Archive for the ‘Federal Employment Law Updates’ category

Wednesday Federal Employment Law Update- Epilepsy and the ADA

October 26, 2011


Welcome back for your Wednesday federal employment law update!  Today we discuss an unfortunate result which I am sorry to say was the result of a plaintiff’s strategic error. 

In Ramos-Echevarria v. Pichis, Inc., 2011 WL 5009779 (1st Cir. Oct. 21, 2011), the First Circuit affirmed a summary judgment from the District Court of Puerto Rico in favor of the defendant employer on an Americans with Disabilities Act (“ADA”) claim based on a failure to promote. 

The plaintiff was a part-time cook for the defendant’s restaurant who suffered from epilepsy.  Due to his epilepsy, Plaintiff suffered between 9-16 epileptic seizures per week, some occurring at work.  Due to he and his co-workers’ familiarity with the symptoms, Plaintiff managed to fulfill his duties without risking injuries over the course of his tenure with defendant dating back to 1999.  However, Plaintiff testified that he was denied full-time employment based on his epilepsy.  Plaintiff noted not only direct statements about his condition made by Defendant’s owner at the time of his application for full-time work, but also additional statements made by the owner when Plaintiff first started working there. 

Plaintiff made a tactical error in claiming only that he was disabled, rather than additionally claiming that Defendant “perceived” him as disabled.  Under the ADA, perceived disability is just as actionable as actual disability.  Relying only on actual disability, the First Circuit went through a multi-factor analysis and concluded that since Plaintiff could totally perform his job and was not limited in any major life activity, that he was not disabled and thus could not set forth a prima facie case of ADA discrimination. 

If Plaintiff had alleged perceived disability, he arguably could have proceeded on a direct evidence theory based on his boss’s comments.  It’s hard to understand what this fella’s counsel was thinking….

Wednesday Federal Employment Law Update- Hostile Work Environment

October 5, 2011

Hope everyone had a great day today.  Why does today’s post start with a photo from the 1996 movie, Primal Fear?  Well, below we will talk about a case involving a claim of a sexually hostile work environment against a Roman Catholic diocese.  Anytime I think of a sex scandal against the catholic church, I am instantly reminded of this underrated movie.   Want to talk about star power?  It starred Richard Gere before he started focusing on musicals, breakout performances by Edward Norton and Laura Linney, and a great ensemble cast of character actors — John Mahoney (from the TV hit Frasier), Maura Tierney (before her run at ER and a classic Elizabeth Perkins Hall of Famer, my name for actresses which I am not sure whether we are even SUPPOSED to think are beautiful), Andre Braugher (fromHomicide:  Life on the Street), and Alfre Woodard.

My only issues with the movie?  One, the title.  I don’t really get it.  And two, the murder victim in the movie is a famous Roman Catholic clergyman named Archbishop Rushman.  I’m sorry to throw generalizations out in an employment law blog, but without literally pointing out the problem here, it seems like “Archbishop Flaherty” or “Archbishop Lorenzo” may have been a slicker fit.  Yet I digress…

In Rojas v. Roman Catholic Diocese of Rochester, 2011 WL 4552460 (2d Cir. Oct. 4, 2011), the Second Circuit affirmed summary judgment on the Plaintiff’s claims of sexual harassment, hostile work environment, and retaliation against her former employer based on alleged harassment by a fellow employee.  Plaintiff sued the fellow employee as well, a priest, but did not appeal the summary judgment issued to him by the lower court.

The key issue in the case was the rampant inconsistencies in Plaintiff’s story between her complaint, her deposition testimony, and her sworn interrogatory responses.  In sum, there were key inconsistencies on the issues of 1) whether the priest was her supervisor (key for imputing liability to the employer); 2) the severity of the conduct; and 3) when and how she reported the conduct.  The inconsistencies were so egregious that the lower court held, and the 2nd Circuit agreed, that no genuine issue of material fact could be raised to defeat summary judgment.  Specifically, the Court held that, “in certain cases a party’s inconsistent and contradictory statements transcend credibility concerns and go to the heart of whether the party has raised genuine issues of material fact to be decided by a jury.  This is such a case.”

Wednesday Federal Employment Law Update- Pregnancy Discrimination

September 28, 2011

Hello all, and welcome back for your Wednesday Federal Employment Law Update.  This week, we discuss the case of Slater v. Energy Services Group Int’l. Inc., 2011 WL 4425306 (11th Cir. Sept. 23, 2011), a case where the Eleventh Circuit Court of Appeals affirmed summary judgment for the employer in a claim for pregnancy discrimination under Title VII and Florida’s state statutory equivalent, the Florida Civil Rights Act. 

Since 1977, with the passage of the Pregnancy Discrimination Act, pregnancy discrimination has been a recognized form of gender discrimination.  Claimants must meet the same standards for a prima facie case, including rebutting legitimate, non-discriminatory bases for termination by proving pretext. 

In Slater, the plaintiff was terminated from her position as a vision test technician after she allegedly failed to properly administer a vision test.  Plaintiff alleged that the true reason for her termination was excessive absences related to her pregnancy.  However, the record showed that Defendant had disciplined her regarding attendance and other performance issues before she ever became pregnant with both verbal and written counseling. 

Plaintiff also claimed retaliation based on an e-mail that she sent one month prior to her termination attempting to assure her superiors that she could perform her job despite being pregnant.  The Court held that this e-mail did not constitute “protected activity” triggering a retaliation claim because Plaintiff was not complaining of pregnancy discrimination, but rather simply sending a positive e-mail regarding her purported ability to perform her job at a competent level. 

This was a case with weak facts, which unfortunately does no justice to the reality of pregnancy discrimination.  While the case law does not require an employer to excuse unlimited absences, employers must be weary of assuming that pregnant employees will be problematic and give these employees the benefit of the doubt in these temporary circumstances, or face the prospect of a discrimination claim brought by a sympathetic plaintiff.   

Federal Employment Law Update- Title VII

August 30, 2011

Welcome everyone to your Federal Employment Law Update!  Today’s case reminds us of a few things:  1) random remarks that do not fit together will create a circumstantial evidence case of race discrimination; and 2) courts will generally find any basis to avoid considering an attorney’s fee claim if the opportunity presents itself!

In Idemudia v. JP Morgan Chase, 2011 WL 3648219 (6th Cir. Aug. 18, 2011), the Sixth Circuit Court of Appeals affirmed summary judgment in Chase’s favor on Plaintiff’s Title VII claim for race and national origin discrimination. 

Plaintiff, of Nigerian descent, started with Chase as a bank teller in 1996 and by 2007, worked himself up to a branch manager position, where he reported to a white District Manager.  Just a month into his promotion, Plaintiff experienced various problems at the bank, including two audit reports stating that the branch “needs work,” another incident where the branch was fined $500 after an employee’s child pulled the fire alarm, and finally on the same date the alarm was pulled, a policy violation regarding the misplacement of customer deposits.  Plaintiff was not at the branch on this controversial date, but was suspended due to poor training and oversight over the remainder of his staff.   

Plaintiff was instructed to create branch action plans and to personally undergo management training.  Plaintiff scoffed at the idea of the branch management plans and later lied to his supervisor about having completed the training.  Following this incident, Plaintiff was asked to interview for a lower position in the company.  When he refused, he was given the option of resigning, which he declined.  He was then terminated.   He was replaced by a white woman.

In his case, Plaintiff raised two instances of racially insensitive comments, one from a subordinate and one from a supervisor on separate unrelated occasions.  The more imporant comment, from the supervisor, was the less egregious of the two, stating that he once dated an African-American but that she broke up with him because he was white. 

After rejecting Plaintiff’s claim that the dating anecdote represented “direct evidence” of discrimination, the court applied the McDonnell Douglas framework for circumstantial evidence.  Since he was replaced by someone outside his protected class, he met the lenient standard for a prima facie case.  However, after JP Morgan set forth its reasons for terminating him, Plaintiff could not string together enough circumstantial evidence to convince the appellate court that a reasonable factfinder could determine that race was the real reason for his termination.   Accordingly, summary judgment was affirmed. 

Chase moved for its attorneys fees, which Title VII permits for the defense if the matter is considered frivolous.  However, the Court declined to even consider the motion for a silly procedural reason.  Frankly, this did not seem to be the type of “frivolous” case warranted fees to the defense, but it is still humorous how far the courts will go to avoid the issue of fees against an employment claimant.  More importantly, this case is emblematic of the fact that one or two random comments involving race (or any other protected class) does not necessarily trigger an employment discrimination claim. 

Wednesday Federal Employment Law Update- FLSA Retaliation

August 17, 2011

Hello all, and welcome back for your Wednesday Federal Employment Law Update!  Regular followers know that I rarely discuss the same statute on consecutive weeks, but today’s case is important in the context of another FLSA case we discussed a few months back on this blog.  Earlier, in Kasten v. Saint-Gobain Performance Plastics Corp., 131 Sup. Ct. 1325 (2011), the U.S. Supreme Court held that retaliation claims under the Fair Labor Standards Act could be triggered by oral complaints in addition to written ones.  This was a significant opinion in that now, an employee on a production line who makes a comment about overtime policies may suddenly have a retaliation claim if he or she is demoted or terminated shortly thereafter, whereas previously retaliation claims required a written complaint.

In Dellinger v. Science Applications Int’l Corp., 2011 WL 3528750 (4th Cir. Aug. 12, 2011), the Fourth Circuit Court of Appeals faced another potential expansion on FLSA retaliation — withdrawal of an employment offer to a prospective candidate after learning that she sued her previous employer under the FLSA.  In Dellinger, Plaintiff was offered a job and asked to fill out some additional paperwork which asked, among other things, if she currently was involved in any non-criminal litigation.  After she advised that she was involved in an FLSA lawsuit against her previous employer, the offer was withdrawn.  She sued under the FLSA’s anti-retaliation provision.

Affirming the lower court’s dismissal, the Fourth Circuit held that under the express terms of the FLSA, only a current or former employee could state a cause of action against the employer, not a mere “prospective” employee. 

Funny, even as primarily a defense attorney, I find this Plaintiff’s case more compelling than the Kasten Plaintiff.  In this case, a person was clearly retaliated against because she previously stood up for her rights under the FLSA.  Why should it matter that she invoked the FLSA against a different employer?   I will be interested to see if this one makes it to the Supreme Court.


DISCLAIMER:  This blog is provided for entertainment purposes only and does not create an attorney-client relationship, nor does it represent legal advice. 

Federal Employment Law Update- Picking off the FLSA case

August 11, 2011

Good afternoon all, and welcome to your federal employment law update.  For what today’s case lacks in juicy facts, it makes up for in practical legal impact.  In Dionne v. Floormasters Enterprises, Inc., 2011 WL 3189770 (11th Cir. July 28, 2011), the Eleventh Circuit affirmed dismissal of a wage and hour collective action claim brought under the Fair Labor Standards Act after Defendant tendered the full amount claimed for by the class representative of the Plaintiff class.  Defendant then filed a motion in the lower court requesting dismissal of the case as moot.   The lower court agreed, dismissing the case without awarded attorney’s fees to Plaintiff due to the lack of a “judgment” as required by the statute.  The Eleventh Circuit agreed after doing an analysis on the FLSA’s language. 

Sounds like no big deal, right?  Well, this can have a potentially huge impact on FLSA cases and how they are litigated.  The FLSA is a statute aimed at protecting certain workers from missing out on overtime pay and, to a lesser extent, minimum wage violations.  A prevailing Plaintiff is entitled to recover their attorney’s fees.  In the typical case, the actual injury to the Plaintiff pales in comparison to the amount of fees their attorney racks up.  For instance, a typical FLSA case occurs when a factory worker is not compensated for time off the clock spent putting on their uniform, something that may take something like 2-3 minutes per day.  Add these violations up over a year and they may be out like $300. 

The attorneys’ fees drive the cases, and so unsurprisingly the attorneys are more invested than their clients.  In fact, most FLSA cases are initiated through attorneys investigating an employer rather than a normal client seeking out counsel believing they are the victim of injustice.  In Dionne, the defendant dealt a kill shot right off the bat by paying the relatively nominal damage claim ($3,000).  I am frankly surprised the courts allowed it but hopefully it reduces the amount of these claims, as they make up a substantial percentage of the cases on federal court dockets, particularly in Florida.

DISCLAIMER:  This blog is written for entertainment purposes only and does NOT create an attorney-client relationship between the author and its readers. 

Federal Employment Law Update- Sexual Harassment against Uncle Sam

August 9, 2011

Good morning all, and welcome to your Federal Employment Law update!  Until we get back on track with our schedule, we’re gonna stop labeling our posts based on the day of the week.  I ran it by the steering committee and they loved the idea.

Today we look at a case that’s interesting both factually and procedurally.  In Jenkins v. Mabus, 2011 WL 2936331 (8th Cir. 2011), Plaintiff sued the Secretary of the Navy for sexual harassment and retaliation under Title VII as well as state law claims.  According to her original Charge of Discrimination, for a two month period in late 2003, she was continuously harassed with sexually suggestive comments, repeated requests for sex, an inappropriate touching and fondling of her legs and thigh.  After she reported the incident, she was subjected to a series of insults.

Her claim was dismissed by the lower court for failure to exhaust her administrative remedies.  Pursuant to Title VII regulations, discrimination claims against the federal government must be initiated with an Equal Employment Opportunity counselor within 45 days.  Since she did not report anything until 68 days after the sexual harassment ended, her complaints were deemed untimely.  As part of its ruling, the Eighth Circuit determined that the insults that followed did not constitute continuing sexual harassment which would have tolled the 45-day window to report the harassment to an EEO counselor. 

Interestingly, though such conduct after the two-month period clearly appeared to be actionable retaliation, Plaintiff did not raise issues on appeal relating to retaliation, waiving any right to appeal on the issue. 

DISCLAIMER:  This blog does not constitute legal advice, nor does it create an attorney-client relationship. 

Belated Wednesday Federal Employment Law Update- Exhaustion of Administrative Remedies

July 25, 2011

Hello all, and welcome back to our second post today, this one on Federal Employment Law.  Today we look at a Title VII case which teaches two key lessons — 1) You better know the scope of your case pretty well before you file your Charge of Discrimination; and 2) If you are pursuing a harassment claim, your facts better be sizzling. 

In Malone v. Ameren UE, 2011 WL 2750623 (July 18, 2011), the Eighth Circuit Court of Appeal affirmed summary judgment in the employer’s favor on claims under Title VII for failure to promote based on race and hostile work environment based on race. 

In his original administrative Charge of Discrimination, Plaintiff Malone alleged that Defendant failed to give him a promotion in 2007.  After it was determined in discovery that Malone actually received the promotion referenced in the Charge, he attempted to amend his claim to reference a different promotion in 2003 that he claims he should have gotten.  He also pursued a hostile work environment claim based on four racially discriminatory incidents that occurred at the workplace over a 2+ year span.  Though 3 of 4 incidents involved the “N word,” none of those three incidents involved use of the word directly to the Plaintiff. 

The District Court for the Eastern District of Missouri granted summary judgment for the employer, finding that a) Plaintiff had not exhausted his administrative remedies with respect to the failure to promote claim; and 2) had not raised facts severe and pervasive enough to support a hostile work environment case.

On appeal, the Eighth Circuit agreed.

In advance of filing a civil claim, a Title VII claimant must file an administrative charge with the EEOC or local agency spelling out their claims.  If the matter proceeds to a civil action, the claims in the civil complaint must mirror those in the charge or must at least be reasonably expected to grow out of the charge of discrimination.  In this case, the courts held that a 2003 failure to promote from one position was unrelated to a failure to promote to another position in 2007, and therefore did not allow the amendment. 

As to hostile work environment, the facts supporting a claim most be severe or pervasive enough to satisfy a subjective AND objective standard, meaning the factfinder must agree that a reasonable person would have considered the environment to be hostile. 



 THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.

Wednesday Federal Employment Law Update- The OWBPA

July 13, 2011

Hello all, and welcome to your Wednesday Federal Employment Law Update! 

There weren’t any crackup search engine terms used yesterday, but we must always have a winner.  Today’s is simply “aces,” which someone used to eventually find my poker blog entry about playing pocket aces.  God only knows how many pages of hits he needed to flip through on Google to find my blog with that search!

Today we look at a case interpreting the Older Workers Benefit Protection Act, or the “OWBPA.”  The OWBPA was enacted in 1990 and amended the Age Discrimination in Employment Act to impose specific requirements for releases covering ADEA claims.  Basically, employees over 40 must get extra time to consider releases waiving ADEA claims, even some time after they sign the release to withdraw their agreement, and all provisions containing waivers of ADEA claims must be conspicuous and understandable.

Does anyone else see anything backwards about this?  We have the ADEA and a bunch of other statutes establishing equality in the workplace, but then a part of the ADEA which essentially says, “ya know these older folks are prone to getting confused and signing stuff they don’t understand, we better put in an extra buffer to protect them!”  I mean, are we all equal or aren’t we? 

Ok enough of my rant!  In Ridinger v. Dow Jones & Co., 2011 WL 2675921 (2nd Cir. July 11, 2011), the Second Circuit affirmed summary judgment from the New York District Court on Plaintiff’s claim of age discrimination.  Defendant had terminated Plaintiff’s employment as part of a reduction in force (legalese for “layoff”), entering into a Separation Agreement with the Plaintiff which included severance pay, but also a release of all claims up to the point of Plaintiff’s termination, including those for discrimination under the ADEA.  The ADEA language was placed in bold to make it clear for the employee.

Despite signing it and accepting all the benefits of the severance package, Plaintiff sued for discrimination anyway, arguing that the release was invalid because it was too vague in violation of the OWBPA.  Comparing the language to those found in other cases, the District Court and Second Circuit both agreed that the release language complied with the OWBPA.

For those sympathetic to the employee, keep in mind that he did not have to sign the Separation Agreement.  Or he could have signed it and changed his mind during the revocation period. 



 THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.

Wednesday Federal Employment Law Update

July 6, 2011

Hello all, and welcome to your Wednesday Federal Employment Law Update! 

First, for our new feature, the most entertaining search engine term used to locate this blog from yesterday was “catfight asstar,” which led one fan of whatever the heck “catfight asstar” is to my Celebrity Apprentice review discussing a potential catfight between Star Jones and Nene Leakes!

Onto our more serious business.  Today we discuss a case from my home Circuit, the Eleventh, involving reverse discrimination at Lockheed Martin.  In Smith v. Lockheed-Martin Corp., 2011 WL 2567777 (11th Cir. June 30, 2011), the Eleventh Circuit reversed a summary judgment for LM in a case brought by a former white employee who was fired after distributing a racially insensitive joke e-mail (Top 10 Reasons Why There Are No Black Drivers in Nascar) to other employees in violation of LM’s zero tolerance policy for such material. 

Smith, a supervisor, did not contest that he violated the policy, but rather argued that LM had a recent history of treating black employees more favorably for like violations.  In one example, a black employee was given a two-week suspension rather than termination after distributing a clip showing videos of white people dancing.  The lower court granted summary judgment to LM, finding that the black employee discussed was not a “comparator” to Smith because the black employee was not a supervisor. 

On appeal, the Eleventh Circuit reversed the granting of summary judgment, citing to other facts in the record regarding other instances of racism at LM against blacks which may have motivated the company to treat white employees less favorably due to media scrutiny regarding a prior hate crime against black employees at a Mississippi LM facility.  The Eleventh Circuit did not decide the case in Smith’s favor, but rather just held that enough circumstantial evidence of potential discrimination permit the case to proceed to trial.

This was a tough pill to swallow for the employer.   LM had a pre-existing zero tolerance policy which permitted LM discretion to terminate an employee, and it did so.  Moreover, other factors between the two incidents distinguished them in a way that the lesser punishment of a two-week suspension was understandable.  The employer must be given some breathing room to enforce its policies as appropriate.  I didn’t agree with this one…


 THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.