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

-Oliver Wendell Holmes, Jr.

McKenna Employment Bulletin – May 2015

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  • SEVEN MONTH GAP AFTER FMLA LEAVE PREVENTS RETALIATION
  • SECLUDING AN EMPLOYEE FROM THE WORKPLACE SUPPORTS A COMPENSATORY DAMAGE AWARD
  • THE PERSON TERMINATING MUST KNOW THE BIAS OF THE PERSON RECOMMENDING THE TERMINATION IN ORDER FOR THE BIAS TO SUPPORT A CAUSE OF ACTION
  • YOUR DISCRETIONARY BONUS PLAN MAY SUPPORT A BREACH OF CONTRACT CLAIM
  • YOUR AGE-RELATED COMMENTS CAN SUPPORT AN ADEA CLAIM AND RETALIATION
  • PERFORMANCE DEFICIENCIES STOP AN FMLA CLAIM

 

SEVEN MONTH GAP AFTER FMLA LEAVE PREVENTS RETALIATION

In Carter v. Chicago State University, No. 13-3367, February 11, 2015, 7th Circuit, the plaintiff alleged that his employer failed to appoint him to an acting department chair of defendant’s Department of Accounting and Finance in retaliation for the plaintiff taking an FMLA leave of absence. The court held that the plaintiff could not establish the necessary causal connection where there was a 7-month gap between his return from the FMLA leave of absence and the date of appointment to the acting department chair. The court ruled that the fact that the decision-maker simply selected another individual over the plaintiff for a different appointment to the same position did not generate any inference of retaliatory bias. The plaintiff also failed to present any evidence to show that he was equally or more qualified than the person who was selected for the position.
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SECLUDING AN EMPLOYEE FROM THE WORKPLACE SUPPORTS A COMPENSATORY DAMAGE AWARD

In Reed v. Columbia St. Mary’s Hospital, No. 14-2592, March 30, 2015, 7th Circuit, the plaintiff filed actions under the Americans with Disabilities Act (ADA) and the Rehabilitation Act claiming that the defendant-hospital discriminated against her on the basis of her neurological disorder by ignoring her requests, treating her poorly, and injuring her while forcibly discharging her. The court held that the plaintiff could seek compensatory (emotional) damages under both the ADA and the Rehabilitation Act, where the plaintiff alleged that (1) the hospital, with knowledge of her disability, purposely denied her access to a computer as a means to communicate with the hospital’s staff when she sought assistance from them; and (2) the hospital had retaliated against her for seeking her computer by throwing her in a “seclusion” room.
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THE PERSON TERMINATING MUST KNOW THE BIAS OF THE PERSON RECOMMENDING THE TERMINATION IN ORDER FOR THE BIAS TO SUPPORT A CAUSE OF ACTION

In Cipolla v. The Village of Oak Lawn, 2015 IL App (1st) 132228, the plaintiff sued the Village of Oak Lawn for age discrimination because she was terminated at age 59. The Village Finance Department Director had recommended eliminating the plaintiff’s position to the Village Manager. The plaintiff claimed the Finance Department Director’s age bias influenced her termination by the Village Manager. The court held that the theory allowing the bias of the person recommending termination to be transferred to the person doing the terminating (“cat’s paw” liability) was not applicable because there was no clear evidence that the Village Finance Department Director, who recommended eliminating the plaintiff’s position, had discriminatory intent and had a “singular influence” on the Village Manager. The Village Manager told the plaintiff her position was being terminated due to a budget gap.
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YOUR DISCRETIONARY BONUS PLAN MAY SUPPORT A BREACH OF CONTRACT CLAIM

In McCleary v. Wells Fargo Securities, LLC, 2015 IL App (1st) 141287, the plaintiff filed a complaint against his former employer alleging sufficient facts to show, if proven, that the plaintiff would be entitled to relief for breach of contract, violation of the Illinois Wage Payment and Collect Act, and unjust enrichment. Under the employer’s bonus plan, the employer awarded bonuses to employees at his discretion. The court held that the employer’s discretion to award bonuses under the “Group Bonus Plan” did not foreclose the plaintiff’s action seeking a remedy based on a breach of the implied covenant of good faith and fair dealing for abusing that discretion.
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YOUR AGE-RELATED COMMENTS CAN SUPPORT AN ADEA CLAIM AND RETALIATION

In Soto-Feliciano v. Villa Cofresi Hotels, Inc., 2015 WL 727968 (1st Circuit 2015), a former employee brought a discrimination and retaliation claim under the ADEA. The employee, the head chef in the hotel’s kitchen, was suspended and then terminated, purportedly because of alleged misconduct on the job. However, he presented evidence of age-related comments by his direct kitchen supervisor and the hotel’s head of Human Resources who is also a member of the family which owned and operated the hotel. Therefore, a fact issue existed as to whether the legitimate, nonretaliatory reason for the adverse actions, alleged misconduct on the job, was a pretext to retaliate for the employee’s complaints to the hotel management and his visit to the Anti-Discrimination Unit at the Department of Labor.
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PERFORMANCE DEFICIENCIES STOP AN FMLA CLAIM

In Dalton v. ManorCare of West Des Moines IA, 2015 WL 1527737 (8th Circuit 2015), an employee had a chronic serious health condition so that her hospital visit was protected, and she filed a claim under the FMLA. However, her employer had a legitimate reason for her termination based on her performance deficiencies. Prior to her absence, the employee was given a Third/Final Written Warning for performance deficiencies unrelated either to her medical condition or to attendance issues. When the employee returned to work, the employer resumed the disciplinary process, and concluded that the employee had violated more performance work rules after returning from her FMLA leave. Further, the employer terminated the employee consistent with the disciplinary provisions in its employee handbook.
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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 Employment Law Publications



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