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McKenna Employment Bulletin – March 2013

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Employer Must Know Of Co-Worker Harassment To Be Liable

In Hernandez v. Yellow Transp., Inc., 2012 WL 400569 (5th Cir. 2012), an employee failed to show that his employer should have known he was harassed because of his association with non-minorities as required to support a Title VII hostile work environment claim. In fact, the employee denied that he told management about the alleged harassment and admitted that he did not follow harassment procedures in the employee manual. There was evidence that management was aware that the employee was being referred to by a profane nickname. However, there was no evidence that the nickname was in response to his association with minorities.


No Retaliation Against Non-Employer For Alleged Acts Of Former Employer

In Alam v Miller Brewing Co., No. 11-2456, February 27, 2013 (7th Cir.), the plaintiff alleged in his Title VII action that the defendant, at the direction of the plaintiff’s former employer, refused to do business with the plaintiff in retaliation for the plaintiff having filed a prior discrimination claim against the former employer. The court held the plaintiff had no claim because he failed to sufficiently allege that the defendant was a potential employer for purposes of Title VII where the plaintiff’s potential employment would have been as an independent contractor. The plaintiff also failed to allege that the defendant controlled any aspect of plaintiff’s relationship with the plaintiff’s former employer. Furthermore, the plaintiff could not proceed against his former employer on a similar retaliation claim because the plaintiff failed to list the former employer in his EEOC charge. The plaintiff also failed to allege that his former employer had actual notice of the EEOC charge and an opportunity to participate in the proceedings on the charge.


No Age Claim For A Work Performance Dispute

In Teruggi v. The Cit Group/Capital Finance, Inc., No. 12-2314, February 21, 2013 (7th Cir.), the plaintiff alleged that his employer terminated the plaintiff on account of his disability and his age. The court held the plaintiff did not have a claim. While the plaintiff argued that the defendant terminated him for a minor infraction that not justify termination, plaintiff’s evidence, at best, simply called into question the wisdom of the termination decision. It failed to demonstrate that the decision was based on the plaintiff’s age or disability. Furthermore, while the plaintiff’s supervisor made comments regarding the plaintiff’s retirement plans, about being old and being on drugs, this evidence did not establish discriminatory motive because the comments were made at least 18 months prior to the termination decision.





No Duty To Return An Employee To A Former Position After Fmla Leave If The Employee Cannot Perform The Job Duties

In James v. Hyatt Regency Chicago, No. 12-1511, February 13, 2013 (7th Cir.), in an FMLA action the employee alleged that the defendant wrongfully required the plaintiff to remain on FMLA leave and refused to promptly reinstate him to his job after the plaintiff’s physician released the plaintiff to work on a “light-duty” status. The court held there is no duty under the FMLA to return an employee to a former position where the plaintiff could not do all essential duties of the former position under the terms of his release and prior to the scheduled return date, the plaintiff presented defendant with additional doctor certifications indicating that the plaintiff was completely unable to do any work in any capacity. Furthermore, the plaintiff could not establish FMLA retaliation because the record showed that the employer made several attempts to return the plaintiff to work by seeking clarification on two limited releases; the plaintiff failed to respond to defendant’s requests for clarification; and once the defendant received a clarifying letter from one physician, the employer promptly scheduled a meeting with the plaintiff to discuss his return.


Basis Of A Harassment Suit Must Be Set Forth In The Eeoc Charge

In Smith v. Rosebud Farmstand, 2012 WL 5562769 (N.D. Ill. 2012), a male butcher filed a Title VII suit alleging racial harassment. The court held that the scope of the plaintiff’s EEOC charge asserted only sexual harassment and two incidents of racial discrimination. Therefore, the racial harassment claims were not administratively exhausted. This was because the butcher made no mention of harassment on account of race in his statement of bases for the EEOC charge or in the body of the EEOC charge. He did not mention in the EEOC charge any of the alleged racial comments that he asserted in his Title VII lawsuit. His prior allegations of sexual harassment and race discrimination in the EEOC charge were specific.


Knee Injuries Did Not Limit A Major Life Activity

In Perrywatson v. United Air Lines, Inc., 2013 WL 69126 (N.D. Ill. 2013), the plaintiff filed an ADA action against her union claiming disability based entirely on an injury to her left knee in 2000 and an injury to her right knee in 2004. Judgment was entered for the union because the plaintiff failed to establish whether she had an impairment that limited a major life activity such as working or walking. The employee also failed to establish whether her union regarded her as disabled.


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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