Human resources & employment law cumulative case briefs

Download 5.55 Mb.

Page	83/108
Date	18.10.2016
Size	5.55 Mb.
	#2406

1 ... 79 80 81 82 83 84 85 86 ... 108

Controlling law.

Controlling law. Because this decision is of interest primarily to litigation attorneys, it is noted here but not briefed. Rodriquez v. Wet Link, LLC, 2010 U.S. App. LEXIS 8594 (10^TH Cir., 2010 [enhanced lexis.com version].
Title VII, Retaliation: poor performance, not discrimination; adequate documentation showed no pretext
Controlling law. A history of poor performance by the employee, plus adequate documentation by the employer’s efforts to warn, counsel and document to help the employee improve his performance, were sufficient to enable this employer to win on the summary judgment ordered by the trial court that was affirmed by the appellate court.
Anderson v. AOL, LLC, No. 09-6036 (10th Cir., 1/27/10); 2010 U.S. App. LEXIS 1813; 108 Fair Empl. Prac. Cas. (BNA) 953 [enhanced lexis.com version].
This case, the one following and the article about evaluation difficulties demonstrate (1) the need for adequately warning employees of performance deficiencies, (2) counseling them about how to improve and offering assistance with that process, and (3) appropriately documenting them.
Todd Anderson had and long and problematic history of poor performance, most notable of which were:

vocal and negative reactions to the employer’s employment decisions,
perceptions by coworkers about him and his lack of leadership,
his inability to serve as a leader and also to provide accurate information for his team, and
his behavior in the open call center floor on the day he was fired, e.g., that several AOL employees were not qualified for their positions, , plus statements about the sexual orientation of one employee and reference to another employee as a sexual offender.

The employer had a well documented record of warning and counseling Anderson in its efforts to assist him to change his behavior and improve his performance. That was sufficient to show to the courts a valid business purpose for terminating his employment, and his contentions of discriminatory actions by the employer were carefully examined and rejected.

ADEA: no discrimination, adverse employment action, inability to get along with co-workers, adequate documentation
Illustrative; not controlling law. This employee’s inability to get along with co-workers was held to be sufficient basis for taking the adverse employment action of not rehiring him after a reduction in force layoff. Often employers are reluctant to take an adverse employment action against an employee who is in a class that is protected against discrimination. One example that immediately comes to mind is an ADA situation involving an employee with an emotional or psychological problem who acts inappropriately in the workplace, and the solution is to focus on the behavior and not the condition or status. In this unpublished opinion of the 6^th Circuit Court of Appeals case Lucent Technologies employee Brian Viergutz, age 43, had worked with the company since 1997 as an installer. In late 2003 he was laid off as part of a RIF. He admitted that over the course of his employment with Lucent he had numerous personal conflicts with his fellow employees. As you will recall, proof of indirect evidence of discrimination involves a three-step process: (1) proof by the employee of being in a protected class and qualified for the job, (2) a showing by the employer of a valid business purpose for the adverse employment action, and (3) proof by the employee that the employers stated purpose was a pretext to cover up discrimination. Because of his turbulent and contentious work history Viergutz failed to prove pretext. Viergutz v. Lucent Technologies, Inc., No. 08-3626, unpublished, 6^th Cir., 4/23/10).; 2010 U.S. App. LEXIS 8491; 2010 FED App. 0250N (6th Cir.); and from More Law Lexapedia: http://www.morelaw.com/verdicts/case.asp?n=08-3626&s=OH&d=43632, an excellent resource [enhanced lexis.com version].
Evaluations: pitfalls and malpractice article
Here is an excellent article from LAW 360 on why to not have periodic evaluations:

http://www.littler.com/PressPublications/Documents/Law360.com-05112010.pdf.
Annual Evaluation Systems and Malpractice, May 2010, by David M. Wirtz, Employment Law360, May 10, 2010. In this article, David M. Wirtz, a shareholder in Littler's New York City office, advises employers on the pitfalls of annual evaluations systems. "Employers can also train supervisors to evaluate their employees honestly until they’re blue in the face, but, the unfortunate truth is, they will not do it, and there are equally immutable forces of nature at work to explain why they won’t," writes Wirtz.
[Note: Seriously consider using a “warn, counsel, and document” approach as problems arise. From my training materials:

Corrective action means assisting the employee to modify behavior to meet company or agency standards, and it helps to focus attention on the process of correcting deficiencies as they occur in order to help the employee to succeed – which investigators, hearing officers, judges and juries should be hearing and seeing.
Adverse employment action means steps affecting pay, benefits, tenure, continued employment, and things of a very serious nature.

To maintain objectivity, bear in mind this outline for documentation:

Rules = policies and procedures that apply to the deficiency, i.e., job description and performance standards
Facts = accurate description and definition of the problem that the employee can understand and act upon (what, who, when, where and why)
Goals = what the employee needs to do to rectify the problem
Solutions = suggested methods for achieving the goals
Consequences = what to expect if the deficiency is not taken care of
Follow-up and feedback = advise the employee on progress

For this subject we will be referring to an excellent book: Documenting Discipline, by Mike Deblieux, ISBN 1-884926-34-7,

Provant Media Publishing Company, 4601 121st Street, Urbandale, IA 50323-2311; (888) 776-8268

Or from Coastal Training Technologies Corp., 88 pages, Model #: LGL007-MAN-ENG-0000, $14.95, www.coastal.com

ERISA: garnishment, federal law, state law
Controlling law. This case will be of interest primarily to litigators, so it is not briefed beyond this notice of its publication and posting of how to locate the full text of the decision online.
{1} Wrongfully denied her disability benefits, a former employee obtained a judgment against her employer’s long-term disability plan based on rights accorded under the federal Employee retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 to 1461 (2000). The employee seeks to enforce that judgment by way of a writ of garnishment against the insurer whose insurance policy funded the employer’s disability plan. The district court granted the writ of garnishment against the insurance company, but the Court of Appeals reversed, concluding that the employee’s case did not fit its understanding of the proper scope of garnishment under state law. We reverse the Court of Appeals, uphold the writ of garnishment against the insurer, and remand to the Court of Appeals for further proceedings.
http://www.nmcompcomm.us/nmcases/NMSC/2010/10sc-014.pdf;

ftp://nmbar.nmbar.org/BB_05-03-10.pdf [enhanced lexis.com version].
Title VII: break policy, gender discrimination, retaliation, adverse employment action, minor workplace slights and annoyances; summary judgment for employer
Illustrative: not controlling law. Over the years courts have noted that the anti-discrimination laws are not intended to address civility or minor annoyances in the workplace. This case is one example of the meaning of an “adverse employment action” and the types of actions not recoverable under Title VII - minor workplace slights or trivialities, such as coffee breaks and temporary job changes, are not prohibited by the law. Generally, courts have defined an “adverse employment action” as:
one that affects or alters “the conditions of the workplace” and typically involves “discrete changes in the terms of employment,” such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.

Angel David Morales-Vallellanes (“Morales”) had started with the post office as a Distribution and Window Clerk. Because of pain from an arm injury he usually was limited back-office distribution duties and rarely window duties. His EEOC claim was that after complaining about the break coffee policy - Irene was allowed longer coffee breaks than he was allowed - he was retaliated against:

Morales alleged that his supervisor monitored all employees to ensure that they clocked in and out for breaks.
His back-office duties were temporarily reassigned to Irene and he was given window duties to perform.
When he expressed interest in bidding for a Distribution and Window Clerk position that was expected to include Saturdays and Sundays off, a highly desirable schedule, the USPS reclassified and posted the position with Thursdays and Sundays off, and that USPS changed the posting to dissuade him from bidding for the position in retaliation for complaining about alleged gender discrimination.

The EEOC dismissed his charges, the district court ordered summary judgment to the employer, and the appellate court affirmed that order. Morales-Vallellanes v. Potter, No. 08-2452, 08-2452 (1st Cir., 5/11/10); 2010 U.S. App. LEXIS 9569; http://case.lawmemo.com/1/morales.pdf [enhanced lexis.com version].

ADA: recovering addict, methadone; essential functions of job, individualized assessment required; “direct threat”, lack of evidence
Illustrative; not controlling law. This EEOC claim on summary judgment and will proceed to trial by jury because the federal district trial court ruled that the employer failed to make an adequate individualized assessment of whether the recovering drug addict on a methadone prescription could safely perform the essential functions of a production worker in a copper mill. Further, the employer failed to provide evidence that the employee posed a “direct threat to other workers because of his use of methadone. This is yet another case of snap and uninformed decisions being made without sufficient expert information. Because of the extensive details of this decision, it is essential to read the entire case for all of the important details of this employer’s errors and omissions. EEOC v. Hussey Copper Ltd., 22 A.D. Cases (BNA) 1821 (W.D. Pa, 3/10/10); http://www.jacksonlewis.com/legalupdates/article.cfm?aid=2062 [enhanced lexis.com version]. [Note: If for some reason you are unable to retrieve this Jackson Lewis law firm article, contact me for a PDF copy I have retained.]
ERISA: judicial review, plan administrator's interpretation generally is entitled to deference
Controlling law. Generally, this United States Supreme Court decision protects discretionary authority of benefits plan administrators, subject to limits on an administrator's ability to re-interpret the plan where there might be either lack of good faith or multiple unsuccessful interpretations of the same plan. Read the full case for all of the details and confer with experienced benefits legal counsel. This decision was based on an earlier USSC case, Firestone Tire & Rubber Co. v. Bruch, that analogized to principles of trust law: if the trust documents gave the trustee "power to construe disputed or doubtful terms, ... the trustee's interpretation will not be disturbed if reasonable." In Metropolitan Life Ins. Co. v. Glenn, it had held that a deferential standard of review remains appropriate even in the face of a conflict when the terms of a plan grant discretionary authority to the plan administrator. Conkright v. Frommert, No. 08–810 (USSC, 4/21/10); 2010 U.S. LEXIS 3479; http://www.supremecourt.gov/opinions/09pdf/08-810.pdf [enhanced lexis.com version].
Title VII: gender hostile work environment, retaliation, reprisal, adverse employment action; constructive discharge, “voluntary
Controlling law. This is an important case for our jurisdiction that appears to make a significant change in defining an “adverse action” when proving discrimination and constructive discharge. Accordingly, read this case carefully for all of the details.
Barone v. United Airlines, No. 08-1348 (10^th Cir., 12/7/09); 2009 U.S. App. LEXIS 26524; 107 Fair Empl. Prac. Cas. (BNA) 1798; http://www.ca10.uscourts.gov/opinions/08/08-1348.pdf [enhanced lexis.com version].
Mary Barone started her employment with United Airlines in 1995. As of October of 2005 she was promoted to manager of business administration for the Denver station, and her duties included conduction investigations to correct problems with pay and other systematic problem and report on them, which she did, but apparently to the annoyance of her supervisor, Todd Sprague. Problems she reported included gender pay disparities. When she bought these situations to Sprague’s attention he told her to “look the other way” and to either “throw . . . away” or “delete” her reports of that. He would also talk demeaningly to female employees. His evaluations of her performance were excellent, but told her in person the she was “nor doing anything right.” At a meeting on August 17, 2006, he gave her two options: (1) move to Orange County as a part-time customer service agent or (2) resign. She chose to resign, but later requested to be reinstated, which the company rejected. Controversy in this case involved whether her resignation was voluntary, had she been constructively discharged , had she been subjected to a hostile work environment, and was the action by the company adverse? The appellate court determined that Barone actually took an adverse employment action rather than having merely threatened and that presenting the “choice” created a hostile work environment. It held she had proved a first stage case of discrimination, which left for showing at trial by the company that it had a legitimate business reason for its adverse employment action, and of course she would be entitled to show that proffered reason was actually a pretext for discrimination.
[Thus, this 10^th Circuit case has changed its standard of proof for constructive discharge to a less demanding level for a plaintiff.]
Tribal Law: Navajo Preference in Employment Act (NPAA), Office of Navajo Labor Relations (ONLR)
The NPAA applies to any employer doing business within the Navajo Nation or engaging in a contract with the Navajo Nation, and it is administered by the ONLR. Major requirements include:

Employers must create a written affirmative action plan with the goal of employing Navajos in all job classifications, including managerial positions, and ONLR generally works with organizations to develop and implement an acceptable plan based on the type of work involved.
Employers must:
- include a Navajo employment preference policy statement in all job announcements and advertisements,
- use Navajo Nation employment sources and job recruitment services, and
- advertise with at least one Navajo Nation newspaper and radio station and post a Navajo preference policy prepared by the ONLR on the job site.
Navajos who demonstrate the necessary qualifications for employment must be hired over non-Navajos.
Employers must promote qualified Navajos over non-Navajos and, if the situation occurs, retain Navajos over non-Navajos during layoffs.
- An employer cannot take adverse employment actions against Navajo employees without “just cause”, and the NPEA requires written notification outlining the reasons for any adverse action taken. Rulings of the Supreme Court of the Navajo Nation should be reviewed carefully with experienced legal counsel, but just cause is a broad concept that includes a wide range of employer justifications.
  - Generally, written policy violations by an employee may be sufficient cause if the employee understands the nature of the violation and the consequences for his actions.
  - However, ambiguous policies, e.g., harassment or other complex situations, may necessitate previous adequate training if violations are contended to be reasonable notice of grounds for an employee’s termination.

Office of Navajo Labor Relations: (928) 871-6800/6294; (928) 871-7088.
ADA: work schedule; best practices, request for reasonable accommodation, failure to consider
Illustrative; not controlling law, but a good illustration of something some employers may overlook. If a request for accommodation is made, it must be explored interactively with the employee to determine if it is reasonable. If it is not, then it need not be made. However, the mistake in this case was that the employer rejected the request without checking on whether it was reasonable. An employee who developed vision impairments and was no longer able to drive in dark conditions requested an accommodation to her work because she lived in an area without reliable public transportation or taxis. Generally, she worked the 9 a.m. to 2 p.m. shift, and as an accommodation she requested that she not be assigned shifts that would require driving in darkness. Her supervisor flatly and immediately refused on the grounds that it “wouldn’t be fair” to other employees. Even after supplying a note from her physician her request was denied. A request from her union representative for accommodation also was rejected. Lesson: Though an employer does not have a duty to provide an employee with transportation to or from work, an employer does have a duty, where reasonable, to accommodate an employee by changing the times that the employee is required to be at work. Such inquiry should examine the totality of the circumstances and resources of the employer. Colwell v. Rite Aid Corp., No. 08-4675 (3^rd Cir., 4/8/10); 2010 U.S. App. LEXIS 7249; http://www.ca3.uscourts.gov/opinarch/084675p.pdf [enhanced lexis.com version].
ADA: medication side effects may cause disability; joint employment
Illustrative; not controlling law (3^rd, 7^th, 8^th, and 11^th). A morbidly obese electronics technician suffering from sleep apnea was taking a prescription of weight loss. A side effect of that medication was frequent urination that necessitated frequent long restroom breaks. Potentially, there was a question of whether he was in a status of joint employment. After being informed of plans to transfer him to a different work group the employee brought a note from his doctor stating that his medication was being changed and the breaks would be less frequent. Nevertheless, his supervisor decided to move him out of his work group and to perform other duties. No other similar jobs were available, so the employee accepted a “voluntary” layoff and found employment elsewhere. He then sued under the ADA and the Rehabilitation Act, arguing that the two companies involved were his “joint employer” and that he had been laid off because of a disability or perceived disability.
Sulima v. Tobyhanna Army Depot, No. 08-4684, (3^rd Cir., 4/12/10); 2010 U.S. App. LEXIS 7459; http://www.ca3.uscourts.gov/opinarch/084684p.pdf [enhanced lexis.com version].
The federal district trial court granted summary judgment to both defendants on the grounds that there was no joint employment. It further ruled that the employee had failed to raise a triable issue of fact under the ADA against his actual employer. The appellate court affirmed those lower court rulings because although the adverse side effects of Sulima’s medication could have caused an impairment that rose to the level of a “disability” under the ADA, that category of disability is subject to certain limitations.
Lesson: Employers should not confuse the issue whether a side effect is a disability with the general issue of whether medications are “mitigating measures.” As you may recall, one of the specific purposes of the amendments to the ADA [ADAAA, effective in January 2009], is that the question of whether an impairment is “substantially limiting” under the ADA must be judged “without regard to the ameliorative effects of mitigating measures,” which might include mediations. In situations in which an individual’s medication ameliorates or erases the limitations of a physical or mental disability, an analysis of whether that person is disabled must be made without reference to the medication’s effects. However, that provision does not include situations, like Sulima’s, in which a plaintiff claims disability only as a result of the side effects of medical treatment for a health condition that, standing alone, does not constitute a disability in and of itself. Thus, in Sulima’s situation, the medication is the issue the side effects of it may render an individual “disabled” for purposes of the Americans with Disabilities Act, even though the underlying condition for which the medication was prescribed does not.
Title VII: sexual harassment, proper training provided, failure to report
Illustrative; not controlling law from this federal circuit, but controlling under United States Supreme Court precedent. This is just a reminder that if an employer has provided adequate training in the laws and its policies and procedures to prevent harassment, and if that has been adequate, then under the Faragher/Ellerth cases (USSC precedent) an employer can have an affirmative defense against a claim of harassment if the alleged victim has failed to take advantage of those prevention and reporting procedures. Employees need to be informed of or reminded of this in their harassment training. Balding-Margolis v. Cleveland Arcade, d/b/a Hyatt Regency Cleveland, No. 09-3017, (6th Cir., 11/9/09) 352 Fed. Appx. 35; 2009 U.S. App. LEXIS 24604; 2009 FED App. 0732N (6th Cir.); http://www.ca6.uscourts.gov/opinions.pdf/09a0732n-06.pdf [enhanced lexis.com version].
ADA: alcoholism, failure to call in as required
Illustrative; not controlling law. Treatment for alcoholism is protected by the ADA, but behavior is not protected. This employee failed to follow the company’s written policy requiring employees to call when they will not be reporting for work, and his violation of PSEG's "no call/no show" policy was the reason for firing him. The ADA specifically permits employers to "hold an employee... who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the... alcoholism of such employee." 42 U.S.C. §12114(c)(4). VandenBroek v. PSEG Power CT LLC, No. 09-1109-cv (2^nd Cir.,12/11/09); 2009 U.S. App. LEXIS 26965; 22 Am. Disabilities Cas. (BNA) 1304: http://scholar.google.com/scholar_case?case=14813311118990412938&q=VandenBroek+v.+pseg&hl=en&as_sdt=10000000002&as_vis=1 [enhanced lexis.com version]; also see Ritenour v.Dept of Human Services, No. 3:09-0803 (U.S.D.C., Middle District, Nashville Division); http://www.fmlainsights.com/Ritenour%20v%20Tenn%20Dept%20of%20Human%20Services%20FMLA%2010-4-2010.pdf [enhanced lexis.com version].
ADA: work schedule; best practices, request for reasonable accommodation, failure to consider
Illustrative; not controlling law, but a good illustration of something some employers may overlook. If a request for accommodation is made, it must be explored interactively with the employee to determine if it is reasonable. If it is not, then it need not be made. However, the mistake in this case was that the employer rejected the request without checking on whether it was reasonable. An employee who developed vision impairments and was no longer able to drive in dark conditions requested an accommodation to her work because she lived in an area without reliable public transportation or taxis. Generally, she worked the 9 a.m. to 2 p.m. shift, and as an accommodation she requested that she not be assigned shifts that would require driving in darkness. Her supervisor flatly and immediately refused on the grounds that it “wouldn’t be fair” to other employees. Even after supplying a note from her physician her request was denied. A request from her union representative for accommodation also was rejected. Lesson: Though an employer does not have a duty to provide an employee with transportation to or from work, an employer does have a duty, where reasonable, to accommodate an employee by changing the times that the employee is required to be at work. Such inquiry should examine the totality of the circumstances and resources of the employer. Colwell v. Rite Aid Corp., No. 08-4675 (3^rd Cir., 4/8/10); 2010 U.S. App. LEXIS 7249; http://www.ca3.uscourts.gov/opinarch/084675p.pdf [enhanced lexis.com version].
ADA: medication side effects may cause disability; joint employment
Illustrative; not controlling law (3^rd, 7^th, 8^th, and 11^th). A morbidly obese electronics technician suffering from sleep apnea was taking a prescription of weight loss. A side effect of that medication was frequent urination that necessitated frequent long restroom breaks. Potentially, there was a question of whether he was in a status of joint employment. After being informed of plans to transfer him to a different work group the employee brought a note from his doctor stating that his medication was being changed and the breaks would be less frequent. Nevertheless, his supervisor decided to move him out of his work group and to perform other duties. No other similar jobs were available, so the employee accepted a “voluntary” layoff and found employment elsewhere. He then sued under the ADA and the Rehabilitation Act, arguing that the two companies involved were his “joint employer” and that he had been laid off because of a disability or perceived disability.
Sulima v. Tobyhanna Army Depot, No. 08-4684, (3^rd Cir., 4/12/10); 2010 U.S. App. LEXIS 7459; http://www.ca3.uscourts.gov/opinarch/084684p.pdf [enhanced lexis.com version].
The federal district trial court granted summary judgment to both defendants on the grounds that there was no joint employment. It further ruled that the employee had failed to raise a triable issue of fact under the ADA against his actual employer. The appellate court affirmed those lower court rulings because although the adverse side effects of Sulima’s medication could have caused an impairment that rose to the level of a “disability” under the ADA, that category of disability is subject to certain limitations.
Lesson: Employers should not confuse the issue whether a side effect is a disability with the general issue of whether medications are “mitigating measures.” As you may recall, one of the specific purposes of the amendments to the ADA [ADAAA, effective in January 2009], is that the question of whether an impairment is “substantially limiting” under the ADA must be judged “without regard to the ameliorative effects of mitigating measures,” which might include mediations. In situations in which an individual’s medication ameliorates or erases the limitations of a physical or mental disability, an analysis of whether that person is disabled must be made without reference to the medication’s effects. However, that provision does not include situations, like Sulima’s, in which a plaintiff claims disability only as a result of the side effects of medical treatment for a health condition that, standing alone, does not constitute a disability in and of itself. Thus, in Sulima’s situation, the medication is the issue the side effects of it may render an individual “disabled” for purposes of the Americans with Disabilities Act, even though the underlying condition for which the medication was prescribed does not.
Title VII: sexual harassment, proper training provided, failure to report
Illustrative; not controlling law from this federal circuit, but controlling under United States Supreme Court precedent. This is just a reminder that if an employer has provided adequate training in the laws and its policies and procedures to prevent harassment, and if that has been adequate, then under the Faragher/Ellerth cases (USSC precedent) an employer can have an affirmative defense against a claim of harassment if the alleged victim has failed to take advantage of those prevention and reporting procedures. Employees need to be informed of or reminded of this in their harassment training. Balding-Margolis v. Cleveland Arcade, d/b/a Hyatt Regency Cleveland, No. 09-3017, (6th Cir., 11/9/09) 352 Fed. Appx. 35; 2009 U.S. App. LEXIS 24604; 2009 FED App. 0732N (6th Cir.); http://www.ca6.uscourts.gov/opinions.pdf/09a0732n-06.pdf [enhanced lexis.com version].
Title VII: periodic training, identifying different kinds of harassment, ignoring possible harassment, “ostrich syndrome”, “knew or should have known”, “constructive knowledge”, duty to act, prompt investigation, prompt remedial action, separate possible harasser and possible victim
Illustrative; not controlling law. This recent the Second Circuit Court of Appeals decision reminds us of the importance of providing and requiring participation in periodic harassment training of supervisors to ensure that they know about different kinds of harassment and remember to act in response to either suspected but unreported harassment or actual harassment complaints even in the absence of a formal complaint or details from the complaining employee. Briefly stated, the key facts were:

Duch engaged in a single consensual sexual encounter with a male coworker named Kohn,
Following that she told him the encounter had been a mistake that she did not wish to repeat [Note: Further advances would thus be unwelcome and constitute sexual harassment.].
Despite this information Kohn made a series of sexual advances towards Duch in the following months, including unwanted physical contact, sexually graphic language, and physical gestures.
On a Saturday when Duch was scheduled to work alone with Kohn she asked Jakubek, her supervisor, to change her schedule so she that would not have to work that day. Jakubek asked Kohn why Duch would be uncomfortable working with him. In response Kohn said, “[M]aybe I did something or said something that I should not have.”
Jakubek was aware that Kohn had engaged in sexually related misconduct toward women in the past and told Kohn to “cut it out, to grow up.”
Jakubek asked Duch if she had a problem working with Kohn, and she became emotional and said, “I can’t talk about it”, to which he responded, “That’s good because I don’t want to know what happened.”
Jakubek changed Duch’s schedule as she requested, and he did not schedule her to work alone with Kohn on any other occasions.
However, Duch later contended that Kohn’s harassment persisted and escalated in the following months.
Months later, management investigated her complaint after she complained to others about Kohn’s sexual harassment.

It is important for employers to know and remember that liability for harassment [of any kind] can be imputed to an employer where the plaintiff can demonstrate either (1) that the employer knew about the harassment or (2) in the exercise of reasonable care should have known about the harassment and failed to act promptly to stop it. Duch v. Jakubek, 07-cv-3503, 588 F.3d 757 (2^nd Cir., 12/4/09); 2009 U.S. App. LEXIS 26336; 107 Fair Empl. Prac. Cas. (BNA) 1576; 92 Empl. Prac. Dec. (CCH) P43,751; http://www.ca2.uscourts.gov/decisions/isysquery/59cea196-34c4-44e7-a8d5-bb199d8a627c/1/doc/07-3503-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/59cea196-34c4-44e7-a8d5-bb199d8a627c/1/hilite/ [enhanced lexis.com version].
ADA: medical intern, unable to perform essential functions of job, not a qualified individual
Illustrative; not controlling law. A first year medical intern was determined as unable to perform the essential functions of his job:

misdiagnosed patients,
mistakenly identified a patient as dead,
prescribed inappropriate medications or incorrect dosages, and
was “extremely argumentative” with his supervisors and co-workers.

The medical center provided accommodation by:

allowing him to see fewer patients with less complex medical issues,
asking residents to help him with his workload, an
excusing him from participating in certain internship program requirements.

Even with these accommodation [Note: Probably more than reasonable] he continued to have problems. His diagnosed condition turned out to be Attention Deficit Disorder (ADD) with “significant impairment in visual-spatial reasoning and visual memory.” Thus he was not a qualified individual with a disability under the provisions the Americans with Disabilities Act. Shin v. Univ. of Maryland Medical System Corporation, No. 09-1126 (4^th Cir., 3/11/10); 2010 U.S. App. LEXIS 5177; http://pacer.ca4.uscourts.gov/opinion.pdf/091126.U.pdf [enhanced lexis.com version].
Title VII: race, discrimination, hostile work environment, severe and/or pervasive, failure to pursue claim
Illustrative; not controlling law. At least three factors defeated this claim of discriminatory behavior over a 14 month period:

the behavior was neither severe nor pervasive (it was occasional),
the employee failed to adequately pursue his complaint with his supervisors, and
he failed show it impaired his work performance [a reasonable person would no chose to continue to work under such conditions].

Ford v. Minteq Shapes and Services, Inc., No. 09-2140, 587 F.3d 845 (7^th Cir., 11/24/09); 2009 U.S. App. LEXIS 25695; 107 Fair Empl. Prac. Cas. (BNA) 1446; http://www.ca7.uscourts.gov/tmp/WL1FFXG9.pdf [enhanced lexis.com version].
FLSA amendment [to Section 7] now requires breastfeeding breaks and a place to take them
The Patient Protection and Affordable Care Act [the 2010 BIG one], among other things, provides in § 4207, an amendment to Section 7 of the FLSA, Reasonable Break Time for Nursing Mothers, requiring that an employer shall provide:
(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth; and

(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

Exceptions are:

employers are not required to pay employees who take a breastfeeding break—unless there is a state law that requires otherwise, and
an employer with less than 50 employees is exempt from the requirements if the requirements would “impose an undue hardship” by causing it “significant difficulty or expense” as compared to the employer’s size, resources, and the structure of its business.

ADA: misconduct, driving while intoxicated (DWI), police chief, license suspended, essential functions of position, misbehavior rather than condition

Illustrative; not controlling law. There is an important difference between how an employee behaves and what might be his diagnosed disorder. For example, drinking too much can be an error in judgment, whereas alcoholism can be a “disability” under the ADA when it substantially limits an individual's major life activities. In this case the employee lost his driving license for DWI. Driving was an essential function of his job, which was no longer able to do (at least for a while), and thus he was not a qualified individual because he could not perform an essential function of the job as required by the ADA.
Charles H. Budde was Chief of Police of the Kane County Forest Preserve. One night, when not on duty, he drank about four or five glasses of wine and had a blood alcohol level of 0.23. On the way home from the Moose Lodge he caused a car wreck. As a result, among other things, his driver’s license was suspended. He was placed on administrative leave and ultimately was fired for (1) engaging in conduct below the standard for his position and (2) being unable to perform an essential function of his position, i.e., to drive a police car because his driving license was suspended.
Though the ADA generally considers conduct resulting from a disability to be part of the disability, rather than a separate basis for termination, an exception exists for cases of alcoholism and illegal drug use. Intoxication while on duty can be cause for termination, even if the employee is an alcoholic. Employers can control behavior and safety problems in the workplace. Because driving was an essential function of Budde’s job, he did not have a valid driving license, and thus he was not a qualified individual under the ADA. He had claimed he was entitled to an accommodation, but there wasn’t a reasonable one that could be made under these circumstances [Note: An alcoholic employee who is not intoxicated at work may have the right to reasonable accommodation in the form of time off for treatment or rehabilitation.] Budde v. Kane County Forest Preserve, No. 09-2040 (7^th Cir., 4/4/10); 2010 U.S. App. LEXIS 4532; http://www.ca7.uscourts.gov/tmp/WO0JUJ2D.pdf [enhanced lexis.com version].
[Note: There are similar situations, such as those involving mental disorders, that cause behavior problems at work. When misbehavior is the cause for an adverse employment action, rather than the underlying condition itself, then some courts have held there is not an ADA violation. However, the prudent action for employers is to consult with their experienced employment law attorneys to determine the appropriate course of action, because these kinds of cases can be very complicated.]
Title VII: religion, loose clothing (khimar), safety concerns
Illustrative; not controlling law. Safety concerns prevailed over protections of religious apparel because the employer’s plant safety policy prohibited wearing loose clothing that might become entangled in moving machinery. That policy was consistently strictly enforced against all employees. A khimar is a traditional garment worn by Muslim women that covers the hair, forehead, sides of the head, neck, shoulders, chest, and sometimes extends down to the waist. There was no available alternative position for this temporary worker because shifting production needs required employees to be available to work in any position in the plant. EEOC v. Kelly Servs., Inc., No. 08-3880 (8^th Cir., 3/25/10); 2010 U.S. App. LEXIS 6173; http://www.ca8.uscourts.gov/opns/opFrame.html [enhanced lexis.com version].
FICA: is severance pay subject to tax withholding?
This is an alert, not controlling law. Check with your legal counsel for advice on this matter. A federal district court in the district of Michigan ruled that severance payments were not wages subject to Social Security and Medicare taxes ("FICA" taxes). This is an interesting question and this case has generated considerable interest and activity because it appears to conflict with a decision of the 8^th Court of Appeals [which includes Michigan], and it is likely to be challenged by the Internal Revenue Service (IRS). United States v.2010 U.S. Dist. LEXIS 15825 (W.D. Mich., 2/23/10); see an article at http://www.faegre.com/showarticle.aspx?Show=11151 [enhanced lexis.com version].
FMLA: reprisal, timing, evidence of workload, employer’s lack of documentary evidence, question for jury
Illustrative; not controlling law. Year-end holiday sales results were very low, and the employer decided to layoff some employees. In one instance, the timing of this adverse employment action was questionable because the discharge of the marketing communications specialist occurred on the day she returned from FMLA maternity leave to a stack of work. Summary judgment was denied to the employer because:

of timing in relation to her FMLA leave,
lack of documentary evidence that the employer would save money by eliminating her position, and
evidence showed her workload and duties had not diminished at the time of her FMLA leave.

Mastin v. Sysco Food Servs. of Detroit LLC, No. 2:2008cv13369 (U.S.D.C.E.D.MI., 3/24/10)
FLSA: exempt employee, deductions for partial days of absence
Illustrative; not controlling law. Treating exempt employees like hourly employees can result in loss of exemption for not only that particular employee, but also for all employees in that classification. This employer had a practice of docking the pay of exempt employees during plant shutdowns, i.e., partial-day absences, and it lost the exemption. Also, the employer was denied protection of the “window of correction” provided under the FLSA’s white-collar regulations because its violations were not the result of a mistake. Scholtisek v. Eldre Corp., (U.S.D.C.WD.NY., 3/22/10). [Note: This question frequently arises in my training classes, so apparently it is important to remind ourselves about this important point.]
ADEA: reduction in force (RIF); termination, conflicting performance evaluations, pretext

Download 5.55 Mb.

Share with your friends:

1 ... 79 80 81 82 83 84 85 86 ... 108