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

-Oliver Wendell Holmes, Jr.

McKenna Employment Bulletin – May 2014

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  • FAILURE TO FOLLOW WORK RULES FOR ALL EMPLOYEES ENDS IN AN ADEA CLAIM
  • A FAILURE TO PROMOTE CLAIM FAILS WHILE A TERMINATION CLAIM REMAINS
  • A WORK RELATED REASON FOR TERMINATION STOPS A RETALIATION CLAIM
  • INABILITY TO SIT FOR LONG PERIODS MAY BE A DISABILITY
  • YOUR ESSENTIAL JOB ELEMENTS ARE THE MEASURE FOR DISABILITY
  • THE DECISION TO TERMINATE PRIOR TO AN EEOC CHARGE STOPS A RETALIATION CLAIM

 

FAILURE TO FOLLOW WORK RULES FOR ALL EMPLOYEES ENDS IN AN ADEA CLAIM

In Baker v. Macon Resources, Inc., No. 13-3324, April 25, 2014, (7th Cir.), the plaintiff filed an age discrimination action alleging that her employer terminated her for workplace misconduct on account of her age. The Court held there was an issue of fact as to the motive for the plaintiff’s termination. This was because the employer said the plaintiff was terminated for failure to timely report abuse of disabled residents by a co-worker. But, a younger co-worker received lesser punishment when she was accused of failing to report her suspicion that the same co-worker had sexually abused a disabled resident. The employer claimed that the plaintiff received a more severe punishment because she had actually witnessed said abuse, while the younger co-worker only held a suspicion that sexual abuse of a disabled resident had occurred. However, the employer’s workplace rules required that its employees make reports under each circumstance. Moreover, the employer failed to explain why the employer had failed to investigate plaintiff’s supervisors for committing a similar infraction.
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A FAILURE TO PROMOTE CLAIM FAILS WHILE A TERMINATION CLAIM REMAINS

In Gosey v. Aurora Medical Center, No. 13-3385, April 11, 2014, (7th Cir.), judgment was entered for the employer on the plaintiff’s Title VII claim alleging that the employer harassed and failed to promote the plaintiff on account of her race. This was because the plaintiff presented no direct evidence of race discrimination in her failure to promote. The record showed that the successful candidate was clearly more qualified than the plaintiff. Further, the plaintiff failed to present any evidence that linked the employer’s assignment of unfavorable job tasks to the plaintiff’s race.

However, the plaintiff did state a valid claim for termination based on race. This was because the defendant’s time records did not support its claim that the plaintiff was terminated because she was tardy on at least four occasions.
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A WORK RELATED REASON FOR TERMINATION STOPS A RETALIATION CLAIM

In Reid v. Neighborhood Assistance Corporation of America, No. 13-1768, April 1, 2014, (7th Cir.), the plaintiffs alleged that the employer terminated them in retaliation for having complained about the employer’s failure to pay them Illinois minimum wage and for failing to abide by state and federal laws with respect to handling mortgage applications. However, even though the plaintiffs showed they were terminated shortly after having made their complaints, the plaintiffs failed to present evidence that cast doubt on the defendant’s explanation for their termination. The employer claimed that the plaintiffs were terminated for violations of the employer’s paperless policy, as well as other infractions that included perception of poor customer service and possession of alcohol in one of the plaintiffs’ offices. Further, certain co-workers who had made similar complaints had not been terminated.
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INABILITY TO SIT FOR LONG PERIODS MAY BE A DISABILITY

In Parada v. Banco Industrial De Venezuela, CA, 2014 WL 1202959 (2nd Dist. 2014), the employee stated she was disabled as required for a claim under the ADA. Her allegations were that she could sit for only 10 to 15 minutes and then she had to stand up. The Court held that if a plaintiff offered evidence that she cannot sit for a prolonged period of time, she may well be disabled under the ADA. This depends on her specific factual circumstances.
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YOUR ESSENTIAL JOB ELEMENTS ARE THE MEASURE FOR DISABILITY

In Samson v. Federal Exp. Corp., 2014 WL 1226847 (11th Cir. 2014), an applicant claimed that he was denied a mechanic position in violation of the ADA because he was an insulin dependent diabetic. The Court held there was an issue of material fact as to whether test-driving trucks was an essential function of the mechanic position. Under the Federal Motor Carrier Safety Regulations, an insulin-dependent diabetic is disqualified from being medically certified as physically qualified to operate a commercial motor vehicle in interstate commerce. Thus, the Court had to decide whether or not test-driving trucks was an essential function of the mechanic position.
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THE DECISION TO TERMINATE PRIOR TO AN EEOC CHARGE STOPS A RETALIATION CLAIM

In Lors v. Dean, 2014 WL 960986 (8th Cir. 2014), an employee failed to show direct evidence causally linking his termination to the filing of his handicap discrimination claim. The causal connection is required to state a prima facie case of retaliation under the ADA. The employee had been terminated after he filed his discrimination claim and during the pendency of his appeal from the dismissal of that claim. But, his termination occurred more than six months after he filed the discrimination claim. Further, the supervisor who expressed an interest in taking action against the employee was not a decision maker who determined whether he would be terminated. Additionally, e-mails between the employee’s team leader and supervisors discussing the plaintiff included e-mails sent before the plaintiff filed his discrimination claim. Finally, a letter stating the reasons for the employee’s termination did not show any specific link between his termination and his discrimination claim.
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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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