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

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McKenna Employment Bulletin – August 2013

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If You Are An Employee, Don’t Admit Termination If You Want To Plead Failure To Recall

In Shelton v. OSF Saint Francis Medical Center, 2013 IL App (3d) 120628 (June 19, 2013), the plaintiff alleged in a verified amended complaint that she was terminated from her employment. The Court found this was a judicial admission. The plaintiff’s cause of action was based, however, on the single theory of retaliatory failure to recall her to employment. The Court concluded that the plaintiff’s admission in her complaint and numerous statements including her letter to the employer and an agreed statement for trial showed that the judicial admission of termination was binding and was not the result of inadvertence or mistake. Therefore, the admission was fatal to her cause of action for failure to recall.

 

Intentional Infliction Of Emotional Distress Based On Sexual Orientation Discrimination Preempted By The Illinois Human Rights Act

In Schroeder v RGIS, Inc., 2013 IL App (1st) 122483 (June 11, 2013), the plaintiff filed a claim alleging intentional infliction of emotional distress against his former employer. The basis of his intentional infliction claim was allegations of discrimination and retaliation based on the plaintiff’s sexual orientation. The Court dismissed the plaintiff’s complaint and ruled it was a tort claim inextricably linked to a sexual orientation discrimination claim under the Illinois Human Rights Act. Therefore, the plaintiff’s claim was preempted and barred by the Illinois Human Rights Act. Further, the Court found that the plaintiff’s claim was compensable under the Illinois Workers’ Compensation Act as a physical-mental injury. Thus, the plaintiff’s was also preempted and barred by the exclusivity provision of the Illinois Workers’ Compensation Act.

 

Your Flex Time Policy May Mean Punctuality Is Not A Job Requirement

In McMillan v. City of New York, 2013 WL 779742 (2d Cir. 2013), the plaintiff had a condition that he treated with calibrated medication. The employer had a flex-time policy allowing employees to arrive anytime between 9:00 and 10:00 a.m. Employees could leave between 5:00 and 6:00 p.m. Because of the plaintiff’s medications, he often arrived late to work, sometimes after 11:00 a.m. For a period of 10 years, the plaintiff’s late arrivals were either explicitly or tacitly approved. The employer refused to allow the plaintiff a later flex time arrival of between 10:00 and 11:00 a.m. The plaintiff filed a claim under the ADA.

The Court held that physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. The Court found that because the employer’s flex time policy permitted all employees to arrive and leave within one-hour windows, this implied that punctuality and presence at precise times may not have been essential. The Court ruled that while a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the plaintiff. The Court sent the case back for a detailed analysis of the facts which could undermine the employer’s claim that a specific arrival time was an essential function of the plaintiff’s position.

 

You May Look But You May Not Touch

In Larry v. Bag-craft Papercon I, LLC, 2013 WL 1174653 (N.D. Ill. 2013), the employee alleged that her supervisor offered to buy her cologne, complimented her shirt once or twice while staring at her chest, and asked if the employee dated Mexican men. The supervisor offered to take her out for her birthday. These were all of the facts the plaintiff alleged to support her claim for a Title VII hostile work environment. The Court held the allegations did not show severe or pervasive conduct which is required for a Title VII hostile work environment claim. The Court found the behavior did not interfere with the employee’s ability to do her job. The supervisor never physically touched her.

 

Your Requirement Of A Mental Examination Before An Employee Returns To Work May Not Violate The Ada

In Owusu-Ansah v. Coca-Cola Co., 2013 WL 1896978 (11th Cir. 2013), the employer required medical examinations and made inquiries as to whether an employee had a disability when a former employee returned to work. Here, the employee had been placed on paid leave after allegedly making threats against other employees and the employee was required to undergo a psychiatric/psychological fitness-for-duty evaluation before returning to work. The Court held the evaluation was job-related and consistent with business necessity. This was because the employee’s ability to handle stress and work well with others was essential for his position. Further, the employer had reasonable objective concerns about the employee’s mental state and the safety of its staff. This concern was based on the employee’s meeting with his supervisor in which the employee allegedly expressed concerns about discrimination, banged his fist on a table, and claimed someone was “going to pay.” In addition, the employee had already consulted with a staff psychologist and an outside psychiatrist.

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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