Human resources & employment law cumulative case briefs

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  Of major interest is the matter of post-termination claims.
  
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  The EEOC is the first step for claims of violations of federal anti-discrimination statutes, even if they occur after termination or once formal court litigation has begun because federal courts lack jurisdiction to review Title VII claims that are not part of an EEOC charge timely filed with EEOC.
  
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  Timely filing, “discrete actions” defined. This is a legal term essential to analyzing cases that involve the cumulative effect of a pattern of repeated conduct, such as in a hostile work environment claim, when allegations involve acts occurring more than 300 days before a charge is filed. Each “discrete act” may constitute its own unlawful employment practice, which means a discrete act cannot be referred to in an existing claim or subsequent claim, and the federal court would not have jurisdiction over it, and thus ought to be dismissed.
  
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  Retaliation was alleged by the plaintiff to have been based on her filing of an unemployment compensation claim. Retaliation claims in statutory discrimination context require that the employee must have at the time been engaged in activity protected by such a statute, or have participated in or supported a protected person in a claim. There are exceptions to this, such as having filed a timely EEOC charge, etc. Also, retaliation claims can be based on action(s) outside of the workplace that might be regarded by a reasonable person as against him or her and harmful to that person.
  
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  If there is no direct evidence of discrimination, then the McDonnell Douglas evidentiary test may apply [Note: See the description of that test in numerous briefs in this collection, as well as in the formal opinion].
  
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  The appellate court did not accept the plaintiff’s theory that a promotion plus a raise would be evidence of discriminatory bias because the (female) employer didn’t fully embrace the merits of the employee’s skills and abilities.
  

[Comment: I hope that this outline will be of some assistance in reading and understanding this case. Another helpful resource for you may be the article discussing this case in the October 2011 issue of New Mexico Employment Law Letter published at www.HRHero.com. And if it seems to you that I struggled with this case, you’re right! ]

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   an employer can show it exercised reasonable care to prevent and promptly correct harassing behavior and
   
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   the employee unreasonably failed to take advantage of the preventive and/or corrective opportunities provided by the employer.
   

The hospital had an appropriate, adequately detailed sexual harassment policy, and the employee had received it been trained about it, and at the training session employees had been encouraged to report violations. The hospital took prompt remedial action. The employee failed to carry out her responsibilities and obligations under company policy.

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  Not long after starting her employment there, she and a Caucasian coworker got into a heated argument, after which they both filed internal company complaints of racial harassment against each other. Peace-Wickham was dissatisfied with the length of time it took DRBA to complete its investigation, even though it immediately reassigned the other worker after receiving the complaints.
  
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  Peace-Wickham also claimed that some of the café customers (mostly DRBA employees) made racially inappropriate remarks:
  

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  Overheard a customer who was unhappy with the way her meal was prepared remarked to another customer, "Back in the day, down South, blacks would have been hung for things like this."
  
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  Another customer remarked to Peace-Wickham that the café had "changed" since her arrival, which Peace-Wickham interpreted as racially motivated because the previous supervisor was Caucasian.
  
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  After a previous café supervisor left, also African American, someone posted a sign that read "free at last, free at last, thank god we are free at last." Peace-Wickham assumed the message was directed at her because she was the only remaining African American employed at the café.
  

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  She alleged that a customer had balled up receipts and thrown them at her;
  

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  About three months into her employment, Peace-Wickham complained of harassment by a Caucasian coworker, and things only got worse from then on.
  
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  She regularly complained that the café was understaffed and about how she was treated by customers and fellow employees.
  

She alleged she was denied a promotion because of her race and because she had previously filed charges.

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  The district court dismissed the case before trial by granting the employer’s motion for summary judgment.
  
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  The 3rd Circuit Court of Appeals affirmed the summary judgment in favor of the employer.
  

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  It was persuaded that the court record contained evidence of any overtly discriminatory statements or conduct by her supervisors. [Note that though overtly discriminatory statements or conduct isn't required to show intentional discrimination, the presence or absence of such conduct is helpful in determining the motive of the decisionmakers.] In this case, the court said the fact that Peace-Wickham couldn't point to any overtly discriminatory conduct on the part of her supervisors lent further support to the conclusion that they could not be held directly responsible for any hostile environment that may have existed.
  
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  On the important point of prompt remedial action, the court found that the DRBA took appropriate remedial steps to respond to her allegations of discrimination when it became aware of them.
  
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  Concerning her complaints that DRBA took too long to investigate and conclude her initial harassment claim, the court found it significant that DRBA revised its investigation procedures. Though DRBA did take longer to investigate her complaint than her coworker's, it addressed the issue immediately by separating the two employees.
  
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  DRBA also posted anti-harassment signs and instituted diversity and harassment training for all of its employees.
  

The court held that those measures fell "comfortably within the realm of legally adequate legal measures." It further stated that it was "unwilling to step into the shoes of DRBA management, as suggested by Peace-Wickham, and make highly particularized judgments as to whether the DRBA should have docked pay, demoted, or withdrawn certain fringe benefits instead of following the course of action chosen."

Numerous links are provided because if one doesn’t work for your computer, perhaps another one will.

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  Kathleen Hofferica, a registered nurse was approved for intermittent FMLA leave for her medical conditions of tinnitus, hearing loss and vertigo.
  
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  She took extended FMLA leave starting in September 2008 for treatment for those medical problems, and she expected to return by November 6, 2008.
  
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  She alleged that during her leave she and her husband regularly provided her direct supervisor with leave updates, but for some reason her supervisor often failed to return the calls.
  
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  In early November, she provided a return to work certification clearing her return for November 13, and she contacted her supervisor to ask for a "modest" extension through November 13, but the supervisor again did not return her call.
  
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  Rather, the Medical Center sent her a letter informing her that her employment had been terminated because she failed to return to work on November 6 when her FMLA leave allotment had been exhausted.
  

Hofferica alleged discrimination and retaliation for taking FMLA leave. Before trial, her employer moved for summary judgment (i.e., a claim that there were no facts about which a reasonable jury could disagree). In rejecting that contention, the trial judge ruled that the case should be heard by a jury and denied the employer’s motion. You can read the full memorandum at the URL links cited for this case. There, the trial court found that the supervisor's failure to return phone calls was evidence of "an antagonistic attitude toward the employee, particularly where such behavior started after she began her FMLA leave, and continued “despite regular communications from the employee", ruled that testimony and evidence of that misbehavior could be used at trial as evidence of retaliation.

Cracker Barrel Old Country Store, Inc. v. Cincinnati Insurance Co., 3:07-cv-00303 (M.D. TN 8/11/11) [enhanced lexis.com version].

ADA: not qualified, unable to achieve reasonable company requirements related to position, no reasonable accommodation; evidence, direct, indirect, McDonnell Douglas test, documentation of warning and counseling
Illustrative; not controlling law. To be covered by the ADA an individual must be qualified to perform the essential functions of the position, with or without reasonable accommodation.

Job descriptions of essential functions must be accurate and related to business necessity [Note: You’d be surprised at how many of the companies I train or consult with do not have accurate job descriptions]. To prevail in an ADA claim, the claimant must be able to prove that he/she was qualified to perform that job in a satisfactory manner, with or without accommodation.

To some extent the case was complicated when he asked what he could do to gain promotion, and the response was “you should not be suing your employer”, which he claimed was direct evidence of discrimination. However, the indirect evidence under McDonnell Douglas convinced both the trial and appellate courts determined there were was no ADA discrimination.

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  early in the litigation process the preliminary injunction was granted, and
  
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  at trial the jury decided in her favor and award:
  
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    $1,000,000 in compensatory damages against the hospital on her hostile environment claim,
    
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    $600,000 against the hospital in compensatory damages on her retaliation claim, and
    
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    $20,000 against Day personally for economic harm on a “tortuous interference with business” claim.
    
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  Following this verdict, the trial judge entered a permanent injunction, keeping the hospital from withdrawing her privileges at the hospital.
  

The hospital appealed on all counts, and the First Circuit upheld the jury’s verdict, as well as the permanent injunction:

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  It found that the evidence showed Day had frequently questioned her authority by:
  
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    calling her a “little girl”, and
    
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    asking whether she really could do a “big operation.”
    
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  It upheld allowing evidence at trial that included incidents outside of the applicable 300­day statute of limitations, i.e., it upheld the trial court admitting evidence to the jury of Day’s behavior over the course of her employment, and not simply behavior within the 300 days prior to her first formal claim. This is the “continuing violation” theory: if an act contributing to the claim occurs within the filing period, the entire time period of the alleged hostile environment can be considered by the jury for purposes of determining liability.
  

NLRB: unwinding organizing activity; challenging union status after merger or sale of a company; appropriate size of bargaining unit to be organized