Jurisdiction: Massachusetts

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  March 2007 – Carris James, banquet steward, was punched in the eye during an incident not related to work and suffered a retinal detachment for which he underwent surgery in the following month.
  
• 
  Human resources provided him information about FMLA leave.
  
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  His physician, Dr. Scott, stated he could return to “light duty” on May 10, but did not state for how long.
  
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  April 25 – he requested FMLA leave, which was applied retroactively to include his previous related absences.
  
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  May 9 – he gave his employer additional documentation indicating he was “unable to work in any capacity.”
  
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  Subsequently he received disability benefits based upon that information – “unable to work in any capacity”.
  
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  May 11 – he submitted a medical certification stating that his condition could possibly lead to permanent incapacity.
  
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  His 12 weeks of FMLA ended on July 13, 2007. However, the collective bargaining agreement provided job-protected leave for up to one year from his original absence.
  
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  August – he submitted various pieces of documentation, including one release stating that though “visually impaired”, he could return to work – but documentation from Dr. Scott continued to state he was incapable of working in any capacity.
  
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  September 25 – he faxed a note yet another physician stating he could return to work with lifting and bending restrictions, but those restrictions would have precluded him from returning to the banquet steward position.
  
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  At this point his employer attempted to contact him for additional information, but no clarification was provided until January 2008, when Hyatt’s Workers Compensation and Safety Manager sent a letter directly to Dr. Scott, enclosing a return to work certification form, as well as a job analysis for the banquet steward position. Dr. Scott responded that James could return to work, but could not complete any task that required better than 20/200 vision. Hyatt then met with James and scheduled a return to work in the same position, shift, and seniority level as before his medical leave.
  

1. 
   The FMLA states that “if an employee cannot perform an essential function of [his] original position because of a physical or mental condition, the employee has no right to restoration to a different position under the FMLA.” [Note: Though the FMLA requires an employer to return an employee to either the position held at the time the FMLA leave began or to an “equivalent” position, it neither:
   
   1. 
      requires an employer to restore an employee to a light duty position (which clearly isn’t equivalent) nor
      
   2. 
      allows just returning before to the expiration of the allowed leave time.]
      
2. 
   Concerning his ADA claim of failure to accommodate him, it noted his visual impairment had been accommodated beginning in 1985.
   
3. 
   Finally, these factors were important to the court:
   
   1. 
      his “conditional” and contradictory releases being provided by him,
      
   2. 
      his application for disability benefits on the ground that he unable to work in any capacity, and
      
   3. 
      not providing sufficient information for the company to understand the true nature of his condition, or to formulate or implement a reasonable accommodation. [Note: The accommodation process must be interactive and done in good faith.]
      

Class action: erroneously certified , reversed and decertified based on Dukes v. Walmart

• 
  After the “settlement”, the plaintiff sued for $140,000 in attorney fees. The trial judge reasoned that Title VII allows plaintiffs to recover attorneys' fees and said, "This court believes that costs and fees were specifically addressed by the terms of the offer of judgment.”
  
• 
  The appellate court also ruled in her favor and remanded [returned] the case the trial judge to determine "reasonable" fees and costs. According to the appellate panel, under Rule, which governs certain settlement offers, parties making offers must be clear about what they are offering, and it wasn’t clear if the offer of judgment included fees and costs:
  

Once more we must teach defendants making Rule 68 offers to be specific and clear in their offers. Any ambiguities will be resolved against them.

Submitted by: Subcommittee on the Family and Medical Leave Act

Brief description of the contents of the PDF file:

• 
  page 1: list of contributors
  
• 
  pages i-xi: Table of Contents
  
• 
  pages 1-290: case briefs and citations
  

ADA: random alcohol testing, job-related, consistent with business necessity, mandatory for safety sensitive positions

• 
  the employer was to:
  
  • 
    pay $7,500 to the former employee and
    
  • 
    provide him with a neutral employment reference, and
    
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  the employee agreed not to seek reinstatement or apply for future employment with the employer.
  
• 
  Further:
  
• 
  The settlement agreement contained a broad confidentiality provision to “keep the terms of this Agreement strictly confidential and will not communicate or disclose to any other person, natural or otherwise, except as required by law, the contents of any term or provision contained herein or any other aspect of this agreement between the parties”, and
  
• 
  It provided neither
  
  • 
    a notice-posting provision nor
    
  • 
    provision for reinstatement of the employee.
    

This Jackson Lewis law firm article explains the case and the history and reasoning: http://www.jacksonlewis.com/resources.php?NewsID=4383.

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  it had been struggling for a long time,
  
• 
  it had to recall a large number of go-karts,
  
• 
  a purchaser deferred an order of swing sets, and
  
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  a large payment for another transaction was withheld, etc.
  

FLSA: overtime exemption, automobile-dealership service writers and service advisors, §13(b)(10)(A) definition of "salesman, partsman, or mechanic"

Citations and URL links:

• 
  Brookins v. Staples Contract & Commercial Inc., NO. 11-11067-RWZ (U.S.D.C.MA, 2/12/13) [enhanced lexis.com version]
  
• 
  FMLA regulation: 29 C.F.R. § 825.305(b) [annotated lexis.com version]
  
• 
  Explanatory article:http://www.fmlainsights.com/certification/employees-lack-of-diligence-in-obtaining-timely-medical-certification-destroys-her-fmla-claim/
  

Recent amendments to FMLA regulations set forth both rights and responsibilities of both employees and employers, both of whom owe each other a duty of good faith and diligence, and this case demonstrates the need for training in policies and practices and in rights and responsibilities of all concerned.

• 
  The federal trial court first excluded the expert witness testimony offered by the EEOC as scientifically unsound (expert witness testimony is essential in disparate impact cases, because they rise and fall on the percentage of job applicants from a given classification as compared to the percentage of hires in the same classification).
  
• 
  Absent any statistical evidence demonstrating an adverse impact caused by the use of credit checks, the EEOC's case had to be dismissed.
  

Title VII: gender, deficient performance, policy violations, Performance Improvement Plan (PIP), adverse employment action, two reasons for termination, retaliation

1. 
   the nature, severity and duration of her impairment;
   
2. 
   the activities the impairment limits;
   
3. 
   the extent to which the impairment limits her ability to perform those activities; and
   
4. 
   what, if any, accommodation can be provided that would enable her to perform the essential functions of her position.
   

Complications arose:

• 
  Before being able to obtain that written information she fell and broke her foot, and her physician recommended a month off from work.
  
• 
  At the end of the month she presented another medical note stating she would need to be off from for an additional three months.
  
• 
  The human resources direct wrote to her physician listing her job duties and asking whether the company could provide any reasonable accommodation that would permit her to resume being regularly present at the store and performing her duties.
  
• 
  The response from her physician a few weeks later stated that she could not work during the three month period.
  
• 
  A week later the human resources director called to inform her that the company was terminating her employment, and then followed up with a letter stating:
  

As we advised you in our email of July 29, 2009, it is essential for a boutique manager to be in regular attendance at the boutique. Nevertheless, you have been absent since September 5, 2009, and your doctor has advised that you are unable to return to work until early January 2010. Because we must have a manager in the Valley Fair boutique, we must replace you.

• 
  She was found to be completely disabled and unable to work.
  
• 
  Section 12940(a) of FEHA prohibits an employer from discharging a physically disabled employee because of that employee’s physical disability, but An employer may lawfully discharge an employee who “is unable to perform his or her essential duties . . . even with reasonable accommodations.” Cal. Gov’t Code § 12940(a)(1). In order to establish that a defendant employer has discriminated on the basis of disability in violation of FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.”
  
• 
  Lawler was not able to do the job, regardless of accommodation because she was completely disabled from working since October 2009.
  
• 
  The retaliation and harassment claims were also dismissed because. Montblanc had a legitimate business reason for terminating her – it needed a store manager during the busy season and there was no indication that she could return to work. Also, she provided no evidence that the company had a discriminatory motive for the termination her employment, and it had a legitimate business reason.
  

FMLA: termination of employment after leave, adverse employment action, discovery of misconduct close to taking FMLA leave, falsified delivery times, violation of company policy, similarly situated male employee treated the same