Jurisdiction: 6th Circuit and S.D.N.Y. conflict

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  Riddle v First Tennessee Bank, No. 11-6277 (6th Cir. , 8/31/12); http://www.ca6.uscourts.gov/opinions.pdf/12a0969n-06.pdf [enhanced lexis.com version], and
  
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  Nielsen v. AECOM Tech. Corp., No. 12-cv-05163 (S.D.N.Y. Dec. 11, 2012); http://www.whistleblower-defense.com/files/2012/12/here.pdf [enhanced lexis.com version].   
  

ADEA: unwritten policy – warning, counseling and documenting, no chance to improve, evidence – “but for” age test – McDonnell Douglas test - “cat’s paw”, insufficient evidence for a reasonable juror to infer age discrimination – no issue of material fact, summary judgment denied

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  She failed the “but for” test, i.e., insufficient evidence for a reasonable factfinder to conclude, based on a preponderance of the evidence, that age was the “but for” cause of the decision to not renew her teaching contract – “to succeed on a claim of age discrimination, a plaintiff must prove by a preponderance of the evidence that her employer would not have taken the challenged action but for the plaintiff’s age”.
  
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  She failed in part two of the McDonnell Douglas test – though she had established a prima facie case of discrimination, in the second step the defendants had proffered a legitimate, nondiscriminatory reason for not renewing her contract, namely, parental complaints.
  

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  Finally, Braun pointed to the school principal’s failure to follow his own unwritten policy of informing teachers of parental complaints and giving a teacher a chance to improve [the warning, counseling and documenting procedure to help an employee to improve his or her performance]. This case falls into a category of employment matters that this court [and most, if not all, others] will not second-guess management “even if it seems in hindsight that the action taken constituted poor business judgment.” The court said its role is to prevent intentional discriminatory hiring practices, not to act as a ‘super personnel department.’”
  

Public Sector: Fourteenth Amendment, at-will employment, construing – contract – handbook – ordinances – statutes, claim of property right to position rejected, summary judgment in favor of city

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  Her contention was that she refused on religious and political grounds because she is a vegan and does not ingest any animal or animal by-products.
  
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  Her employer moved to dismiss the complaint on the grounds that veganism is not a true religion but rather a dietary preference or social philosophy.
  

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  Inquiry needs to be made about whether this is a demonstrable true belief based on religious grounds, which is her burden of proof [and advice of counsel would be prudent]; also check this Jackson Lewis article: http://www.jacksonlewis.com/resources.php?NewsID=4372.
  
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  Is refusal of a flu shot by an employee of ten years serious enough action to warrant an adverse employment action, in this case termination of her employment?
  
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  Was there any reasonable accommodation, bearing in mind that for religious grounds, the standard is more relaxed than for disability?
  

NLRB: recess appointments, validity of decisions, constitutional law

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  The President filled the NLRB vacancies on Jan. 4, 2012, when Congress was on an extended holiday break.
  
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  During the break, Republican lawmakers gaveled in for a few minutes every three days for the purpose of preventing the President from making recess appointments.
  
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  The President contended that pro forma sessions were a sham — some of which lasted less than a minute.
  
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  The D.C. Circuit Court of Appeals not only rejected that argument:
  
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    it went on to find that under the Constitution, a recess occurs only during the breaks between formal year-long sessions of Congress, not merely any informal break when lawmakers leave town, and
    
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    it also held that presidents can bypass the Senate only when administration vacancies occur during a recess.
    

Clearly, this case will ultimately wind up in the United States Supreme Court. For human resources and employment law professionals and practitioners, this puts the validity of a huge number of NLRB rulings in question.

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  Shannon J. Mandel was hired on October 25, 1996, as an Inside Sales and Customer Relations Coordinator.
  
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  In the following context of her allegations, perhaps the single word “bitch” was the final straw in a history of pervasive conduct throughout her employment from October 25, 1996, to May 23, 2007-- she appears to have been sexually harassed and discriminated against by male managers, supervisors, and owners:
  
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    being referred to as “woman,” “darling,” “the woman,” “fluffy,” “missy,” “hon,” and “toots”;
    
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    having her body, clothing, and physical appearance commented on; being told that she was “foolish not to use [her] assets”;
    
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    being told by Systems Manager David Benetz, when she asked for directions to a meeting at corporate headquarters, that “[f]or you . . . the meeting will start at my house tonight and we will conclude our part of it tomorrow morning – maybe . . . we may need to postpone the meeting with everyone else a few hours to finish up . . .”;
    
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    being told by Quality Manager Harold Brenneman that he fantasized about her while he was having sex with his wife;
    
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    being told in a review by Managing Director (and later President & COO) Michael Schmal that she was “too female” and “too emotional”;
    
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    being solicited for dates by Vice President of Sales Curt Rubenstein even after she told him she was not interested;
    
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    being told to clean the bathroom and make coffee when male employees were not asked to perform such tasks; and
    
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    being paid less and given less vacation time than a male manager.
    
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    April 6, 2007 – during a meeting regarding sample orders, Bachert became angry, repeatedly called Mandel a “bitch,” and screamed “shut the fuck up.” Bachert had previously referred to Mandel as a “bitch,” both in and out of her presence.
    
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  As a result of the meeting, she resigned on May 23, 2007, by submitting a letter with two weeks’ notice to Schmal. When Mandel resigned from M&Q, she accepted a position elsewhere.
  

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  Limitation of actions – 300 days in cases of “discrete acts”, i.e., individually actionable, such as adverse employment actions consisting of termination, failure to promote, denial of transfer, or refusal to hire.
  
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  However [edited for easier reading], under the continuing violation doctrine, discriminatory acts that are not individually actionable may be aggregated to make out a hostile work environment claim:
  
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     Such acts “can occur at any time so long as they are linked in a pattern of actions which continues into the applicable limitations period” and a court may consider “entire scope of a hostile work environment claim . . . so long as any act contributing to that hostile environment takes place within the statutory time period”.
     
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     A hostile work environment claim “is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice’” and “cannot be said to occur on any particular day.”
     
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     To allege a continuing violation, the plaintiff must show that all acts which constitute the claim are part of the same unlawful employment practice and that at least one act falls within the applicable limitations period. A plaintiff must show that at least one act occurred within the filing period and that the harassment is “more than the occurrence of isolated or sporadic acts of intentional discrimination” – and permanency [continuation] of conduct is not required.
     
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  Hostile work environment defined:
  
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     Title VII prohibits sexual harassment that is “sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working environment.”
     
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     To succeed on a hostile work environment claim [plus constructive discharge], the plaintiff must establish that:
     
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        the employee suffered intentional discrimination because of his/her sex,
        
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        the discrimination was severe or pervasive,
        
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        the discrimination detrimentally affected the plaintiff,
        
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        the discrimination would detrimentally affect a reasonable person in like circumstances, and
        
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        for a claim of constructive discharge, the existence of respondeat superior liability [respondeat superior is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment.]
        
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  Severe or pervasive: To determine whether an environment is hostile, a court must consider :
  
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     an analysis of the totality of the circumstances, including
     
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     the frequency of the discriminatory conduct;
     
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     its severity;
     
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     whether it is physically threatening or humiliating, or a mere offensive utterance; and
     
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     whether it unreasonably interferes with an employee’s work performance.
     
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     The analysis must concentrate not on individual incidents, but on the overall scenario.
     
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  Detrimentally Affected: An objectively reasonable person in her place might be offended by the alleged incidents.
  
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  An employer’s liability for a hostile work environment claim depends on whether the harasser is the victim’s supervisor or coworker.
  
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  Proof [McDonnell Douglas]: A plaintiff must first establish by a preponderance of the evidence a prima facie case of discrimination, which means that a plaintiff must show that:
  
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     s/he is a member of a protected class,
     
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     s/he was qualified for the position s/he sought to attain or retain,
     
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     s/he suffered an adverse employment action, and
     
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     the action occurred under circumstances that could give rise to an inference of intentional discrimination”
     

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   whether the employee was threatened with discharge,
   
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   encouraged to resign, demoted, subject to reduced pay or benefits, involuntarily transferred to a less desirable position, subject to altered job responsibilities, or given unsatisfactory job evaluations.
   

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  Language of the bargaining agreement did not clearly imply or suggest that:
  
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    the parties intended for arbitrators to decide issues about whether to arbitrate or
    
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    to disputes about the interpretation and application of the agreement.
    
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  The parties did not agree to submit the issue of the status of engineers because the CBA applied only to “non-management” or “occupational” workers, and the employer classified engineers as management.
  

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  The county made a conditional offer of employment as a lifeguard to Nicholas Keith, who has been deaf since birth, the condition being that he pass a pre-employment physical.
  
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  He had passed the county's lifeguard training course and program with the assistance of an American Sign Language ("ASL") interpreter for verbal instructions. The interpreter did not assist Keith in executing lifesaving tasks.
  
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  The physician who examined Keith for his pre-employment physical told the county that Keith could not function independently as a lifeguard, but that he could be a part of the lifeguard team if his deafness was "constantly" accommodated and, even then, expressed doubt as to whether the accommodation would always be adequate.
  
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  Two members of the county's aquatic safety and risk management were consulted:
  
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    They expressed doubt and concern over his qualifications to be a lifeguard.
    
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    However, like the physician, neither of them had knowledge, education, nor experience regarding the abilities of deaf people to effectively function as lifeguards.
    
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    They did not personally meet with him or observe him functioning as one.
    
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    Notably, the county's recreation specialist suggested possible accommodations that she believed would integrate him, but the consultants remained hesitant.
    
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  The county subsequently revoked Keith's offer of employment.
  

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  He sued for disability discrimination under the ADA and the Rehabilitation Act.
  
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  The trial court granted summary judgment dismissal in favor of the county.
  

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  The appellate court reversed the district court's grant of summary judgment to the county, holding that a genuine issue of material fact existed as to whether Keith was "otherwise qualified" to be a lifeguard, with or without reasonable accommodation.
  
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    It is unlawful under the ADA to discriminate against "a qualified individual on the basis of disability" and defines "discriminate" to include failure to provide reasonable accommodation to an otherwise qualified individual with disability unless doing so would impose an undue hardship on the employer's business. 42 U.S.C. § 12112(a), (b)(5). "Otherwise qualified" is defined as being able to perform the "essential functions" of the job with or without reasonable accommodation.
    
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    The issue of whether a job function is "essential" is usually a question of fact for a jury, not summary judgment.
    
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    The Court found a genuine issue of fact as to whether Keith was "otherwise qualified" to be a lifeguard because the decision of the county was based on insufficient expertise, whereas his evidence was based extensively on the expert testimony of individuals with knowledge, education, and experience regarding deaf lifeguards, as offered by Keith and essentially not rebutted by the county:
    
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      Evidence showed that lifeguards adhere to a purely visual scanning methodology to identify distressed swimmers.
      
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      He presented evidence that he could enforce safety rules around the pool because most lifeguards depend on the use of whistles combined with simple visual gestures.
      
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      He contended he could effectively communicate in emergencies with a whistle rather than hand signal to activate an emergency action plan, which modification had been proposed by the county's recreational specialist as an improvement for everyone.
      
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      Alternate communications were possible by using a few laminated note cards in his pocket for basic phrases, such as "I am deaf. I will get someone to assist you. Wait here.", and these were sufficient to respond to patrons, at least to a level considered "essential" for a lifeguard.
      
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    Even if Keith needed accommodations to perform the essential functions of the job, he had presented evidence that those accommodations were reasonable, such as:
    
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      the use of the note cards,
      
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      hand signals instead of whistles, and
      
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      providing ASL interpreter during staff meetings or classroom instruction.
      

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  It also ordered the lower court to examine the issue of whether the county conducted an adequate "individualized inquiry" in determining whether Keith's disability disqualified him from the lifeguard position. Though it did "not disagree" that the county had made an individualized inquiry, as required by the ADA, by observing Keith during training, proposing accommodations to integrate him into the lifeguard team, and planning to hire him, it questioned "what changed" afterward.
  

Title VII: gender, systemic hiring discrimination, pattern-or-practice, additional discovery, attorney fee, remand