McKenna Employment Bulletin – September 2012
Employee Must Negotiate Reasonable Accommodations In Good Faith Under Ada
In Romanello v. Intesa Sanpaolo S.P.A., 97 A.D.3d 449, --- N.Y.S.2d ----, 2012 WL 2891113 (N.Y.A.D. 1 Dept.,2012), the court determined that an employer made the requisite good-faith attempt to open an interactive process with a disabled employee for purpose of reaching mutually acceptable accommodation. But the employee, in spurning that good-faith attempt, in advance and through counsel, by making demand for indefinite leave that was coupled with a threat of litigation, discharged the employer of its obligation to continue its efforts to initiate such process. The court held that this precluded the employee's employment discrimination claims under state and local disability laws.
No Whistleblower Retaliation Where Employee’S Statements Did Not Amount To Threats Of Whistleblowing
In McBride v. Peak Wellness Center, Inc., --- F.3d ----, 2012 WL 3156325 (10th Cir. Wyo. 2012), a terminated plaintiff could not make out a claim for termination in violation of the Whistleblower provisions of the False Claims Act (FCA). The only evidence was one email regarding the employee, wherein the company’s information technology director told management that, based on conversations she had with others, that it “appears [the plaintiff] is preparing a presentation for the auditors on how terrible [the company] is....,” and “[the plaintiff] was checking [company] Policies to see where [it was] out of compliance.” The Court determined that the email was insufficient to put the company on notice that the plaintiff might pursue a Whistleblower complaint because the statements did not amount to an accusation of illegal, let alone fraudulent, conduct, because communicating with auditors was part of the plaintiff’s job, and the company’s auditor was a private entity, not a government entity, which undercut the inference that the company could have believed the plaintiff was going to report alleged improprieties to the government.
