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

-Oliver Wendell Holmes, Jr.

McKenna Employment Bulletin – March 2015

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  • AGE-RELATED COMMENTS SHOW PRETEXT AND RETALIATION
  • RELEASE OF CLAIMS DOES NOT VIOLATE TITLE VII
  • BE SPEEDY IN YOUR TERMINATIONS IF POSSIBLE
  • POOR WORK PERFORMANCE PREVENTS NATIONAL ORIGIN DISCRIMINATION CLAIM
  • EMPLOYEE’S NONPERFORMANCE AND INTIMIDATION STOP DISABILITY CLAIM
  • ADHD MAY NOT BE A DISABILITY UNDER THE ADA

AGE-RELATED COMMENTS SHOW PRETEXT AND RETALIATION

In Soto-Feliciano v. Villa Cofresi Hotels, Inc., 2015 U.S. App. LEXIS 2631 (1st Cir. Feb. 20, 2015), an employee made a sufficient showing that the employer’s claimed nondiscriminatory reason for firing him—insubordination and threats to co-workers—was pretextual for age discrimination, as evidenced by the fact he was suspended two weeks after his superiors told him he was “too old to do his job,” and inconsistencies in defendants’ claims of his misconduct. He also made a prima facie showing of retaliatory motive with evidence that after he filed his complaint with the Puerto Rico Department of Labor, a manager who had asked him why he had visited the Department co-signed his suspension letter two days later.
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RELEASE OF CLAIMS DOES NOT VIOLATE TITLE VII

In EEOC v. Allstate Ins. Co., 2015 U.S. App. LEXIS 2330, 1 (3d Cir. Pa. Feb. 13, 2015), the U.S. Court of Appeals held that the EEOC failed to establish that a release of claims required by Allstate in order for agents who were terminated from at-will employment to continue to work as independent contractors was invalid. The EEOC did not articulate any good reason why an employer could not require a release of discrimination claims by a terminated employee in exchange for a new business relationship with the employer. The EEOC did not show that the company violated Title VII of the Civil Rights Act of 1964, the ADEA, the ADA or retaliated against agents who refused to sign the release. Refusing to sign a release did not constitute protected activity and the company’s refusal to allow agents who did not sign to convert to independent contractor status was not an adverse employment action.
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BE SPEEDY IN YOUR TERMINATIONS IF POSSIBLE

In Ledbetter v. Good Samaritan Ministries, No. 14-2822 (February 6, 2015), 7th Circuit, the employee filed a Title VII action alleging that the employer terminated the plaintiff for alleged intimidation of co-workers and residents of a homeless shelter but, in reality, in retaliation for having filed a second EEOC charge of discrimination against the employer. The employer asserted that the decision to terminate the employee was made five days prior to the employer receiving notice of the EEOC charge. However, the record showed that the employee was terminated one day after the supervisor had become aware of the EEOC charge. The defendant produced no documentation that the termination decision was made at an earlier time. Further, the employer offered no evidence to explain why it waited six days to actually terminate the employee if in fact the termination decision had already occurred six days earlier.
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POOR WORK PERFORMANCE PREVENTS NATIONAL ORIGIN DISCRIMINATION CLAIM

In Sklyarsky v. Means-Kraus Partners, L.P., No. 13-3302 (January 29, 2015), 7th Circuit, the employee filed a Title VII action alleging that the employer terminated the employee from his janitor position on account of his national origin. However, the record showed that the employee was involved in several workplace violations prior to his termination. The employee, on his own behalf, insisted that he performed his job satisfactorily. However, the employee failed to dispute the fact that he received five reprimands that included two suspensions in less than three years. The Court found that the employee failed to establish he was meeting his employer’s legitimate employment expectations. The Court ruled this was fatal to the employee’s discrimination claim in the absence of evidence of similarly-situated comparatives being treated more favorably. Finally, the employee could not establish his retaliation claim based only on a 6-month gap between his complaint of discrimination and his termination. Judgment was entered for the employer.
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EMPLOYEE’S NONPERFORMANCE AND INTIMIDATION STOP DISABILITY CLAIM

In Curley v. City of North Las Vegas, 2014 WL 6765744 (9th Circuit 2014), the employee alleged he was fired because of his disability. The facts were that the employer terminated the employee because of the employee’s nonperformance of duties, intimidation of co-workers, conducting and soliciting personal business on work time, and making disparaging remarks about the employee’s supervisors. The Court found that these non-discriminatory reasons for the employee’s termination, were not a pretext for disability discrimination. While the physician who conducted a fit-for-duty evaluation of the employee determined that the employee was not a danger to himself or others, the Court found that the employer fired the employee because of past threats and intimidation, not the danger of future violence.
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ADHD MAY NOT BE A DISABILITY UNDER THE ADA

In Weaving v. City of Hillsboro, 2014 WL 3973411 (9th Circuit 2014), the employee claimed that his ADHD condition qualified as a “disability” under the ADA. However, the employee made no showing that his ADHD affected his ability to work because the employee was knowledgeable and technically competent in performing his job duties. Further, although the employee experienced interpersonal problems in getting along with his peers and subordinates at work, he had little difficulty interacting with his supervisors, and he was able to engage in normal social interactions. Thus, the Court in Weaving held that the employee’s diagnosis of attention deficit hyperactivity disorder (ADHD) did not substantially limit the employee’s major life activities of working or interacting with others and, therefore, did not qualify as a “disability” under the ADA.
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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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