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

-Oliver Wendell Holmes, Jr.

McKenna Employment Bulletin – June 2014

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  • DOCTOR’S STATEMENT IS SUFFICIENT TO DEMONSTRATE DISABILITY
  • EMPLOYMENT CONTRACT STOPS A RETALIATORY DISCHARGE CLAIM
  • SEX HARRASMENT BY THE EMPLOYEE STOPS HIS NATIONAL ORIGIN AND RETALIATION CLAIM
  • EMPLOYER’S USE OF THE SAME CREDIT CHECK AS THE EEOC STOPS AN EEOC COMPLAINT
  • EEOC CHARGE DOES NOT TOLL THE STATUTE OF LIMITATIONS FOR A STATE COMMON LAW CLAIM

 

DOCTOR’S STATEMENT IS SUFFICIENT TO DEMONSTRATE DISABILITY

In Mazeo v. Color Resolutions Intern., 2014 WL 1274070, (11th Cir. 2014), a former employee submitted an affidavit of his physician to demonstrate his disability. The treating physician stated in his affidavit that the employee’s disk herniation problem and resulting pain, which had existed for years and were serious enough to require surgery, substantially and permanently limited the former employee’s ability to walk, bend, sleep and lift more than ten pounds. The affidavit was sufficient to demonstrate that the former employee was disabled at the time of his termination and established a prima facie case of employment discrimination under the Americans with Disabilities Act. The court held that under the new standards and definitions set in place by the ADA Amendments Act the affidavit was enough to demonstrate that the employee was disabled at the time of his termination.
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EMPLOYMENT CONTRACT STOPS A RETALIATORY DISCHARGE CLAIM

In Taylor v. the Board of Education of the City of Chicago, 2014 IL APP (1st) 123744 (May 6, 2014), an assistant principal sued for common law retaliatory discharge and violation of the Illinois Whistleblower Act. The principal claimed he was discharged and subject to ongoing retaliation by The Board of Education for reporting acts of alleged abuse of students by a special education teacher. The jury awarded the principal one million five-hundred dollars. The Illinois Appellate Court reversed and held that the board rules were sufficient to establish employment for a set term: the contract term of the principal. Thus, the board rules showed that the assistant principal’s employment was not at-will. Because the plaintiff was not an at-will employee, the board chose not to renew his contract. The Illinois Appellate Court held that the common law retaliatory discharge tort applies only to at-will employees and not to employees who have a contract which is not renewed. The Appellate Court, however, remanded for damages under the Illinois Whistleblower Act..
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SEX HARRASMENT BY THE EMPLOYEE STOPS HIS NATIONAL ORIGIN AND RETALIATION CLAIM

In Hnin v. TOA (USA) LLC, No. 13-3658, May 5, 2014, (7th Cir.), the plaintiff’s action alleged that the plaintiff was terminated from his assembly line position on account of his national origin in retaliation for the fact that he had previously complained of discrimination. However, the employer had conducted an internal investigation of a charge that the plaintiff had sexually harassed a co-worker and had otherwise acted aggressively against other co-workers. Further, the plaintiff had failed to establish that any other co-worker that had been accused of similar sex-based misconduct was treated more favorably. Also, the court held that the plaintiff’s belief that his misconduct was mere teasing that did not amount to actionable sexual harassment did not require a different result. An employer can discipline employees on misconduct that is not actionable sexual harassment. Further, the plaintiff failed to show that his protest of discrimination that occurred 12 months prior to his termination was causally related to his termination.
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EMPLOYER’S USE OF THE SAME CREDIT CHECK AS THE EEOC STOPS AN EEOC COMPLAINT

In Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation, et al., No. 10-02882, April 9, 2014, 6th Circuit, the EEOC sued the employer Kaplan for using the same type of background check that the EEOC itself uses. The EEOC’s personnel handbook recites that overdue just debts increase temptation to create illegal and unethical acts as a means of getting funds to meet financial obligations. Because of that concern, the EEOC runs credit checks on applicants for 84 of the agencies’ 97 positions. The Kaplan employer had the same concern and thus Kaplan ran credit checks on applicants for positions that provide access to students’ financial loan information, among other positions. For that reason, the EEOC sued Kaplan. The EEOC alleged that Kaplan’s use of credit checks causes it to screen out more African-American applicants than White applicants, creating a disparate impact in violation of Title VI of the Federal Civil Rights Act. Further, the EEOC relied solely on statistical data compiled by a person who holds a doctorate in industrial and organizational psychology. The court, however, found the expert’s testimony was unreliable because: (1) the EEOC presented no evidence that the expert’s methodology satisfied any of the factors that courts typically consider in determining reliability under Federal Rule of Evidence 702, which provides that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the testimony is based on sufficient facts and data and is a product of reliable principles and methods; and (2) the expert himself admitted that his sample was not representative of Kaplan’s applicant pool as a whole. The court also found there was no evidence that the expert’s race-rating methodology is generally accepted in the scientific community. Thus, the court entered judgment for the employer, Kaplan.
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EEOC CHARGE DOES NOT TOLL THE STATUTE OF LIMITATIONS FOR A STATE COMMON LAW CLAIM

In Castagna v. Luceno, 2014 WL 840964 (2nd Cir. 2014), the court held that an EEOC administrative charge does not toll the time for filing state tort claims, including those that arise out of the same nucleus of facts alleged in the charge of discrimination filed with the EEOC. Thus, in Castagna, the one-year limitation for a female former employee’s claims against her employer for intentional infliction of emotional distress, assault, and battery was not tolled by her filing of any EEOC charge claiming that her employer violated Title VII. The employee had one year from the date of the alleged common law claim to file her suit.
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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 Publications



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