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-Oliver Wendell Holmes, Jr.

McKenna Employment Bulletin – June 2013


Stealing From The Cash Register Stops An Fmla And Retaliation Claim

In Donald v. Syba, Inc., 2012 WL 117613 (6th Cir. 2012), an employee was terminated on the day she returned from a three day medical leave. At that time, the supervisor made an isolated comment that the employee should go on disability like the supervisor’s husband. The Court ruled this did not establish that the employer’s given reason for terminating the employee, that the employee entered customer orders improperly to steal cash from the register, was a pretext for FMLA interference or FMLA retaliation. The investigation into the irregularities in the employee’s cash register drawer took place while the employee was still working, but the termination did not occur until the day the employee returned from medical leave. Further, the supervisor’s comment occurred while the women worked alongside of each other talking about their personal lives and there was no subtext of animus in the comment.


The Duty To Investigate Harassment Is Ongoing

In May v. Chrysler, LLC., Nos. 11-3000 and 11-3109 (May 14, 2013), Seventh Circuit, the employee alleged in a Title VII and Section 1981 action that the employer failed to take reasonable steps to stop racist, homophobic and anti-Semitic harassment and death threats targeted at the employee by unknown co-workers. The evidence showed that the employer failed to take reasonable steps to protect the employee from harassment. The employee produced evidence of over 70 incidents of harassment in a three year period. While the employer conducted two meetings and hired a handwriting expert in an unsuccessful effort to monitor the situation and to identify the culprits, the employer took no other steps. The employer did not interview nineteen suspects identified by the employee during a two year period. The court held that the judgment against the employer was supported by the evidence.


Attendance On A Regular Basis Is An Essential Function Of A Job

In Basden v. Professional Transportation, Inc., No. 11-2880 (May 8, 2013), Seventh Circuit, the plaintiff in an ADA action alleged that the employer terminated the employee on account of her multiple sclerosis condition. The employer had denied the employee’s request for a 30-day unpaid leave to address complications of her condition. But, the record showed that the employee had exhausted her leave under the employer’s attendance policy and had failed to qualify for the requested leave under the unpaid leave policy. Further, the Court held the employer did not have to accommodate the employee’s unreliable attendance because the employee failed to show that she would have been able to come in to work on a regular basis even if the employer had granted her leave request. The Court agreed with the employee that the employer had failed to engage in the required interactive accommodation process but that failure did not constitute an independent basis for liability under the ADA. Most importantly, the employee was unable to show that she could perform the essential function of her job by regularly coming to work. Thus, the Court affirmed judgment entered for the employer.


Where There Is No Title Vii Basis For A Claim, No Retaliation Claim Lies Under Title Vii

In Kelly v. Howard I. Shapiro & Associates Consulting Engineers, P.C., 2013 WL 1776646 (2nd Cir. 2013), a female former employee failed to allege that her sex, in one way or another, played a substantial role in the hostile work environment about which she complained to her former employer. The female employee, therefore, failed to state a prima facie case for retaliation based on that complaint. The female employee suggested only that she believed her brothers, who were the employer’s vice presidents, were undermining her authority in favor of another female worker with whom one brother was having an affair. The employee alleged only that she believed such misconduct constituted unlawful discrimination. The Court found that nothing about those allegations indicated that there was discrimination against anyone on the basis of sex. Therefore, the employee could not allege retaliation under Title VII because of her complaint.


A Policy Needs To Be Published To Provide A Defense

In Hudson v. United Systems of Arkansas, Inc., 2013 WL 828049 (8th Cir. 2013), the jury entered a verdict against an employer finding that the employer discriminated against a female employee based on her sex, in violation of Title VII. The employer contended that it had given a legitimate, nondiscriminatory reason for the employee’s termination. The employer’s defense was that the employee violated its president’s “cell phone policy” which required all executive employees to telephone the president when calling in sick. But, three executive employees stated they had never even heard of the alleged cell phone policy. Further, the employee produced evidence that the employer’s president belittled women employees all of the time, talked down to them, and called them “girl” or “little girl.” As further evidence in support of the jury’s verdict, the employee produced evidence that the president once told her that she “gave good phone,” which the employee took to be a reference to oral sex.


A College Can Expect Teachers To Teach In A Professional Manner

In Smiley v. Columbia College Chicago, No. 10-3747, April 30, 2013, Seventh Circuit, the employee’s Title VII action alleged that she was terminated from her teacher’s position on account of her race and national origin. The college had investigated a complaint by a student that the teacher had isolated and singled him out for being Jewish. The record showed that the college made the termination decision after interviewing the complaining student and the teacher. During the interview the teacher acknowledged that her teaching style involved goofing around with her students and teasing them. The Court held that the employer could properly conclude that the teacher’s termination was warranted based on the college’s expectation that its instructors would teach classes in a professional manner.

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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