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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

McKenna Employment Bulletin – April 2014

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  • VOLUNTARY QUIT EQUALS NO ADVERSE ACTIONR
  • LACK OF COMPARATIVES STOPS TITLE VII GENDER CLAIM
  • DRUG TEST REQUIREMENT STOPS A RETALIATION CLAIM
  • ADVERSE ACTION REQUIRES MORE THAN THE ISSUANCE OF A POOR EVALUATION AND SUBJECTIVE BELIEF
  • YOUR PROMPT INVESTIGATION AND RESPONSE WILL PREVENT A HOSTILE ENVIRONMENT CLAIM
  • YOU MUST HAVE FACTS TO SHOW EMPLOYMENT TESTS ARE BIASED

 

VOLUNTARY QUIT EQUALS NO ADVERSE ACTIONR

In Andrews v. CBOCS West, Inc., No. 12-3399, February 14, 2014, 7th Circuit, the plaintiff alleged that her employer terminated her from her server position on account of her race and age. The plaintiff did present evidence that her African-American supervisor made daily negative comments about her age and on a few occasions reassigned large tables to other servers. But, the plaintiff did not allege a hostile environment. Importantly, the plaintiff failed to present evidence of an adverse action because the plaintiff voluntarily quit her position in anticipation of transfer to a different restaurant that never materialized. Because there was no adverse action against the plaintiff, the court granted judgment for the employer in the plaintiff’s Title VII and ADEA action.
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LACK OF COMPARATIVES STOPS TITLE VII GENDER CLAIM

In Bass v. Joliet Public School District No. 86, No.13-1742, March 26, 2014, 7th Circuit, the plaintiff alleged that her employer terminated her from her school custodian position on account of her gender. However, the record showed that the plaintiff was terminated after exhausting all available leave under circumstances where applicable collective bargaining agreements allowed for such termination. Further, the employer had terminated three male custodians under similar circumstances. The court ruled the plaintiff could not state a claim based on bare allegations that certain, unnamed male custodians received more favorable treatment. Therefore, judgment was entered in favor of the employer.
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DRUG TEST REQUIREMENT STOPS A RETALIATION CLAIM

In Phillips v. Continental Tire The Americas, LLC, No. 13-2199, February 14, 2014, 7th Circuit, the plaintiff alleged that his employer terminated him in retaliation for the plaintiff seeking workers’ compensation benefits. The defendant had a policy that required the plaintiff to take a drug test when seeking workers’ compensation benefits. The employer terminated the plaintiff after the plaintiff had refused to take a drug test when he sought workers’ compensation benefits. The plaintiff conceded that he would still be employed had he taken the drug test. In addition, the causation requirement for the plaintiff’s claim required that he provide evidence of something more than his discharge to connect his discharge with the filing of his workers’ compensation claim. Therefore, the court entered judgment in favor of the employer.
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ADVERSE ACTION REQUIRES MORE THAN THE ISSUANCE OF A POOR EVALUATION AND SUBJECTIVE BELIEF

In Chaib v. State of Indiana, No. 13-1680, February 24, 2014, 7th Circuit, in a Title VII action the plaintiff alleged that her employer discriminated against her on account of her gender and national origin because the employer allegedly denied the plaintiff certain training and a transfer request to a different correctional facility in addition to issuing a poor evaluation. The court held the employee failed to establish an adverse act arising out of any denial of training where the plaintiff eventually received her training. The issuance of the poor evaluation by itself was insufficient to establish an adverse act. Further, the denial of the transfer request was not an adverse act because the plaintiff conceded that her duties, salary and career opportunities were not affected by the denial of her transfer request. The court held the plaintiff’s subjective belief that the requested transfer was a "more ideal fit" or was "personally advantageous" was insufficient to turn the denial of the transfer into an adverse employment action. Finally, the plaintiff also failed to present evidence that others outside of her protective classifications received more favorable treatment.
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YOUR PROMPT INVESTIGATION AND RESPONSE WILL PREVENT A HOSTILE ENVIRONMENT CLAIM

In Williams-Boldware v. Denton County, Texas, 2014 WL 349749 (5th Circuit 2014), an African American attorney employee complained of racial discrimination under Title VII on the basis of a hostile work environment. But, the employee had a meeting with the employer District attorney and the First Assistant District Attorney within 24 hours to discuss the plaintiff’s complaint that a co-worker made inappropriate and upsetting racial comments. Further, the offending co-worker was verbally reprimanded and ordered to attend diversity training. The employee was also transferred to a different division. Finally, there was no evidence that any racially harassing conduct continued after the District Attorney’s office acted. Thus, the District Attorney’s prompt remedial response precluded liability under Title VII for hostile work environment.
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YOU MUST HAVE FACTS TO SHOW EMPLOYMENT TESTS ARE BIASEDM

In Adams v. City of Indianapolis, Nos. 12-1874 & 13-3422 Cons., February 4, 2014, 7th Circuit, the plaintiffs, African-American policeman and fireman, filed a disparate impact Title VII action which alleged that the city employer’s use of test scores to make certain promotion decisions deprived the plaintiffs of promotion opportunities because the testing process was racially and culturally biased. However, the plaintiffs’ complaint alleged only legal conclusions without stating any factual context to support the inference that the employer’s examination procedures caused a disparate impact on African-American applicants. Further, the record failed to contain any evidence to undermine the test scores as a legitimate non-discriminatory means of evaluating candidates for promotion. Therefore, the court dismissed the plaintiffs’ claim for failure to state a cause of action.
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This Employment Bulletin is intended to provide information of general interest and does not constitute legal advice. Readers should consult with their counsel before taking any action based on the information in this publication. All rights reserved. Copyright 2013, McKenna Storer. 

Categories Employment Bulletin Publications



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