Monday, August 22, 2011

Employment Case Law Update

--McKenna v City of Philadelphia, 3rdCir, No. 09-3567: The Third Circuit applied the "cat's paw theory" of discrimination in addressing whether a supervisor's alleged discriminatory animus served as a causal connection between the plaintiff's termination and an independent tribunal's decision to terminate. The defendant argued that the plaintiff's supervisor's discriminatory animus played no role in the independent review tribunal's decision while the plaintiff maintained it was the supervisor's discriminatory intent that led to the need for review in the first place, therefore, serving as a causal connection. The 3rd Circuit concluded, "In the words of Staub, a reasonable jury could conclude that Colarulo‟s animus bore a direct and substantial relation to Carnation‟s termination and that the PBI‟s recommendation was not independent and was foreseeable. See Staub, 131 S. Ct. at 1192-93. See also Sosa, 542 U.S. at 703."
The 3rd Circuit also found that even though Staub was decided after the jury returned a verdict in favor of the plaintiff that they were properly instructed per Staub on proximate cause, thus finding no need to remand the case back to district court and AFFIRMED the district court's decision.

--EEOC v Dresser-Rand Co, WDNY, 04-CV-6300 CJS: Defendant's motion for partial-summary judgment DENIED, plaintiff's cross-motion to preclude testimony of defendant's expert witness GRANTED. The Court held that employees have no obligation to go to school after they are unlawfully discharged in order to mitigate their damages. The court ruled that, although employees who are fired for discriminatory reasons must seek other employment, they are under no obligation to go to school for retraining. In fact, a terminated employee who pursues an education rather than seeking a job fails to mitigate his damages, the court noted.

In this case, the plaintiff sought and found other employment after he was discharged by the defendant, thus, he fulfilled his duty to mitigate; the fact that he did not go to school was irrelevant, which in turn allowed the exclusion of defendant's expert which found had the plaintiff sought specific educational training he would have more successfully mitigated his damages.

--Miller v Whirlpool Corp, NDOhio, Case No. 3:10CV00473: Both plaintiff and defendant's motions for partial summary judgment DENIED. This case highlights why medical questionnaires may be a bad idea in certain employment situations. Defendant terminated plaintiff after repeated refusals by the plaintiff to fill out a medical questionnaire. Under the Americans with Disabilities Act (ADA) a medical examination shall not be required and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. Furthermore, for purposes of contesting an improper medical inquiry, a claimant need not prove they have a disability, which is what allowed this plaintiff to file suit. Neither party here contested that the questionnaire in this case constituted a test that would reveal a disability constituting a protected disability-related inquiry leaving a remaining question of whether it falls within the ADA's exception of being “job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A).

The burden of showing job-related and consistent with business necessity is placed on the employer and carries a high bar. Because facts were presented to bring into question whether the defendant can meet their burden and whether it violates the ADA's disclosure provision, the Court held summary judgment inappropriate and also did not buy the defendant's proffered defenses for the questionnaire. Specifically, the employer presented two defenses: 1) that the questionnaire was given uniformly to both disabled and nondisabled employees; and 2) hat its disability-related inquiry was lawful because it was required under OSHA’s general duty clause.

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