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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 2014

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  • FMLA LEAVE INCLUDES CARE OF AN ADULT CHILD
  • EMPLOYEE CAN FILE TITLE VII ACTION DESPITE AN ARBITRATION CLAUSE IN A UNION CONTRACT
  • FAILURE TO SHOW SIMILARLY SITUATED CO-WORKER STOPS AN AGE AND RETALIATION CLAIM
  • SHOWING SIMILARLY SITUATED CO-WORKER WAS TREATED MORE FAVORABLY SUPPORTS SEX DISCRIMINATION
  • REQUESTS FOR ACCOMMODATION MUST RELATE TO THE ALLEGED DISABILITY
  • EMPLOYEE’S MISCONDUCT AND INSUBORDINATION STOP A RACE CLAIM

 

FMLA LEAVE INCLUDES CARE OF AN ADULT CHILD

In Gienapp v. Harbor Crest, No. 14-1053, June 24, 2014, 7th Circuit, the plaintiff in an FMLA action alleged that the defendant employer violated the plaintiff’s rights under the FMLA by assigning her job to a third-party when the plaintiff attempted to come back to her job after taking care of the medical needs of her adult child. The court held that the plaintiff’s care of her adult child was covered under the FMLA. The court rejected the employer’s claim that any time spent by plaintiff taking care of adult children disqualified the employee from taking any FMLA leave. Also, the court ruled that the employer could not argue that the plaintiff failed to keep it adequately informed about the nature of the leave, even though the plaintiff failed to indicate on the FMLA form as to when she anticipated returning to the workforce. This was because the plaintiff regularly contacted the employer throughout her leave and the employer could have clarified the plaintiff’s return to work date during those contacts.
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EMPLOYEE CAN FILE TITLE VII ACTION DESPITE AN ARBITRATION CLAUSE IN A UNION CONTRACT

In Carlson v. CSX Transportation, Inc., Nos. 13-1944 & 13-2054, July 10, 2014, 7th Circuit, the plaintiff-employee alleged a Title VII sex discrimination and retaliation claim against the defendant-railroad employer. The plaintiff alleged that the employer harassed her in her manager training program and denied her request for placement into certain positions on account of her gender and in retaliation for having filed a prior discrimination claim. The court ruled the plaintiff could proceed on her claim despite an arbitration provision in the collective bargaining agreement because the resolution of the Title VII claims did not depend on an interpretation of the collective bargaining agreement. The court reaffirmed the Rule that in a complaint at the pleading stage the plaintiff does not need to allege "evidence" that supports the allegations. The court also ruled that the plaintiff could bring her retaliation claim even though the adverse action took place 5 months after the protective activity. This was because the plaintiff also alleged a similar retaliation claim based on a failure to promote the plaintiff to the same position and that failure to promote occurred only 1 month after the protected conduct.
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FAILURE TO SHOW SIMILARLY SITUATED CO-WORKER STOPS AN AGE AND RETALIATION CLAIM

In Hutt v. AbbVie Products LLC, No. 13-1481, July 7, 2014, 7th Circuit, the plaintiff filed an action alleging that the defendant–employer placed the employee on a warning status and gave her a poor job performance rating that affected her ability to obtain bonuses because of the plaintiff’s age and in retaliation for the plaintiff having filed an EEOC charge. The court held that the plaintiff failed to establish the existence of similarly situated younger co-workers who received more favorable treatment. The court found that the fact that the supervisor requested that all employees provide their birth dates did not constitute direct evidence of age discrimination. Further, the court ruled the plaintiff could not establish a causal connection with respect to her retaliation claim because the plaintiff had already been placed on warning status at the time she filed her EEOC charge, and the plaintiff could only speculate that her retention on warning status was the result of her filing the EEOC charge.
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SHOWING SIMILARLY SITUATED CO-WORKER WAS TREATED MORE FAVORABLY SUPPORTS SEX DISCRIMINATION

In Orton-Bell v. State of Indiana, No. 13-1235, July 21, 2014, 7th Circuit, the plaintiff filed a Title VII action alleging that her employer subjected her to a hostile work environment and eventually terminated her based on her gender. The court held the plaintiff could establish a hostile work environment claim based on her allegations that the supervisor and co-workers subjected her to a daily barrage of sexual comments and to an offensive pat down search in the plaintiff’s prison job. Further, the court held the plaintiff could establish sex discrimination based on allegations of disparate treatment where both plaintiff and a male co-worker were terminated for having a sexual affair with each other, but the male co-worker was allowed to return to his job on a contractual basis, while the defendant barred the plaintiff from returning to her job in any capacity. The court further held that the plaintiff could not support a hostile environment claim based on her allegations that co-workers engaged in nightly sexual encounters on her work desk because the plaintiff could not show that the co-workers’ conduct was based on the plaintiff’s gender.
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REQUESTS FOR ACCOMMODATION MUST RELATE TO THE ALLEGED DISABILITY

In Reeves v. Jewel Food Stores, Inc., No. 13-3782, July 17, 2014, 7th Circuit, the plaintiff in an ADA claim alleged that the defendant-employer terminated him on account of his mental disability. However, the record showed that the defendant terminated the plaintiff after receiving a report that the plaintiff had cursed at a co-worker in violation of company policy. Additionally, the court held that the plaintiff could not establish a viable failure to accommodate claim, where the plaintiff’s prior request for accommodation did not pertain to assisting him in curbing his verbal outbursts towards his co-workers.
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EMPLOYEE’S MISCONDUCT AND INSUBORDINATION STOP A RACE CLAIM

In Tank v. T-Mobile USA, Inc., No. 13-1912, July 10, 2014, 7th Cir. 2014, the plaintiff filed an action alleging that the employer terminated the plaintiff on account of the plaintiff’s race, national origin and in retaliation for complaining of discrimination. But, the record showed that the plaintiff was terminated after the employer conducted an investigation that revealed the existence of plaintiff’s misconduct towards others. The record further showed that the plaintiff’s insubordination arose out of the plaintiff’s hiring of an individual whom the plaintiff’s supervisor wanted terminated. The court ruled the plaintiff failed to present evidence that the employer’s investigation was suspicious or that it was conducted in a manner that departed from the employer’s normal procedures. The court found that the plaintiff further failed to show that his co-workers who committed similar infractions received more favorable treatment. Finally, the court found the plaintiff failed to establish a pay discrimination claim, although the plaintiff was paid less than certain co-workers in the same job classification, because the plaintiff failed to show that the co-workers were subject to the same compensation scheme or had comparable experience, education or qualifications to the plaintiff.
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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. 

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