Don’t Expect a Party When Returning from a FMLA absence

A court ruling reported today reminded me of a call I received many years ago from a potential client.

She, sadly, had a health condition that was interfering with her ability to work. She felt the company should accommodate her condition, and the accommodation she wanted was to be able to wake each day, assess her physical state, and then call the office and let them know if she would be able to work that day. She estimated that she would be able to work one and sometimes two days per week, but she anticipated there might be several weeks in a row that she would not be able to work at all.

I explained that I did not believe any court would require that level of accommodation. Indeed, I could not imagine how that would work. She worked in a position that required her presence. So as not to give away too many details, let’s just say her position was akin to the dispatcher at a shipping company. If she wasn’t there, the trucks didn’t move. So on the three or four days per week she would not be there, the company would have to bring in someone to fill her position. It would have to hire another full time dispatcher, and tell that person to stay home on those few days the caller was able to work.

I said to her, “basically, given the few days you are able to work, you’re asking for an accommodation whereby you stay home and the company mails you checks.” To which she responded, “No, I would want direct deposit.”

I hear extreme accommodation requests like this on a regular basis.

In another case, a worker had persuaded her company to allow her to work from home. She had no health issues of any sort, but just wanted to be home with her family more. The company allowed the arrangement for two years, but then decided it would prefer the worker to work out of the office.

She wanted to sue, claiming a failure to accommodate. Had she developed some health issue in the interim, you ask? No, her position was that in the two years she had been able to work from home, she had developed a lifestyle that permitted her to pick her kids up from school and avoid the commutes to work, and she felt that working out of the office was an unreasonable hardship.

In today’s case, the plaintiff apparently felt that having to work was annoyingly interfering with not having to work. The case was Debra Checa v. Drexel University, out of Pennsylvania.  The plaintiff, Debra Checa, began her employment with defendant Drexel University College of Medicine in 2010. Four years later, Checa went out on an FMLA leave to have carpal tunnel surgery. Her leave was scheduled to end in September of that year, but Checa’s mother passed away while Checa was on leave, and the University very kindly extended her leave.

While Checa was out all these months, a coworker named Christina Zervoudakes took over her job duties, and was likely none too happy. Checa returned on Sept. 16, 2015, and met with Zervoudakes and one other employee, to discuss work assignments and the work that Checa had not completed before she left on the FMLA leave. 

Checa had apparently promised to complete certain tasks before going out on leave, and she was presented with a list of what she had failed to do. Zervoudakes and the other employee did not offer any condolences for Checka’s loss. Apparently Checa perceived this all as rude, and screamed that she quit, according to the opinion. She then called her supervisor and quit, and followed that up with a resignation email.

Checa had apparently really enjoyed being off, but the next morning brought the reality of the difficulty of paying bills without a job, so Checa called and tried to retract her resignation. The company basically said, “No, you were pretty clear with your resignation, so no take-backs,” and refused to let her return.

Checa responded with a lawsuit alleging FMLA retaliation and constructive discharge, claiming that it was all a big set up. She felt that her co-workers should have been more welcoming with her return, but by dumping on her they had forced her to resign. The Univeristy responded with a motion for summary judgment, arguing that Checa could not show any retaliation based on her FMLA leave.

The District Court characterized the dispute as follows:

“Today we address whether an employer retaliates by either: a discourteous welcome back to work including holding a meeting to address tasks not completed by an employee before leave resulting in the employee’s impetuous resignation; or, declining to accept the employee’s next day effort to rescind her impetuous resignation.”

After analyzing the facts, the court concluded:

“Checa failed to establish a prima facie FMLA retaliation claim because she cannot show an adverse employment action or prove causation between an adverse employment action and her FMLA leave. Even if we found a prima facie retaliation claim, Drexel and Lally prevail because Checa cannot defeat Drexel’s several legitimate, non-discriminatory reasons for the alleged adverse actions.”

“Drexel offered legitimate, non-discriminatory reasons for the alleged adverse employment actions. Drexel contends it conducted the “first day back” meeting to correct Checa’s work-related issues occurring before her FMLA leave and to transition work back to her after her return from leave. Drexel did not allow Checa to rescind because of her inability to accept constructive criticism during the meeting and her unprofessional resignation. All of these reasons, if taken as true, “would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision,” satisfying Drexel’s burden under the McDonnell Douglas framework. Drexel cites Checa’s inability to specifically remember any of the alleged unfinished work items discussed at the meeting. Checa does not assert an employee fabricated comments or said them to her for a retaliatory reason.”

The takeaway here, as I have stated many times, is don’t shoot yourself in the foot. The company, and certainly your co-workers, may not be happy that you took off three months or more, no matter how righteous your reasons. The company can’t discriminate against you for exercising your legal rights, but don’t expect flowers and champagne upon your return.

Gay Lawyer Takes Stand in Defamation Suit

The gay attorney suing Anapol Schwartz for defamation took the stand Tuesday to outline his departure from the firm and his decision to accept a job at Raynes McCarty…

Source: www.thelegalintelligencer.com

Quite the case. The law firm associate, Jeffrey Downs, was planning to make a lateral move from Anapol Schwartz to Raynes McCarty, but allegedly his former firm informed the new firm that Downs was preparing to sue the former firm for discrimination. Raynes McCarty then revoked its offer.

Ironically, Downs is now suing Raynes McCarty for discrimination and defamation. Presumably, if the allegations are true, the firm revoked the offer because it feared that Downs was litigious and wanted to avoid being sued, but in the process bought itself a lawsuit in any event.

Equally ironic, before leaving Downs had sent an email to his firm, seeking eight months of severance pay. That is the email that the firm is pointing to to claim that Downs was threatening litigation before his departure, which would make the warning to the new firm absolutely true.

Catholic Church pays $4 million to settle wrongful termination lawsuit of Vallejo coach

The Catholic Church in Sacramento has agreed to pay $4 million to settle a former high school football coach’s wrongful termination lawsuit.

Source: abc7news.com

This was a tragic case involving a high school football coach who was fired for doing the right thing.

The coach was a retired police officer, who decided to coach the football for the local Catholic High School. When he arrived, he soon heard tales of some very inappropriate hazing rituals involving the players. When he reported the conduct, the school blamed him for letting it happen and fired him on that basis.

Here is where things get interesting. He sued for wrongful termination, and a Sacramento jury awarded him $900,000 in compensatory damages, even though he had found a better job that paid more.

But then came the punitive damages phase of the trial. Before the case was put to the jury to decide on punitive damages, the Catholic church agreed to settle for the original $900,000 plus $4 million in punitive damages. No doubt the Catholic church wanted to cut its losses and avoid the possibility of a much larger punitive damages award. However, based on the comments of the jurors, it appears any punitive damages would have been far less.

See on Scoop.itWrongful Termination

Wrongful Termination — Former Teacher Awarded $3.5 Million

What a difference being a government employee makes. Most workers are at-will employees and can be terminated without cause on the whim of the employer, but teachers can only be terminated for cause. In the case of Lyndsey Wilcox v. Newark Valley Central School District, that distinction led to a huge verdict.

A jury on Wednesday awarded close to $3.5 million in damages to Wilcox, who alleged she was fired without cause. Wilcox was dating another teacher when it was discovered that he was acting inappropriately toward female students. He was ultimately convicted of sex offenses and sentenced to 30 years in prison. Wilcox successfully argued that she was only terminated for the sins of her boyfriend.

The jury deliberated for about three hours before returning with a verdict awarding Wilcox $351,990 for lost wages and $2.1 million for future lost earnings and $1 million for emotional distress.

Hostile Work Environment — The Law Does Not Promise a Utopian Workplace

I don’t often set forth an entire opinion, but the following case out of the Third Circuit provides a very good summary of what constitutes a “hostile work environment”, while at the same time demonstrating how the facts of a case are dissected and examined.  If you are contemplating a wrongful termination action in general or a hostile work environment action in particular, this case is well worth reading.

The takeaways are:  (1) a mean boss does not (necessarily) a hostile work environment make, and (2) if individual acts are not “hostile”, then even 14 of those acts will not create a hostile work environment.

Continue reading

Women Can be Fired for Being Too Attractive, Says Iowa Supreme Court

dental-assistantA seemingly horrible decision out of Iowa provides an extreme example of how discrimination is only actionable if it involves a protected class.

In a very rare move, the Iowa Supreme Court had already issued a ruling in this case but withdrew its own ruling to give it more consideration. On Friday it reissued the ruling, standing by it decision that a dentist acted legally when he fired an assistant because he found her too attractive.

The dentist fired the employee because he felt she was a threat to his marriage, and the court ruled that is permitted, even if the employee has not done anything to lead the boss to believe he would ever have a shot at a relationship. The court held that a firing under these circumstance does not amount to illegal sex discrimination because it is the result of feelings, not gender.

The court upheld the ruling of the trial judge, who dismissed a discrimination lawsuit filed against dentist James Knight, who fired his assistant Melissa Nelson, even though he admitted he always agreed that she had been a great employee for ten years she worked for him. The trial judge and the appeal court did not see the termination as having anything to do with gender, because Nelson was replaced by another woman, and Knight’s entire staff consists of women.

Newsflash to Judge: Lactation is Related to Pregnancy Discrimination

I reported a little over a year ago about a discrimination case out of Texas. A fired employee sued for wrongful termination based on pregnancy discrimination, claiming that she was fired due to her request to use the bathroom to breast-pump.

The judge on the case was Lynn Hughes. Judge Hughes was apparently willing to begrudgingly admit that taking adverse job action against a woman because of her pregnancy could amount to illegal discrimination, but that was as far as he was willing to go. In an infamous decision, Judge Lynn Hughes held: “Lactation is not pregnancy, childbirth, or a related medical condition,” adding that after plaintiff gave birth, “she was no longer pregnant and her pregnancy-related conditions ended.” Based on that tortured logic, Judge Hughes held that the woman had no viable claim under Title VII’s prohibition (found in the “Pregnancy Discrimination Act,” or PDA) against discrimination based upon pregnancy, childbirth or a related medical condition.

To that, I responded: “The ruling is, of course, utter nonsense. Lactation occurs because of childbirth, and if a mother cannot pump or nurse, she is at risk of mastitis.” I predicted the case would be overturned on appeal, and I was right. Continue reading

California Court of Appeal Rejects “Multi-Tasking” Argument for Exempt Employees

An interesting case involving the Safeway grocery chain could have some far reaching ramifications for California employers.

First a little law. In California, a manager can be exempt from overtime pay, so long as the manager is “primarily engaged” in managerial duties. As was the case many years ago when I worked at a grocery store, managers typically do far more than manage. This case shows little has changed, and the plaintiff, Linda Heyen, when promoted to assistant manager, continued to do all the things she had done before she was promoted, but with added supervisory duties. So, when Heyen was fired, she sued, claiming that she should not have been treated as an exempt employee and was entitled to overtime pay.

Safeway argued that Heyen was properly categorized as exempt, because she was primarily engaged in managerial duties, regardless of what she was doing. When she was stocking shelves, she was still supervising the other employees. When she was running the register, she was still supervising other employees. Here is the claim by Safeway:

Safeway urges that store managers such as Heyen necessarily “multi-task” by engaging in “exempt” and “nonexempt” activities at the same time. In other words, while Heyen and other managers “might be checking and bagging (or doing stock work) they were also always still managing the store operations, including engaging in activities such as observing store operations and employee activities, and instructing employees in their assignments and any corrective measures that needed to be taken.” By instructing the jury that it must determine whether an activity was “exempt” or “nonexempt” based on the primary purpose for which Heyen undertook it, the court “effectively [read] the concept of concurrent duties almost out of existence.” Instead, Safeway suggests, the trial court should have instructed the jury that any time Heyen spent simultaneously performing “exempt” and “nonexempt” duties “should be considered to fall on the `exempt’ side of the ledger.”

Here is how the Court of Appeal responded to that argument:

Although there is some intuitive appeal to Safeway’s contention, it is unsupported by California law. As we have said, the federal regulations cited in Wage Order 7 expressly recognize that managers sometimes engage in tasks that do not involve the “actual management of the department [or] the supervision of the employees therein.” (§ 541.108(a).) In those circumstances, the regulations do not say, as Safeway would have us hold, that those tasks should be considered “exempt” so long as the manager continues to supervise while performing them. Instead, the regulations look to the supervisor’s reason or purpose for undertaking the task. If a task is performed because it is “helpful in supervising the employees or contribute[s] to the smooth functioning of the department for which [the supervisors] are responsible” (§ 541.108(a), (c)), the work is exempt; if not, it is nonexempt.

Thus, the federal regulations incorporated into Wage Order 7 do not support the “multi-tasking” standard proposed by Safeway. Instead, they suggest, as the trial court correctly instructed the jury, that the trier of fact must categorize tasks as either “exempt” or “nonexempt” based on the purpose for which Heyen undertook them.

The lesson here for employers is that you don’t get to create exempt employees with a change in title, unless that employee really does become a manager performing primarily managerial duties. From the employee’s perspective, if you get a promotion to manager, but find yourself still performing the same duties, then you are probably entitled to overtime pay.

Is Discrimination Against Redheads Illegal in the Workplace?

When I am explaining the concept of at-will employment, to illustrate the point that an employer can fire an employee for anything so long as it does not violate public policy or statute, I will sometimes say, “He could decide he doesn’t like the color of your hair and fire you for that.” But an interesting case out of New Jersey might prove me wrong.

According to an article in the New York Post, the NYPD sent out an anti-bias message this month to Manhattan sergeants and lieutenants, who were told that redhead harassment would not be tolerated.

“We’re apparently victims now,” said one cop with ginger locks. “We’re protected from discrimination.”

No lawsuit has been filed against the city, but the feds say a claim alleging unfair treatment over red hair would be supported by federal law, which bars workplace bias against applicants and employees based on race, national origin, skin color, religion, sex or disability.

Wait a second. What does hair color have to do with any of those protected classes? That’s were things get interesting. Think about it. If you had to guess the nationality of someone with red hair, what would you pick? You’d probably guess Ireland, because people with red hair are found in higher numbers in Britain and Ireland than elsewhere, according to the federal Equal Employment Opportunity Commission. So if someone could prove discrimination against redheads, that would mean that there is a disparate impact against those of Irish dissent, and nationality is a protected class.

These are the sort of mental games that only attorneys play. In the real world, it would be very unlikely that anyone is going to suffer adverse job action or discrimination based on being a redhead. As one retired officer quoted by the New York Post stated, “To put redheads in a protective class — that’s ridiculous!” However, the analysis is still useful to illustrate how a seemingly “innocent” form of bias can create illegal discrimination.