacy groups agree $455 is probably too low a salary basis given inflation that has occurred since it was established. They can probably also live with the proposed $679 per week (indeed, this salary level was chosen after considerable input from interested parties). But, despite the DOL's effort to appease all interested stakeholders, there is a good chance some interest group will file suit to challenge the new rule. The issue is not so much the amount of the salary threshold, but whether the DOL has the right in the first place to use a minimum salary as part of the test to determine whether an employee is exempt from overtime. Commenting on Judge Mazzant's ruling on the Obama era rule, I said in a September 12, 2017 post:
In the ruling on the preliminary injunction, Judge Mazzant questioned whether the DOL has the legal authority to establish a salary basis test. He reasoned the FLSA itself defines Executive, Administrative, and Professional exemptions only with respect to duties, and says nothing about the employee's salary. Therefore, he ruled, Congress did not intend that the amount of an employee's salary be a factor in determining whether the employee was exempt; only the duties are relevant. By including a salary basis test in addition to a duties test, Judge Mazzant concluded, at least preliminarily, that the DOL likely exceeded its statutory authority.
It is important to note that, in the final ruling, Judge Mazzant backed away from his initial opinion that questioned the DOL's authority to use the salary test at all. Instead, he concluded merely that $913 per week too high because it likely would have the effect in many cases of eclipsing the duties test, essentially rendering the duties irrelevant. In other words, the salary was so high that many employees who satisfied the duties test for one of the executive, administrative, or professional exemptions would still be classified as non-exempt because their salary was less than $913 per week.
In addition to questioning the legal basis for the minimum salary, there are practical reasons the salary basis test should be abandoned. First, the salary basis applies to the entire country, and does not take into account regional and local economic conditions. A $679 per week salary means something different in Des Moines than it does in San Francisco or New York. Second, in the modern era the salary basis has become a political weapon used to benefit favored constituencies, depending upon the party in power. Third, the proposed rule contains a provision that allows the Department to change the salary basis every three years. But, the rulemaking process is so slow that it takes at least two years for a rule to get from the proposal to the final stage. Moreover, once the new salary basis is in place, it could once again be subject to legal challenge. Lawyers and lobbyists love this process, but whether it actually benefits ordinary employees is questionable. Finally, lawyer and blogger Jon Hyman makes an excellent point that I have not seen elsewhere, but is important: that is, the salary basis test simply does not matter. If an employer pays someone less than $679 per week, that person is probably not the sort of employee who exercises the type of discretion and judgment required to satisfy the duties part of the test. It is the duties test that employers should really be worried about.
So what's the takeaway from all this? Employers, get ready for the new salary basis in 2020, but don't be surprised if it never goes into effect.
Employers in Long Term Care Industry Face Enhanced Risk of Employee Harassment Claims Based upon Conduct of Patients
Posted in harassment, Human Resources Compliance, Litigation and Trials, Sex Discrimination, Title VII
Claims of sexual harassment typically involve the behavior of fellow employees. But, an employer's potential liability for sexual harassment also extends to conduct by a non-employee, such as a customer, client, or patient, that creates a hostile work environment.
The principle of employer liability for harassment by a non-employee third-party presents particular challenges to the long term care industry. The problem occurs when the harasser is a resident or patient with dementia or other diminished mental capacity. Physical violence or sexually inappropriate is sometimes associated with Alzheimer's or other forms of dementia. In many cases, courts have recognized behavior that might qualify as sexual harassment in other contexts does not create a hostile work environment for care facility employees directly caring for such patients, because the employee should reasonably expect it to occur. The unique circumstances involved in caring for dementia patients essentially makes tolerating at least a certain level of bad behavior part of the job.
However, a recent case from the Fifth Circuit (covering Texas, Louisiana, and Mississippi) shows that long term care employers do not always get the benefit of the doubt when it comes to a dementia patient's alleged sexual harassment of a care center employee. The case is Gardner v. CLC of Pascagoula, LLC, (5th Cir. 2-7-2019). The plaintiff in Gardner was a Certified Nursing Assistant (CNA) at an assisted living facility. She was experienced in working with mentally disabled patients, and was trained in de-escalation and defense tactics for aggressive patients. Gardner often worked with patients who wither "either physically combative or sexually aggressive."
The harasser was an elderly resident who lived at the facility for eight years. Gardner worked with him for three of those years. The resident had a reputation for groping female employees and becoming physically aggressive when reprimanded. He was diagnosed with dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson's Disease. He was reported to have a "long history" of violent and sexual behavior toward both patients and staff.
Gardner alleged she experienced on a daily basis the resident physically grabbing her and repeatedly making sexual comments and requests. She documented the resident's behavior in his chart and routinely complained to supervisors about it. The resident was at one time transferred to a different wing of the facility because of his behavior, but the employer refused the Gardner's request to be reassigned so she would not have to care for him. When she attempted to discuss her concerns about the resident's behavior with her supervisor, there was evidence Gardner's supervisor laughed and told her to "put [her] big girl panties on and go back to work."
The facility terminated Gardner after an incident that occurred while she was helping the resident in question attend a therapy session. As Gardner was trying to help the resident out of bed, he tried to grope her, then punched and pushed her. Although Gardner disputed it, the facility claimed she swung her fist over the resident's head and her arm brushed the top of his head in the process. As she left the resident's room Gardner uttered an expletive about refusing to do anything else for the resident. Gardner sustained serious enough injuries in the incident that she went to the ER and ended up missing three months of work. Shortly after returning from leave, the facility fired her for insubordination (refusing to work with the resident), attacking the resident, and violating his rights by swearing in front of him.
The trial court dismissed Gardner's hostile work environment claims. The court reasoned that the resident's "harassing comments and attempts to grope and hit are [not] beyond what a person in Gardner's position should expect of patients in a nursing home." However, the Court of Appeals reversed the grant of summary judgment, concluding that "the evidence of persistent and often physical harassment…is enough to allow a jury to decide whether a reasonable caregiver on the receiving end…would have viewed it as sufficiently severe or pervasive, even considering the medical condition of the harasser." The facts significant to the court of appeals seemed to be the frequency of the resident's conduct (daily), its severity (physical sexual assault and violent outbursts), and its impact on Gardner's employment (she was on medical leave for three months because of the injuries she sustained in the altercation). It probably didn't help that a supervisor was dismissive of Gardner's concerns.
While the facts in Gardner may show extreme and unusual patient behavior, it nonetheless establishes a troubling precedent for long term care facilities where dementia patients live. Unlike an employee who can be abruptly terminated, residents in care facilities, particularly those receiving Medicaid benefits, have rights that prevent them from being immediately discharged. Sometimes such residents have the right to hearing before an administrative law judge, who may or may not agree the patient can be evicted, or who may delay the eviction. In the meantime, these residents must be cared for. Depending upon the size of the facility and the number of care giving employees, simply reassigning an employee away from the difficult resident on a permanent basis could be quite difficult. Long term care facilities will have to be more attentive than ever to balancing the rights of caregiving employees to be free from harassing conduct while also providing adequate care for difficult residents whose bad behavior is often the result of their medical condition.
For an industry that already faces a challenging regulatory and legal environment, the prospect of more sexual harassment jury trials arising out of the behavior of dementia patients is not a welcome development.
Eighth Circuit Case Provides Guidance on How to Handle the Vexing Problem of Extended Medical Leave as a Reasonable Accommodation
By Patrick Smith on February 15, 2019
Posted in Disability Discrimination, Eighth Circuit, FMLA, Human Resources Compliance
How much extra leave is reasonable for an employee who has exhausted FMLA but is not yet capable of returning to work? Does an employer have to keep the absent employee's job open? What medical evidence is needed? How much interactive dialogue is enough? What about an employee is who is unreasonable and/or demanding?
A recent opinion from the Eighth Circuit provides helpful guidance about these and other problems employers face when deciding whether extended medical leave is a reasonable accommodation for an employee with a serious medical condition who is not yet capable of returning to work. See Brunckhorst v. City of Oak Park Heights, (8th Cir. 2/4/2019).
Continue Reading Eighth Circuit Case Provides Guidance on How to Handle the Vexing Problem of Extended Medical Leave as a Reasonable Accommodation


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LA-ICP-MS trace-element study of pyrite from massive sulphide deposits of the Bathurst Mining Camp, Canada: Determination of volatile trace-element contents in pyrite and its application as a vectoring tool for the exploration of VMS deposits
Soltani Dehnavi, A; Lentz, D R; McFarlane, C R M; McClenaghan, S H
L'Association géologique du Canada-L'Association minéralogique du Canada, Réunion annuelle conjointe, Recueil des résumés vol. 37, 2014 p. 260
Online - En ligne
Séries alt.
Secteur des sciences de la Terre, Contribution externe 20140518
GAC-MAC
GAC-MAC 2014; Joint annual meeting of Geological Association of Canada and Mineralogical Association of Canada; Fredericton; CA; mai 21-23, 2014
publication en série
21O/01; 21O/02SE; 21O/02NE; 21O/07SE; 21O/07NE; 21O/08; 21O/09; 21O/10SE; 21O/10NE; 21P/04; 21P/05; 21P/12
gîtes volcanogènes; sulfures; gîtes sulfureux; analyses des éléments en trace; induction électromagnétique; analyse par spectromètre de masse; méthodes analytiques; Camp minier de Bathurst; géochimie; minéralogie
Étude des gîtes de sulfures massifs volcaniques, Initiative géoscientifique ciblée (IGC-4)
Pyrite is a ubiquitous refractory sulphide mineral in massive sulphide deposits. It typically hosts minor elements, such as Cu, Ni, As, and Co, as well as many other trace elements, such as Au, Ag, Pb, Zn, Sb, Se, Te, Hg, Tl, and Bi. Pyrite can, therefore, be treated as an effective scavenger of metals from ore-forming fluids. In this study, texturally-controlled in situ laser ablation-inductively coupled plasma-mass spectrometry (LA-ICP-MS) is used to measure volatile trace-elements (As, Cd, Hg, In, Sb, Tl), in pyrite from the massive sulphide deposits of the Bathurst Mining Camp (BMC), eastern Canada. Texturally, pyrite can be categorized as pre-deformational (primary and pseudo-primary), syn-deformational (ductile and brittle), and post-deformational (late-recrystallization and annealing textures) in nature. LA-ICP-MS results indicate that all forms of pyrite are arsenian in nature, ranging from 2.2 ppm to 2.58%. The arsenian pyrite also contains elevated concentrations of Sb, Tl, Au, and Hg, whereas In and Cd were not found in significant concentrations within pyrite forms. The LA-ICP-MS data, coupled with petrographic (textural) observations, suggests a relationship between the textural setting and grain size of pyrite and their trace-element composition. The enrichment of volatile trace-elements is typically linked to pre-deformational pyrite, which are anhedral, colloform, spongy (corroded-diseased cores), and mostly fine grained (<200 ?m). This suggests that metamorphism and syn-deformational processes have not had a major effect on the redistribution of these elements. Alternatively, some deposits with primary enrichment in Au, Sb, Hg, and Tl, such as Louvicourt, also have high volatile trace element contents in late recrystallized pyrite forms. Consequently, the refractory nature of pyrite and its ability to scavenge trace elements may provide a record of both the primary style of mineralization, as well as secondary recrystallization, deciphering the metamorphic and deformational evolution of massive sulphide deposits of the BMC. Moreover, this powerful technique can reveal whether these trace elements are accommodated in the pyrite structure by lattice substitution and (or) by nano-inclusions of other minerals. Data for single-spot LA-ICP-MS analyses of pyrite show that elevated contents of As, Sb, Tl, and Hg in pyrite occur via lattice substitution, supported by the absence of spikes in the laser-ablation time-series data. Finally, vertical metal zonation exists in the deposits studied to date and indicate that, As, Sb, Tl, and Hg are systematically enriched toward the top of the massive sulphide intervals. Hence, based on the distribution of volatile trace-elements in texturally distinct pyrite, the potential of developing sulphide mineral composition (pyrite) as an exploration vectoring tool is proposed.

redpajama_set_name: RedPajamaCommonCrawl


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GUILTY PLEAS ENTERED IN TWO SEPARATE MORTGAGE FRAUD CASES
Guilty Pleas Entered in 2 Separate Mortgage Fraud Cases
Michelle Austin-Wilks, 38, Parkland, Florida, pled guilty to conspiracy to commit wire fraud, in violation of Title 18, United States Code, Section 1349, and four counts of wire fraud, in violation of Title 18, United States Code, Section 1343, for her participation in two separate mortgage fraud schemes.
Austin-Wilks faces up to twenty years' imprisonment on the conspiracy count and up to thirty years' imprisonment on each wire fraud count. Sentencing has been scheduled for June 15, 2012 at 9 a.m. before U.S. District Judge James I. Cohn.
In U.S. v. Ghaith Al Nahar et. al, Case No. 11-60183-CR-COHN, from February to November 2007, Ghaith Al Nahar, 40, formerly of Boynton Beach, identified residential properties in Palm Beach county and paid individuals to act as straw buyers for the properties. These straw buyers submitted loan applications and supporting documents containing false information to various mortgage lenders across the United States.
After the lenders approved the loans based on the false information provided, defendant Austin-Wilks, who was the President and Director of Direct Title & Escrow Services, Inc., prepared HUD-1 Settlement Statements that contained false information. For example, the forms falsely represented to the lenders that the straw buyers were bringing their own money to closing. Austin-Wilks also falsely represented to the lenders that she had disbursed the loan proceeds in accordance with the lenders' instructions.
Instead, Austin-Wilks made unauthorized disbursements from the loan proceeds to one of her companies as "processing fees." Based on these false statements and documents, the mortgage lenders issued more than $9 million in loans.
Ghaith Al Nahar pled guilty and was sentenced on January 27, 2012 to 63 months' imprisonment, three years of supervised release, and ordered to pay $1,863,109.30 in restitution by U.S. District Judge James I. Cohn. An employee at Al Nahar's office, Romy Defay, 28, West Palm Beach, Florida, also pled guilty and was sentenced on January 27, 2012 to 33 months' imprisonment, three years of supervised release and was ordered to pay $441,747 in restitution by Judge Cohn.
The straw buyers, Jeffery Gilbert and Philip Jay Newman, pled guilty. Gilbert was sentenced to three years' probation and ordered to pay $441,747 in restitution. Newman was sentenced to 21 months' imprisonment, three years of supervised release and ordered to pay $662,051.42 in restitution.
In the second case in Broward County, Case No. 12-60054-CR-COHN, from June to October 2007, defendant Austin-Wilks and others, through Direct Title & Escrow Services, Inc., engaged in a scheme to enrich themselves by fraudulently buying and selling residential real estate property in Broward county through straw buyers. These straw buyers obtained high value mortgages based on mortgage loan applications and closing statements that contained false information.
After the lenders approved the loans based on the false information on the loan applications, Austin-Wilks prepared HUD-1 Settlement Statements that, among other things, falsely represented to the lenders that the straw buyers were bringing their own money to closing. Austin-Wilks also created and submitted duplicate HUD-1 Settlement Statements for the same real estate transaction to the mortgage lenders, reflecting different sales prices to the seller and to the lender. The lender's version reflected a significantly higher purchase price than the seller's version of the HUD-1 Settlement Statement.
After closing, the lenders wired a total of approximately $3 million in mortgage loan proceeds into a bank account controlled by Austin-Wilks.
Thereafter, Austin-Wilks made numerous wire transfers, including a transfer of $68,562 and $382,000, respectively, to a mortgage broker and a straw buyer for their assistance in the mortgage fraud scheme. The mortgage broker, Jinnie Mathurin, pled guilty to one count of wire fraud and was sentenced on March 7, 2012 to one year and one day of imprisonment, three years of supervised release and ordered to pay $1.17 million in restitution by U.S. District Judge Donald M. Middlebrooks. The straw buyer, Guhier Florvilus, also pled guilty to one count of wire fraud and is scheduled to be sentenced on May 17, 2012 before U.S. District Judge Daniel T.K. Hurley.
In addition to these wire transactions, Austin-Wilks was also convicted of two additional wire fraud transactions for two wires sent by national mortgage lenders.
Wifredo A. Ferrer, United States Attorney for the Southern District of Florida, John V. Gillies, Special Agent in Charge, Federal Bureau of Investigation (FBI), Miami Field Office, Paula Reid, Special Agent in Charge, United States Secret Service, Miami Field Office, and Linda Charity, Interim Commissioner, State of Florida's Office of Financial Regulation, announced the guilty plea.
Mr. Ferrer commended the investigative efforts of the FBI, the U.S. Secret Service, and Florida's Office of Financial Regulation. Mr. Ferrer noted the assistance of the U.S. Marshal's Service for their substantial efforts in locating defendant Austin-Wilks in Jamaica and returning her to United States. These cases were prosecuted by Assistant U.S. Attorneys Randy Katz and Armando Rosquete.
0 comments • David Saks • April 11 2012 12:50PM
Guilty Pleas Entered in 2 Separate Mortgage Fraud Cases Michelle Austin-Wilks 38, Parkland, Florida, pled guilty to conspiracy to commit wire fraud, in violation of Title 18, United States Code, Section 1349, and four counts of wire fraud,… more
REAL ESTATE BROKER AND SALESMAN INDICTED FOR APPRAISAL FRAUD AND…
2 Indicted for Appraisal Fraud and Submitting False Docs to Lenders Ronald L. Byrd 63, Dayton, Ohio, a real estate broker employed by Envestmint Realty, Inc. Huber Heights, Ohio, and Scott W. Brauer 34, Cincinnati, Ohio, a mortgage loan… more
FIRE IN MARIJUANA GROW HOUSE LEADS TO MORTGAGE FRAUD CHARGES
Fire From Marijuana Grow House Leads to Mortgage Fraud Charges Tony Lieng aka Ung A. Lieng 38; Lynn Truong aka Linh Thi Truong 39, both of Clovis, California; and Jenny Chi Ha aka Phuong A. Ha 44, Fresno, California, pleaded guilty… more
LEADER OF $66 MILLION MORTGAGE FRAUD SCHEME PLEADS GUILTY
Leader of $66 Million Mortgage Fraud Scheme Pleads Guilty in Manhattan Federal Court U. S. Attorney's Office April 09, 2012 Southern District of New York (212) 637-2600 &… more
MORTGAGE RESCUE OWNER PLEADS GUILTY TO FRAUD
Mortgage Rescue Business Owner Pleads Guilty to Fraud U. S. Attorney's Office April 10, 2012 Eastern District of Virginia (703) 299-3700 … more
WOMAN SENTENCED TO TWO YEARS IN PRISON FOR MORTGAGE FRAUD
Plainfield Woman Involved in Mortgage Fraud Scheme Sentenced to Two Years in Prison U. S. Attorney's Office April 10, 2012 District of Connecticut (203) 821-3700 &… more
#1610 Credit report fees, loan origination fees and appraisal fees are all costs that show up in the loan's APR. Is this fact true or false Take your time. The solution… more
#1609 When a portion of a borrower's monthly mortgage payment is held to be applied later towards property taxes and insurance the money will be held by a trustee. Is this true or false.. more
#1608 If the lender agrees to guarantee a specific interest rate for a specific period of time this is known as discounting the float Is this true or false Please take… more
#1607 Fees that normally pay the overhead costs of a lender are the loan discount fees associated with the loan. Is this fact true or false Take your time. The soultion is… more


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Q: Google Cloud Print - Python Code Sample - GaiaLogin returns None Anyone got it to work?
https://code.google.com/intl/de-DE/apis/cloudprint/docs/pythonCode.html
GaiaLogin returns None :(

A: I too discovered that the Python sample code is broken. I've written a library (cloudprinting) to simplify using Google Cloud Print with Python.

redpajama_set_name: RedPajamaStackExchange


text:
Хитра () — коммуна в губернии Сёр-Трёнделаг в Норвегии. Административный центр коммуны — город Филлан. Официальный язык коммуны — нейтральный. Население коммуны на 2007 год составляло 4132 чел. Площадь коммуны Хитра — 685,43 км², код-идентификатор — 1617.

История населения коммуны
Население коммуны за последние 60 лет.

Примечания

См. также
 Коммуны Норвегии

Ссылки

 Статистика коммуны из бюро статистики Норвегии

redpajama_set_name: RedPajamaWikipedia


text:
Calasparra è un comune spagnolo di 10.759 abitanti situato nella comunità autonoma di Murcia.

Altri progetti

Collegamenti esterni

Comuni della provincia di Murcia


text:
Become a Winner at Blackjack
If you're like most people, you're probably behind for your lifetime at blackjack. "Isn't everybody?" you ask. No -- not everybody. Technically speaking, the house doesn't beat you at blackjack. You beat yourself with the playing and betting decisions you make.
Let's change things right now by resolving to upgrade your blackjack rating from that of "also ran" to "leading contender." To make that happen, though, you'll have to let go of those self-destructive, mythical beliefs you cling to so desperately. I'll start naming typical blackjack faults. Every one will get in the way of winning if you don't denounce them for what they are and move on. So it's up to you. You can open your mind and grow, or you can say, "I don't buy that", and go right on losing. Remember, one of the definitions of insanity is doing the same thing over and over while expecting different results.
Fault #1) Not knowing your basic strategy -- all of it! The typical know-it-all makes enough mistakes with his hands to triple the natural house edge in blackjack from a slim 0.5% up to 1.5%! If you typically stand with 12 against a 3 and with Ace/7 against a 10, hit with 11 against a 10 but double with Ace/4 against a 3, then that includes you! Get a basic strategy chart and memorize that puppy. Your game has some serious holes in it.
Fault #2) Believing you should back off when you're losing and press it when you're winning. The opposite isn't true either. How you're doing at the moment should have no influence on your game plan. There are several important indicators you should react to in blackjack, but that's not one of them.
Fault #3) Believing that the order of the cards is sacred. Does it bug you when you've just put a big bet up and the goof next to you suddenly plays two hands instead of one? Do you ask for "No-Mid-Shoe Entry" signs to keep other jerks from barging in during the middle of the shoe and changing the flow of the cards? If that sounds like you, you'd better get over it. Read my lips: "That has nothing to do with anything!" Stop thinking with superstitions and watch for more important developments.
Fault #4) Believing that bad players cost you money. Quit blaming other people for your own self-inflicted losses, darn it! The fact is, an idiot's "bastard" play will help you as often as it'll hurt you -- but you'll never remember the ones that go your way.
Fault #5) Thinking that "money management" betting systems can give you an edge. All that betting progressions do is neatly cancel themselves out after all your streaks and choppy sequences have occurred as often as they're supposed to.
Okay, if you're not resolved to blow off those top five hang-ups, then don't even bother with the next three skills -- you've already lost.
Skill #1) Learn some "advanced" basic strategy. What's that? Many times you should positively stand with 16 against a 10 and hit 12 against a 4. All it takes is noticing that a couple extra low cards or high cards, respectively, have hit the board. When a really glaring barrage of low cards are on board, you should even double down with 9 against a 2, with 11 against an Ace and with Ace/8 against a 5 or 6. All these plays will save or make you an extra bet occasionally.
Skill #2) Blackjack is just a game of high and low cards. Learn to recognize when lots of little ones have come out and bet more at those times. Likewise, go into your shell after lots of 20s and blackjacks have been dealt -- the dealer's likely to dominate the play with all those babies left in there.
Skill #3) Develop the poise to remember that in gambling just about anything can and will happen. If there's the smallest crack in your armor, losing can knock you off your game. You might not double with 11 against a face-card because you've lost every double so far today. Or you might make a huge "get even" bet out of sheer frustration. Even if you possess every tactical skill and attribute, you'll be just another bad player once you surrender your poise.
For more information about blackjack, we recommend:
Blackjack Bluebook: The Right Stuff for the Serious Player by Fred Renzey
Best Blackjack by Frank Scoblete
The Morons of Blackjack and Other Monsters! by Frank Scoblete
Winning Strategies at Blackjack! Video tape hosted by Academy Award Winner James Coburn, Written by Frank Scoblete


We observed that "Camping" is a popular activity that youths can fondly associate with - a time to make friends, have fun and learn new stuff. But we noticed that very few camps are organised for senior citizens, which could probably achieve the exact objectives - to extend their social network and learn new skills.
Seniors' Learning Camp is a 2D1N camp, where South East CDC introduces a series of team-building games, workshops and exciting activities to bond seniors aged 45 and above in a youthful, happy and fun environment. We create positive perceptions of ageing, showing participants ways they could lead an active lifestyle. After the camp, South East CDC continues to build their capacities and empower them to contribute actively to the community.
We introduced workshops such as Nurturing Your Mind, Enhancing Communication, Art Therapy, Positive Thinking. We exposed seniors to fun activities, such as Air Rifling, Laser/ Archery Tag and Outdoor Adventure like the Flying Fox and other obstacle courses. We are creating positive perceptions of ageing by showing them the many opportunities and activities they could participate and learn to lead an active lifestyle.
Furthermore, to encourage inter-dependant learning and mentoring, seniors from the Alumni are invited to facilitate the camps.
After the camp, the seniors would form in their groups to plan and organise one community project that could bring joy to the less fortunate. Over the past 7 camps, we have engaged more than 150 seniors who have implemented at least 14 community projects and outreached to at least 500 less privileged residents. The seniors also form an alumnus for sustained involvement in further learning, activities, workshops and projects.


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About Votorantim
Votorantim Memorial
Votorantim Academy
All Against Coronavirus
The future happens here
The construction of the future involves a constant search for innovation and transformation. We face uncertainties that come from profound changes in business environments and complex challenges in society, requiring significant reflections on our business models.
All this movement breaks the inertia of how to act. We are engaging our teams and looking towards the future with courage. And we do this with a long-term vision and an ethical commitment, because it implies negotiating with generations who have not even been born but the Company will relate with. For a century-old company like Votorantim, who is thinking about its next 100 years, this is even more crucial.
Launched by Votorantim Energia, one of our investees, the project is aimed at tech startup companies, bringing the Company a step closer to the startup ecosystem. The goal is to form a network that discusses ideas, projects and possibilities for future partnerships in areas such as energy trading, solar energy and power plants of the future. The best rated startups will be able to provide Votorantm Energia with services or innovative solutions.
100 Open Startups
We at Votorantim, and some of our investees, are co-sponsors of this movement, which is the main international connection platform between large companies and open innovation startups ("100 Open Startups") that identifies synergies and foster an environment for the joint development of projects. How does it work? We, along with Nexa, Votorantim Cimentos, Citrosuco and Votorantim Energia, launch challenges for startup companies to come up with solutions. The proposals submitted are evaluated by our employees, who act as volunteers, and the most appropriate solution is chosen.
Vototalks
Aiming to support the creation of an innovative and high performance oriented culture, the Vototalks initiative emerged in 2015 as an idea from a group of young talents at the holding company, focused on the promotion of dialogues with external guests on topics involving innovation and sustainability. This has turned into an institutional initiative and has been disseminated at our investees, with four editions per year, opened to the general public and with live transmissions.
Mining Labs
This Nexa program, one of our investees, has the support of the Federation of Industries of the State of Minas Gerais (FIEMG) and startup accelerator Techmall. The goal is to seek and identify projects and ideas that contribute with innovative solutions for the mining industry. Selected proposals will be developed in partnership among Nexa and startups.
Anti-Corruption Program
juliana.souza@fleishman.com.br
gabriel.santos@fleishman.com.br
© Votorantim - 2021
We use cookies to analyze your interaction with our site and improve the offered content. We also know about personal data, the Privacy Policy and Use of Votorantim Sites. By continuing to browse, you agree to our policy.


If you sent me an email in early November and I haven't answered, I'm not ignoring you. I don't have the message. Please send it again.
Currently I'm getting email, but without the detailed folder-and-filter system on my laptop. If I'm slow to respond, it's because the the email is in a big, tangled, pile of goo. Please resend.


Total Knee Replacements…Is it Always the Answer?
When suffering from debilitating knee pain that limits your function and quality of life a total knee replacement may seem like the solution. This surgical procedure involves replacing the painful joint with a prosthetic joint, which gives hope for improved mobility, strength and decreased pain. Total knee arthroplasty (TKA) also known as "total knee replacements" are becoming more popular as a successful, cost-effective measure to improve function for individuals with significant knee arthritis. In the US 600,000 surgeries were performed in 2012 compared to 250,000 15 years ago.
The decision as to whether a patient is an appropriate candidate for a TKA is multifaceted, and is unique to each individual. A person's mental health, co-morbidities and body mass index are taken into account along with their X-ray results and the severity of their condition. Patients with fewer co-morbidities and affected joints, higher pre-operative function and a non-inflammatory arthritis are most likely to do well after a TKA. Patients who are non-responsive to conservative measures and have advanced arthritis characterized by severe pain and functional disability (i.e. difficulty climbing stairs, getting in and out of a chair or walking independently) are deemed most appropriate for a TKA.
Pain is one of the most important factors influencing the recommendation for total joint replacement,. The goal for many patients undergoing this surgery is to reduce their pain and improve their functional status. However, recent evidence indicated that up to 20% of total knee replacement patients were experiencing "unfavourable pain" up to 5 years post-surgery. Unfavourable pain was defined as lack of improvement in pain scores, pain at rest, persistent pain and night pain. Patients considering undergoing a total knee replacement should be aware of the potential risks following surgery and that their prognosis can vary.
If you and your surgeon determine that a total knee replacement is right for you, a physiotherapist can help to optimize your surgical outcomes and assist in the management of pain after your surgery. Studies show that quadriceps muscle strength can significantly affect your functional outcomes after TKA and as such it is important that you are able to strengthen this muscle group effectively after your surgery-a physiotherapist can help you achieve this safely! A physiotherapist will also help you attain full range of motion of the knee, strengthen other supporting musculature and work with you to improve your endurance, balance and normalize your gait.
If you have recently had a total knee replacement and would like us to help you improve your outcomes, book in with one of our skilled and knowledgeable physiotherapists today!


text:
Q: Alter table add primary key (MySQL) I had this error when I tried to add a primary key to my table:

lost connection to MySQL server during query

And this is my query:
ALTER TABLE test ADD  PRIMARY KEY (ORDER_ID);

My database configuration timeout:
+----------------------------+----------+
| Variable_name              | Value    |
+----------------------------+----------+
| connect_timeout            | 10       |
| delayed_insert_timeout     | 300      |
| innodb_lock_wait_timeout   | 50       |
| innodb_rollback_on_timeout | OFF      |
| interactive_timeout        | 28800    |
| lock_wait_timeout          | 31536000 |
| net_read_timeout           | 30       |
| net_write_timeout          | 60       |
| slave_net_timeout          | 3600     |
| thread_pool_idle_timeout   | 60       |
| wait_timeout               | 28800    |
+----------------------------+----------+


Philippe Rasquin has been working for SABIC since 2009 and is currently managing the new business development of global caps and closure segment of SABIC in Europe.
Before joining SABIC, Mr. Rasquin worked at Ineos for 10 years and held various positions within the technical service and business development. Furthermore, he has industry experience in master batches and compounds, thermoplastics and manufacturing.
Prior to this, Rasquin worked in the field of macromolecular chemistry for 3 years at the University of Liege, Belgium.
Rasquin earned a bachelor degree in Chemistry from the Haute Ecole Charlemagne, Belgium.
In his free time, Rasquin is a certified diving and emergency first response instructor as well as bee keeper.


'Cops stripped me, took my money'!
[Auto Talk] Your most expensive car repair!
[Auto Talk] What tyres or tires are you using?
[Auto Talk] Voltage Stabilizers really any help?
[Auto Talk] Honda Accord Or Toyota Camry?
[Auto Talk] Can regularly shifting to Neutral on an automatic gear damage it?
Zapped by high-voltage torch light?


A Resourceful Home .com: Pantry Challenge!
"Most of you who know me well have seen my pantry. It's big and usually pretty well-stocked. This fall it started getting really full and I knew I'd have to plan lots of meals to start using stuff up. I also have a full size freezer in the garage that is full. This summer I froze lots of our garden tomatoes and am trying to save money buy cooking bulk beans and freezing them in appropriate portion sizes. I also started making/saving chicken broth and freezing it. All of this freezing is so I don't have to buy cans of beans, tomatoes, or broth.
I also feel way more secure somehow having tons of food on hand and we've had so much upheaval lately I think I let the stockpile grow and grow and grow to help me feel better.
So, I planned to start using stuff up in November, but we came home from a trip November 2 to find the water mess and then we had family visiting and two weeks of meals and snacks from wonderful friends at church. I was given lots of excellent, random leftovers from the church kitchen, too. Even though I didn't even visit a grocery store for nearly 3 weeks I probably only used 2 things out of our pantry & freezer. The food was flowing in abundance.
Wow, I actually feel a little vulnerable showing those pictures to whoever is out there reading this. It's like my secret stash, EXPOSED!
Anyway, we took a huge bag of food to church that weekend for the Thanksgiving baskets. You can imagine our surprise and delight when we found out that we were actually receiving one of the baskets. Even more hilarious is that we found some of our own donations included in the groceries we received.
1) For the months of December and January I cannot add to my pantry or freezer.
2) New dry or canned goods must used for planned meals in the next week only.
3) Purchases should be primarily produce & dairy for the fridge.
1) Freezer meals received from my monthy meal swap can be added to the freezer. I can also purchase dry goods to make my freezer meals for the next swap only.
2) I can add up to five pounds of hamburger or chicken if I am down to one pound or less of either.
3) If I get things for free, they can be added to the pantry or freezer.
I am posting this challenge on the blog for accountability and for fun. I will post a picture of any grocery shopping each week so you can what I am buying and how little I spent because I'll be drawing on the vast food resources we already have.
So that's all. Now you know about my weird food-hoarding habit and how I plan to pare things down this winter. Thanks for your encouragement & support! If anyone else wants to have a challenge of their own, I'd love to hear that you're doing it, too. Please ask questions or comment so I know there is some accountability."
FYI after 4 weeks I am down to 35 boxes of cereal, 21 cans of soup, & 15 boxes of crackers.


This week in North Philly Notes, we showcase our most popular books of the past year: The Top 10 best sellers of 2017!
Philadelphia: Finding the Hidden City, by Joseph E. B. Elliott, Nathaniel Popkin, and Peter Woodall. Revealing the physical and cultural intricacies of Philadelphia, from the intimate to the monumental.
The Man-Not: Race, Class, Genre, and the Dilemmas of Black Manhood, by Tommy J. Curry. Introduces the conceptual foundations for Black Male Studies, going beyond gender theories that cast the Black Male as a pathological aspiring patriarch.
The Forest and the Trees: Sociology as Life, Practice, and Promise, Third Edition, by Allan G. Johnson. An updated exploration of sociology as a way of thinking.
Tasting Freedom: Octavius Catto and the Battle for Equality in Civil War America, by Daniel R. Biddle and Murray Dubin. The life and times of the extraordinary Octavius Catto, and the first civil rights movement in America.
The New Eagles Encyclopedia, Ray Didinger with Robert Lyons. The best-selling book on the Philadelphia Eagles, completely updated and expanded.
The Possessive Investment in Whiteness: How White People Profit from Identity Politics, Revised and Expanded Edition, by George Lipsitz. A widely influential book—revised to reveal racial privilege at work in the 21st century.
Historical Thinking and Other Unnatural Acts: Charting the Future of Teaching the Past, by Sam Wineburg, How do historians know what they know?
We Make the Road by Walking: Conversations on Education and Social Change, by Myles Horton and Paulo Freire, edited by Brenda Bell, John Gaventa, and John Peters. Two pioneers of education discuss their diverse experiences and ideas.
Believing in Cleveland: Managing Decline in "The Best Location in the Nation," by J. Mark Souther. Explores how civic and business leaders used image-making in an effort to reimagine and revive Cleveland in the decades after World War II.
Phil Jasner "On the Case:" His Best Writing on the Sixers, the Dream Team, and Beyond, edited by Andy Jasner. Three decades of reporting by renowned Philadelphia Hall of Fame sportswriter Phil Jasner.


Every business and organisation can experience a serious incident that can prevent it from continuing operations.
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The following contribution was sent exclusively to EURACTIV by Christoph Pausch, executive secretary of the European Microfinance Platform.
"We saw last week that the EU is largely on track to deliver its part of the Copenhagen Accord's $30bn pledged for fast start finance in developing countries. Debate around this facility, intended for climate change mitigation, adaptation, technology transfer and capacity building, has focused largely on raising enough funds and the institutional architecture that will be used for delivery.
There has been little emphasis on how to help the most vulnerable people to adapt and how to effectively deliver resources at a local level.
The principle of microfinance – providing financial services to the 'bottom of the pyramid' – is very relevant to this dilemma. Access to credit can help the poor to build up their assets, establish business activities and improve their protection against risk in general.
Moreover, microfinance projects that target water management, sustainable agriculture and disaster preparedness present direct 'win-win' adaptation opportunities. Classic examples include the provision of loans for flood-proof housing, crop diversification and irrigation.
A recent OECD review found that some 43% of current microfinance activities in Bangladesh were also enhancing resilience to climate change. Furthermore, some microfinance institutions (MFIs) have started to develop a more specific focus on financing activities to reduce long-term vulnerability to climate risk, especially with respect to disaster preparedness.
Thus MFIs have the potential to enact adaptation projects at the local level and provide a valuable network of institutions working with communities across the globe. How can policymakers learn from this experience and channel resources to scale-up adaptation centred microfinance?
Start-up funding is critical for MFIs which often rely on initial donor support. Supplying predictable finance to start-up or scale-up adaptation focused MFIs could provide a valuable mechanism by which international adaptation funds could support local-level adaptation. Where public money would start, private investment would follow – supporting adaptation focused MFIs that establish a valid model for financing sustainable development.
Of course, microfinance is not relevant to all adaptation needs. Large-scale infrastructure projects such as sea walls, dams and the draining of glacial lakes need to be established through large-scale financing mechanisms. Funding through microfinance should be considered as a complement, supporting the many decentralised actions that will be required of individuals and communities to internalise the risks associated with changing weather patterns and increasing disaster frequency.
The European Microfinance Platform recommends that EU member states be mindful of this dimension of adaptation and look to MFIs as successful channels for reaching the most vulnerable or they risk marginalising those most in need."


I show my favorite method of cleaning gum wall, white wall and other light color bike tires as I clean the gumwall tires on my Zeus Professional using Bleche Wite.
I show how to make simple tools to measure Effective Rim Diameter (ERD) and how to use them. The are made out of old bike spokes. The ERD is one of the measurements needed to determine spoke length when build a wheel.


"We can bring value to businesses by giving them access to new people in the tech space," said Nathan Archer, chairman of the community and director of business development for A&H Technology Group, New York, N.Y., in a press statement.
"The research continues to show that the companies with the most diversity tend to make the most innovative decisions, tend to be the most profitable," Thibodeaux said in his interview.
Security dominated the discussion at the meeting of the CompTIA Managed Services Community. Speakers noted that while most organizations acknowledge the importance of security, a significant number of them have yet to upgrade their defenses. That may require a change in the customer-technology provider conversation, according to Robert Boles, founder and president, BLOKWORX Inc., San Francisco. "Security is not a product," Boles said in a press statement. "Security is really a culture. It's a constant, ongoing learning process."
Two other communities celebrated recent award winners.
Three young leaders who are excelling in their roles with IT channel organizations were honored as ChannelChangers for 2018 by the CompTIA Future Leaders Community. This year's honorees are Jessie Devine, QuoteWerks; Mackenzie Heddy, The ASCII Group; and Hannah Lloyd, Inbay.
At the CompTIA Advancing Women in Technology (AWIT) Community session, three women singled out for their commitment, leadership, and mentorship in the industry and a recent high school graduate were recognized as the recipients of the inaugural CompTIA AWIT Spotlight Awards.
The 2018 CompTIA AWIT Spotlight award winners are Roberta J. Fox, the FOX GROUP; Kathryn Rose, wiseHer.com; and Sheryne Glicksman, Inside the Solution. Also, Sarah E. Johnson of Philadelphia received the inaugural CompTIA/ChannelPro Cecilia Galvin Scholarship Award, named in memory of journalist and former ChannelPro Executive Editor Cecilia Galvin, a passionate supporter of women in technology.
Throughout the four-day event, attendees also have the opportunity to network, attend educational sessions, and meet with the more than 150 exhibitors participating in the show.


text:
Onteniente peut désigner :

Patronyme
Fabien Onteniente (né en 1958), réalisateur français ;
Pierre Onténiente (1921-2013), surnommé Gibraltar, secrétaire et ami du chanteur français Georges Brassens ;

Toponyme
Onteniente, nom castillan d'Ontinyent, ville d'Espagne, dans la province de Valence.

Homonymie de patronyme


The Rovigo Round Planter is a stunning Aegean world pot. This is a standout pot, planted inside or outdoors, on a patio, deck or in a garden. Finely crafted in terra cotta. These planters are distinguished by their splendid forms and clean lines. Guaranteed outdoor durability. Shown in Terra Nova finish. Color finishes are hand applied and may vary making each piece unique.


Another incredible healthy cookie-dough recipe this time with fun Halloween flair. These adorable mummies are fun to make for the whole family, healthy enough for parents to appreciate and sweet enough for the kids to enjoy too!
In a food processor fitted with the steel blade, combine the cashews, collagen hydrolysate, and oats. Process until finely ground, 30-45 seconds. Add the maple syrup and vanilla. Process until a shaggy dough forms, about 1 minute.
Mix in the in dark chocolate chips by hand. Roll into 1-inch balls. Place on a parchment-lined plate and transfer to the refrigerator or freezer.
Place the white chocolate chips in a pot set over low heat. Stir often until melted and smooth.
Transfer to a shallow bowl. Dip the cookie dough balls in white chocolate to coat. Return to the parchment-lined plate.
Transfer to the refrigerator or freezer for 10 minutes.
If the remaining white chocolate has stiffened, return it to the pot to reheat until soft and smooth. Transfer to a piping bag or plastic food storage bag. Snip a small hole in the tip. Pipe over the cookie dough balls in a horizontal pattern to resemble mummy wraps.
Top each cookie dough ball with candy eyes. Return to the refrigerator or freezer until set.