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McKenna Employment Bulletin – Sept. 2013

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Failure To Perform Your Job Will Prevent Your Suit For Wrongful Termination

In Hester v. Indiana State Dept. of Health, No. 12-3207, August 9, 2013, Seventh Circuit, the plaintiff alleged that the employer failed to promote the plaintiff and then ultimately terminated him on account of his race, gender and age. But the employer terminated the plaintiff because he had failed to accurately test certain substances required for his job. The employee failed to present any evidence of either race, gender or age discrimination with respect to his failure to promote claim. This was because the initial successful candidate shared two of the plaintiff’s collected classifications, the plaintiff failed to show any pattern of disfavoring males for subject position and the plaintiff failed to present evidence that the reasons the defendant gave for promoting the successful candidates were untrue. Furthermore, regarding the plaintiff’s termination, the plaintiff failed to present a suitable comparative employee who had received more favorable treatment after having been similarly placed on a work improvement plan like the plaintiff for failing a competency test.

Fighting With Your Co-Worker In Front Of Witnesses Results In Termination

In Johnson v. Koppers, Inc., No. 12-2561, August 8, 2013, Seventh Circuit, the plaintiff alleged that the employer terminated the plaintiff on account of her race and gender. However, the plaintiff’s termination was based on an incident in which third-party independent witnesses saw the plaintiff push a male co-worker into a wall. Further, the plaintiff’s disciplinary history included incidents of verbal altercations and threats of violence to co-workers. The plaintiff used the “cats paw” theory and tried to show a link between the racial animosity of her male co- worker and management’s decision to terminate her. However, the plaintiff could only speculate as to the male co-worker’s discriminatory bias even if the employee could show that her co- worker provided a false account of the shoving incident.

To Show Discrimination The Comparator Worker Need Not Work For The Same Supervisor

In Louzon v. Ford Motor Co., 2013 WL 2398042 (6th Cir. 2013), the plaintiff brought an action against the employer alleging age discrimination under the ADEA and national origin discrimination under Title VII. The only comparator the plaintiff could name was a comparator who was not working for the same supervisor as the plaintiff. The question was whether that comparator should have been given significant weight. The Court ruled that it should because the pool of potential comparators for the employee would have amounted to no more than a few individuals due to the general management structure if the comparator had not been given significant weight. The Court found that not accepting the comparator would have rendered the employee’s burden of naming a comparator virtually impossible.

Employers May Need To Grant Leave For Burial Ceremonies

In Adeyeye v. Heartland Sweeteners, LLC, No. 12-3820, July 31, 2013, Seventh Circuit, the employee alleged that the employer failed to accommodate his religion when the employer terminated him after refusing his request to travel to Africa to participate in a month-long burial ceremony for his deceased father. The defendant argued that the plaintiff failed to give adequate notice of the religious nature of his request for unpaid leave. However, the employee had referred to his father’s “funeral ceremony,” “funeral rite,” and animal sacrifices. The Court held this was sufficient to convey the religious nature of the employee’s request. Also, the plaintiff presented evidence establishing the sincerity of his religious beliefs where he gave the employer a detailed description of the ceremonies and religious consequences for any failure to participate in the ceremonies. Finally, the employer could have easily accommodated the employee’s request without disrupting the work force because the employer had the ability to bring in extra temporary workers to cover the employee’s job.

Don’T Threaten Your Employer During An Eeoc Mediation

In Benes v. A.B. Date, Ltd., No. 13-1166, July 26, 2013, the employee alleged a Title VII retaliation action where the employer terminated the plaintiff immediately after a confrontation during an EEOC-sponsored mediation session. The mediation was for the employee’s pending sex discrimination claim. During the mediation, the employee barged into the employer’s private mediation room and stated “you can take your proposal and shove it up your ass and fire me and I’ll see you in court.” The Court held that the employee’s ensuing termination was for misconduct during the mediation session and not because of the plaintiff’s participation in the EEOC proceeding. Further, and contrary to the employee’s position, the Court held that the prospect of being fired for the instant violation of mediation procedures would not generate an inference of unlawful retaliation since the termination would not discourage a reasonable worker from participating in EEOC investigations.

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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