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McKenna Employment Bulletin – October 2015

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  • FALSE WORKER’S COMPENSATION CLAIM STOPS TITLE VII ACTION
  • STATEMENT THAT WOULD NOT HIRE A CAUCASIAN IF A QUALIFIED MINORITY WAS AVAILABLE WAS NOT EVIDENCE OF DISCRIMINATION
  • FALSE TIMESHEETS PREVENT A TITLE VII CLAIM
  • AGE-RELATED STATEMENTS SUPPORT AN ADEA CLAIM
  • SEVERE EMPLOYMENT CONDITIONS SUPPORT AN FMLA CLAIM
  • EMPLOYER’S FAILURE TO STOP RUDE BEHAVIOR DOES NOT CREATE A HOSTILE ENVIRONMENT

 

FALSE WORKER’S COMPENSATION CLAIM STOPS TITLE VII ACTION

In Boutros v. Avis Rent-A-Car System, LLC, No. 14-1511, September 23, 2015, 7th Cir., the Plaintiff alleged that he was terminated on account of his race and nationality. He was terminated after the employer had determined that the Plaintiff had lodged a false claim that he had been injured on the job. In support of the employer’s position, the Court admitted two out-of-Court statements from a co-worker and a representative of a fire extinguisher vendor. The statements conflicted with the Plaintiff’s version of his alleged injury. The person who made the decision to terminate the Plaintiff considered those two statements prior to the termination. The statements were admissible under the state-of-mind exception to the hearsay rule. Further, both statements were relevant on the issue as to whether the employer’s proffered reason for Plaintiff’s termination was for a false reason.
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STATEMENT THAT WOULD NOT HIRE A CAUCASIAN IF A QUALIFIED MINORITY WAS AVAILABLE WAS NOT EVIDENCE OF DISCRIMINATION

In Rahn v. Board of Trustees of Northern Illinois University, No. 14-2402, September 23, 2015, 7th Cir., the Plaintiff alleged that the employer committed an act of reverse discrimination when the employer hired another individual for a tenure-track teaching position. The ultimate decision-maker told the members of the selection committee the he would not hire a white man if a qualified minority candidate were available. Despite this statement, the Plaintiff failed to present any evidence that he was more qualified than the successful candidate, and failed to produce any evidence that the criterion that the selection committee used to select and grade the finalists for the position was generated by the ultimate decision-maker. Further, the statement by the ultimate decision-maker that he would not hire a white man if a qualified minority candidate was available was not direct evidence of discrimination. This was because the selection committee, which did not include the ultimate decision-maker, made the decision not to include the Plaintiff as a finalist for the position.
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FALSE TIMESHEETS PREVENT A TITLE VII CLAIM

In Jones v. Southeastern Pennsylvania Transportation Authority, 2015 WL 4746391 (3rd Cir. 2015), an employer suspended a female employee without pay and terminated her for submitting fraudulent timesheets. The employee claimed her termination was a result of gender discrimination in violation of Title VII. She alleged that one male employee had been permitted to underreport his vacation time to compensate him for unpaid overtime work, in contravention of company rules. However, the male employee did not fraudulently claim pay for work he never performed.
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AGE-RELATED STATEMENTS SUPPORT AN ADEA CLAIM

In France v. Johnson, 2015 WL 4604730 (9th Cir. 2015), the Plaintiff alleged a supervisor stated a preference for promoting younger employees, had repeated retirement discussions with an older employee, and that the supervisor influenced or was involved in the hiring decisions for new positions he had created. The statements of the supervisor supported the ADEA claim even though the supervisor was not the final decision-maker. It was a question of fact whether the stated reasons for preferring the younger employees were false.
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SEVERE EMPLOYMENT CONDITIONS SUPPORT AN FMLA CLAIM

In Cardenas v. First Midwest Bank, 2015 WL 4100293 (N.D.Ill. 2015), a deaf former employee alleged a “convincing mosaic of circumstantial evidence” to support her FMLA retaliation claim against the employer. The employee began taking intermittent FMLA leave. Thereafter, the employer subjected the employee to unfair discipline, cut her hours, and held her to different standards than her co-workers. The employer also denied the employee a full-time position during one period of FMLA leave. Coworkers, whose performance was lower than the employee’s, were promoted while she remained at her position. Further, she was denied interviews for promotions under the false pretense that the positions required phone use.
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EMPLOYER’S FAILURE TO STOP RUDE BEHAVIOR DOES NOT CREATE A HOSTILE ENVIRONMENT

In Baird v. Gotbaum, 2015 WL 4079546 (C.A.D.C. 2015), an African-American alleged that her employer failed to stop rude emails, name calling, lost tempers and unprofessional behavior by co-workers. The Court held that this rude behavior was not severe or pervasive enough to support the employee’s Title VII hostile work environment claim. The Court found that despite the long list of actions, the various critiques and epithets were objectively trivial and would not have persuaded a reasonable employee to refrain from making or supporting charges of discrimination.
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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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