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

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McKenna Employment Bulletin – March 2014

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  • THE SUPERVISOR OF YOUR MANAGER MAY BE A COMPARATOR TO YOUR MANAGER
  • CONFLICTS IN EVIDENCE KEEP AN AGE CLAIM ALIVE
  • PHONY PROMISE OF JOB MAY PREVENT A FAILURE TO HIRE CLAIM
  • TAKING CARE OF YOUR MOTHER IN LAS VEGAS MAY BE FMLA LEAVE
  • INSUBORDINATE EMAILS STOP AN ADEA AND NATIONAL ORIGIN CLAIM
  • TERMINATION AFTER NOTICE TO THE EMPLOYER OF HIGH BLOOD PRESSURE MAY BRING AN ADA CLAIM

 

THE SUPERVISOR OF YOUR MANAGER MAY BE A COMPARATOR TO YOUR MANAGER

In Perez v. Thornton’s Inc. No. 12-3669, September 30, 2013, 7th Circuit, the employee manager brought a Title VII action alleging that the employer terminated the employee from her store manager position on account of her gender and national origin. The record supported the employer’s conclusion that the plaintiff had committed a work place infraction by selling a large quantity of candy to herself at an unauthorized discount price. However, there was also evidence that the employer gave unwarranted preferential treatment to the employee’s male, non-Hispanic supervisor when the employer failed to terminate the supervisor for committing the similar infraction of making dummy purchases of beer on his personal credit card in an alleged effort to cover up the fact that the store had been missing a quantity of beer. The court held that even though the supervisor’s actions did not cause a loss to the employer, both the supervisor and the manager’s infractions were sufficiently similar to require a jury to resolve the employee’s disparate treatment claim..
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CONFLICTS IN EVIDENCE KEEP AN AGE CLAIM ALIVE

In Johnson v. Securitas Sec. Services USA, Inc., 2013 WL 4504589 (8th Circuit 2013), a terminated security guard brought an age discrimination claim. The guard established that he was discharged from his position at age 76, that he was meeting his employer’s job expectations prior to an onsite vehicle accident, and that his supervisor, who commented about the guards advanced age, compared him to his elderly father and encouraged him to retire. The employer’s alleged reason for the guard’s discharge was because the guard failed to report a vehicular accident in a timely manner, left his post early, and failed to participate in the company investigation of the vehicular accident. The court found that questions of fact existed as to whether the guard actually left his post prior to the end of a shift, whether the Human Resources Director was even aware of the guard’s age when she terminated him, whether the supervisor who was the source of the alleged age-related comments even played a role in the guard’s termination, and whether similarly situated employees who also had work-related vehicle accidents were treated differently following their accidents.
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PHONY PROMISE OF JOB MAY PREVENT A FAILURE TO HIRE CLAIM

In Wilson v. Cook County, No. 13-1464, February 10, 2014), 7th Circuit, the plaintiff filed a Title VII action alleging that the Defendant’s employee used the promise of a phony job to convince the plaintiff, job applicant, to give the Defendant’s employee erotic massages and to engage in other sexual conduct. The court held that Title VII protects job applicants even though there is no employer/employee relationship at the time of the adverse act. But, the court held that the plaintiff could not proceed in her failure to hire claim because the employee to whom she talked to was wholly unable to hire the applicant at all. There was no "massage therapist" position to which the plaintiff had applied. Further, the record showed that the Defendant employee’s conduct, rather than any policy of the Defendant employer, was the moving force behind the adverse act. Finally, the plaintiff failed to show that the Defendant employee’s coercion of female employees in a different job with a different employer seven years prior to the present adverse act was sufficiently similar to hold the defendant employer responsible for the employee’s conduct.

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TAKING CARE OF YOUR MOTHER IN LAS VEGAS MAY BE FMLA LEAVE

In Ballard v. Chicago Park District No. 13-1445, January 28, 2014, 7th Circuit, the plaintiff filed an action alleging that her termination for taking accumulated unauthorized absences violated the FMLA. The plaintiff spent six days of unapproved absence taking care of her mother during a Las Vegas pleasure trip. The employer argued that the plaintiff’s time spent during the trip was not covered under the FMLA because her trip was not related to a continuing course of the mother’s medical treatment. The court found that the time spent on the trip was covered under the FMLA because the plaintiff tended to her mother’s basic medical, hygienic and nutritional needs during the trip. Further, the court said the employer’s concern that employees will abuse the FMLA by taking similar leaves can be resolved by insisting that employees obtain certification for such a trip from a medical provider. The court ruled that even though the care was not part of ongoing treatment for the mother’s condition that it did not require a different result.
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INSUBORDINATE EMAILS STOP AN ADEA AND NATIONAL ORIGIN CLAIM

In Zayas v. Rockford Memorial Hospital, No. 13-2555, January 30, 2014, 7th Circuit, the plaintiff filed a Title VII and ADEA action alleging that the employer terminated the plaintiff from her ultrasound technician position on account of her age and national origin. However, the record showed that the plaintiff was terminated after she sent insubordinate emails to her supervisor after having being previously warned not to do so. The fact that the plaintiff was the oldest technician and that she was replaced by a younger employee was insufficient by itself to establish a viable age discrimination claim. Moreover, the court found that the plaintiff’s insubordinate emails established that the plaintiff was not meeting her employer’s job expectations at the time of her termination.
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TERMINATION AFTER NOTICE TO THE EMPLOYER OF HIGH BLOOD PRESSURE MAY BRING AN ADA CLAIM

In Gogos v. AMS Mechanical Systems, Inc., 2013 WL 6571712, (7th Circuit), the court held that the employee stated a plausible disability discrimination claim under the ADA. The employee alleged that he was disabled because his episode of very high blood pressure, intermittent blindness, and chronic blood-pressure condition substantially impaired his major life activities involving his circulatory function and eyesight. The employee also alleged that he was qualified to perform the essential functions of his job. Finally, the plaintiff alleged that he suffered an adverse employment action because of his disability because he was fired immediately after he reported his medical conditions to his foreman.
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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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