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McKenna Employment Bulletin – January 2013


Honest Belief That An Employee Is Misusing Fmla Leave Defeats An Fmla Claim

In Scruggs v. Carrier Corp., No. 11-3420, August 3, 2012, Seventh Circuit, the employee alleged that the employer interfered with the employee’s exercise of his FMLA rights by terminating him after discovery through surveillance video that the employee was not tending to the needs of his mother as represented in his FMLA leave request. The employee disputed the employer’s claim that he had misused his FMLA leave and produced paperwork from his mother’s nursing home to support the employee’s contention. The Court found, however, the record was undisputed that the employer had an honest belief that the employee had misused said leave where review of the video surveillance indicated that the employee had not left home on the day of the requested leave and where the employee’s paperwork contained inconsistent information regarding the employee’s alleged presence in the nursing home.  

Oral Complaints Support A Retaliation Charge Under The Flsa

In Kasten v. Saint-Gobain Performance Plastics Corp., No. 12-1671, November 30, 2012, the plaintiff alleged retaliation under the Fair Labor Standards Act for lodging oral complaints regarding the placement of a time clock in the work place. The Court ruled that the oral complaints were sufficient to support a retaliation charge under Section 215(a)(3) of the Fair Labor Standards Act. The Court ruled the complaints were sufficient to put the employer on notice regarding a potential FLSA violation. This was because the record contained evidence that the employer punished the plaintiff more severely than his co-workers with respect to his own time clock violations after he made the oral complaints; the co-workers suggested to the plaintiff shortly before his termination that he was at risk of termination if he did not cease complaining about placement of time clocks; the employer changed the location of the time clock on the day the plaintiff was terminated; and the employer provided inconsistent explanations regarding the reason for the plaintiff’s termination.  

Request For Fmla Leave Must Be Specific To Put Employer On Notice

In Nicholson v. Pulte Homes Corp., 2012 WL 3217620 (7th Cir. 2012), the employee told her employer about her father’s cancer diagnosis and said that she might need time off due to her      father’s possible need for chemotherapy. The employee later told her supervisor that her father’s diagnosis had worsened to Stage III cancer, but did not mention a possible need for additional time off. When she requested time-off her request was granted. The Court held that the employee’s statements to her employer did not put the employer on notice that the employee wanted FMLA-qualifying leave.  

Corporations Of Any Kind Engaged In Social Services Are Subject To The Federal Rehabilitation Act

In Doe v. Salvation Army in U.S., 2012 WL 2816809 (6th Cir. 2012), the Court ruled that a corporation of any kind, whether religious or otherwise, could be “principally engaged” in the business of providing social services. If a corporation provides those services, they are subject to the Federal Rehabilitation Act. The important requirement is that the corporation primarily takes part in matters that promote social well-being, even if the corporation’s provision of those social services is done as a form of religious exercise. Thus, the Salvation Army was held subject to the Rehabilitation Act because nothing in the Act categorically excluded religious organizations from its requirements.  

Allegations Of Pattern And Practice With Specific Events Supports A Class Action

In Keys v. Humana, Inc., 2012 WL 2505534 (6th Cir. 2012), an African-American employee alleged that the employer had a pattern or practice of discrimination against African-American managers and professional staff in hiring, compensation, promotion, discipline and termination. The employee alleged specific events in each category in which she was treated differently than her Caucasian counterparts. The employee even identified key supervisors and other relevant persons by race and name or title. She further alleged that she and other African-American employees received specific adverse employment actions despite their satisfactory employment performances. The Court in Keys held that these allegations were sufficient to support a putative class action alleging discrimination under Title VII and 42 USC § 1981.  

Statistical Evidence Which Did Not Show A Common Practice Of Intentional Discrimination Did Not Support A Class Action

In Bolden v. Walsh Group, 2012 WL 1079893 (N.D. Ill. 2012), the plaintiff submitted limited statistical evidence that the company’s policy of supervisory discretion resulted in fewer work hours, less overtime and fewer promotions for black journeymen. This was the only evidence of company-wide racial disparities. The Court found that this statistical evidence did not demonstrate that there was a common practice of intentional discrimination at individual sites, and anecdotal evidence of discrimination applied to no more than seven of the company’s 262 sites. Therefore, the court ruled that the representatives of a putative class of black construction workers failed to demonstrate the common questions of law or fact required for certification of a Title VII disparate treatment class.  

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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