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McKenna Employment Bulletin – May 2013


No Retaliation For Alleged Harassment Which Is Not Based On A Protected Classification

In Northington v. H & M International, No. 12-1233, March 21, 2013, Seventh Circuit, the Court ruled the employer was not guilty of retaliation. The plaintiff had alleged that she was terminated in retaliation for making a prior complaint that co-workers had harassed her. However, the plaintiff did not state at the time of her complaint that the harassment was based on any classification protected under Title VII. Further, the record otherwise established that motivation for the harassment was based only on a personal conflict between the employee and her co-workers. Therefore, the plaintiff failed to show that she had engaged in protected activity to support a retaliation claim.

Employee’S Harassment Of A Co-Employee Defeats Employee’S Retaliation Claim

In Vaugh v. Vilsack, No. 11-3673, March 8, 2013, Seventh Circuit, the employee alleged that the employer changed the plaintiff’s work schedule and denied him overtime opportunities in retaliation for the employee’s filing of discrimination claims that were ultimately settled. The employer explained that changes in the employee’s work schedule and denial of overtime were necessary to comply with the employer’s settlement of a sexual harassment claim made by a co-worker who accused the employee of misconduct. While the employee’s work schedule was changed shortly after the employee settled his own claims against the employer, the employee failed to show that he was meeting his legitimate employment expectations. This was because the employer had an honest belief that the employee had been harassing a co-worker that led to the changes in the employee’s schedule.

Religious Discrimination Claim Requires Facts Showing Religious Discrimination

In Robinson v. The Village of Oak Park, 2013 IL App (1st) 121220 (April 16, 2013), the plaintiff, a Jehovah’s Witness, filed a claim of religious discrimination against her municipal employer. However, the plaintiff offered no evidence to support her alleged inference that the employer’s actions were taken because she did not hold or follow the religious beliefs of her supervisors. Further, the employer set forth legitimate business reasons for its actions. It acted in compliance with the seniority rights of all employees under its union contract. Further, the evidence showed that the plaintiff affirmatively rejected the reasonable accommodation which the employer provided and that resulted in the employee’s layoff. Therefore, the Illinois Appellate Court affirmed judgment entered for the employer.

Another Employee Performing The Essential Functions Of A Job Is Not A Reasonable Accommodation

In Majors v. General Electric Co., No. 12-2893, April 16, 2013, Seventh Circuit, the plaintiff in an ADA action alleged that the employer denied the plaintiff – employee a temporary position on account of her shoulder condition that precluded the plaintiff from lifting objects weighing more than 20 pounds. The plaintiff, thus, failed to establish that she could perform the essential functions of the temporary position which did require lifting of objects weighing more than twenty pounds. The plaintiff’s only proposed accommodation, to have someone else perform the lifting duties, was unreasonable. Even though the employer rejected the plaintiff’s proposal without offering a counter-proposal, this did not require a different result. The plaintiff further failed to present sufficient evidence to establish a retaliation claim based on the employer’s failure to award her overtime after filing her EEOC charge. This was because the plaintiff’s alleged comparable co-workers who received more overtime, held positions with different job classifications.

Plaintiff’S Rude Actions Defeat A Claim Of National Origin Discrimination

In Rapold v. Baxter International Inc., No. 11-2715, January 30, 2013, Seventh Circuit, the jury entered a verdict in favor of the employer in a Title VII action alleging that the employer withdrew its employment offer to the plaintiff on account of his national origin. At trial, co- workers had testified as to several incidents in which the plaintiff acted in a rude and abusive manner that formed the basis for the adverse act of withdrawing the employment offer. The plaintiff’s denials were not persuasive to the jury and the jury was not required to believe the plaintiff’s denials with respect to the accusations of rudeness and abusive manner.

Ada Amendments Allow The Fmla To Apply To Adult Children

The Americans with Disability Act Amendments Act (ADAAA) in 2008 created a wider definition of disability. The ADAAA impacts FMLA leave eligibility when it involves children with disabilities who are 18 years of age or older. A federal DOL interpretation gives the criteria for determining when the FMLA leave applies. The DOL interpretation states that eligibility to take leave to care for an adult child is limited to sons or daughters who are 18 years or older and incapable of self-care because of a mental or physical disability. There is a four-factor test to determine eligibility: (1) Does the adult child have a disability defined by the ADAAA; (2) Is the adult child incapable of self-care due to that disability; (3) Does the adult child have a serious health condition; and (4) Is the adult child in need of care due to the serious health condition.

All four factors must be established for an employee to be eligible for FMLA-protected leave to care for an adult child.

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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