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

-Oliver Wendell Holmes, Jr.

McKenna Employment Bulletin – July 2015

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  • PUT THE LEVEL OF PERFORMANCE IN YOUR EMPLOYEE CONTRACTS TO PROTECT FROM BREACH OF CONTRACT ACTIONS
  • A DOCTOR’S SHORT-TERM MEMORY LOSS COULD NOT BE ACCOMMODATED BY HIS EMPLOYER
  • NO FACTUAL BASIS STOPS CHARGES OF RACE AND RETALIATION
  • VIRGINIA PATIENT AWARDED VERDICT FOR TAPED DEFAMATORY AND OFFENSIVE STATEMENTS
  • RIGHTS FOR SAME-SEX COUPLES TO MARRY
  • SHORT TIME BETWEEN PROTECTED ACTIVITY AND TERMINATION PLUS THREATS SUPPORT A RETALIATION CLAIM

 

PUT THE LEVEL OF PERFORMANCE IN YOUR EMPLOYEE CONTRACTS TO PROTECT FROM BREACH OF CONTRACT ACTIONS

In Eakins v. Hanna Cylinders, 2015 IL App (2dd) 140944, the plaintiff was hired as plant manager under a letter of agreement with a minimum term of employment of 24 months. He was terminated after 14 months, and filed suit for wages due and owing pursuant to a breach of employment contract action. The Court found that the letter of agreement clearly specified the fixed term of 24 months. Most important, the plaintiff’s level of performance was not among the contract terms, and was not a basis for terminating the plaintiff. Thus, the Court held that the employer had breached the contract, and the written agreement supported the plaintiff’s breach of contract action.
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A DOCTOR’S SHORT-TERM MEMORY LOSS COULD NOT BE ACCOMMODATED BY HIS EMPLOYER

In Stern v. St. Anthony’s Health Center, No. 14-2400, June 4, 2015, 7th Cir., the plaintiff alleged in an ADA action that his employer terminated the plaintiff/physician after a neutral evaluator gave an opinion that the plaintiff’s short-term memory deficiencies rendered him unfit for duty. The defendant never engaged the plaintiff in any required interactive process to determine the existence of any appropriate accommodations, even though the defendant’s staff talked amongst themselves about issues of potential accommodations. The Court held, however, that the plaintiff could not prevail on his ADA claim because he failed to show that he could have performed his job with or without accommodations. The Court also held that the defendant’s duty to accommodate did not extend to removal of any of his essential job duties. The plaintiff’s physician could do no more than state that it was “possible” that plaintiff could perform his job under certain proposed accommodations. The Court found this was insufficient evidence that the plaintiff could actually perform his job because the physician’s suggested accommodations were untested.
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NO FACTUAL BASIS STOPS CHARGES OF RACE AND RETALIATION

In Mintz v. Caterpillar, Inc., No. 14-1881, June 5, 2015, 7th Cir., in a Title VII action, the plaintiff alleged that defendant gave the plaintiff a substandard performance evaluation that caused him to incur a reduced bonus, and that it was on account of his race and in retaliation for having complained of racial discrimination. However, the plaintiff failed to present any evidence of race-based or retaliatory comments from his supervisors. The record otherwise showed that the plaintiff was not meeting his employer’s legitimate expectations with respect to addressing both certain variance reports and engineering change orders.
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VIRGINIA PATIENT AWARDED VERDICT FOR TAPED DEFAMATORY AND OFFENSIVE STATEMENTS

A jury has awarded $500,000 to a man who recorded his colonoscopy surgery and was subjected to offensive comments while under anesthesia. He later replayed the recording and discovered that at least one of the doctors working on him made offensive comments about him as he was under anesthesia.

This is a great reminder that most people with telephones have built-in recording devices. Some states allow recording with just the consent of one party, while others require the consent of all parties being recorded. Nevertheless, today, the argument of “he said,” “she said” in the workplace may be backed up by a cell phone recording, and these recordings may be subject to discovery and use at trial.
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RIGHTS FOR SAME-SEX COUPLES TO MARRY

In a long-awaited landmark decision, a divided U.S. Supreme Court ruled in Obergefell v. Hodgers, that same-sex couples can marry in every state, and that states may no longer reserve the right only for heterosexual couples.

In the 5-4 ruling, Justice Anthony Kennedy wrote for the majority: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” and “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Employers in all states should carefully examine their employment policies and practices to ensure that they provide equal treatment of all married persons.
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SHORT TIME BETWEEN PROTECTED ACTIVITY AND TERMINATION PLUS THREATS SUPPORT A RETALIATION CLAIM

In Washington v. Office of the State Appellate Defender, 2015 WL 1345715 (N.D. Ill. 2015), a four-day period elapsed between the Office of the State Appellate Defenders’ receipt of an African-American employee’s internal grievance complaining of race and disability discrimination and the date that the head of the OSAD demanded the plaintiff’s resignation. The employee had engaged in protected activity when she filed the grievance because she was complaining about alleged discrimination based on her protected status. Furthermore, the District Court found direct evidence of retaliatory motive because the head of the OSAD knew about the grievance and, after the employee resigned and filed a complaint with Illinois Department of Human Rights, the head of the OSAD called the employee at her home and threatened to interfere with any efforts she might make to seek employment with another state agency. The Court found that this raised an inference of retaliatory motive, as required to support the employee’s claim for retaliation under Title VII.
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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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