Monday, October 24, 2011

Employment Case Law Update

--Bonefont-Igaravidez v Int’l Shipping Corp, 1stCir, October 14, 2011, No. 10-1953:   Court of Appeals for the First Circuit AFFIRMS lower court's grant of summary judgment on plaintiff's Age Discrimination in Employment Act (ADEA) claim.  Plaintiff worked for Defendant-Employer for 57 years and prior to his termination had taken medical leaves and returned to be the butt of jokes about his age and medical conditions, often in the presence of supervisors.  This in turn led to an incident whereby the plaintiff attacked one of his superiors (who was also over the age 60) for teasing him which then led to his termination.  Plaintiff then sued under the ADEA.

Because the plaintiff lacked direct evidence of age discrimination, the McDonnell-Douglas burden-shifting scheme was evoked and the employer conceded that the plaintiff made out a prima facie case of age discrimination but asserted it possessed a legitimate non-discriminatory reason (LNDR) for terminating the plaintiff when he attached his supervisor, which the court held was legitimate and that plaintiff failed to show that this was pretextual despite the fact the plaintiff presented evidence that younger employees engaged in similar behavior but were not terminated (apparently the fights were somehow substantially different though the court does not describe how).   

--Dorvil v Burlington Coat Factory Warehouse Corp, DNJ, October 14, 2011, Case No. 09-5778:  Defendant-Employer's motion for summary judgment DENIED.  Plaintiff is a Haitian immigrant with a thick accent and managed to climb his way all the way up to a management position that oversaw some 170 employees.  Upon receiving a new supervisor, the plaintiff, on a weekly basis, began experiencing teasing and mockery due to his hard-to-understand accent which ultimately made the plaintiff feel as though his ability to supervise was undermined due to the involvement of his subordinates in the teasing.  Over time the plaintiff's relationship with his new supervisor deteriorated and the racially-motivated teasing escalated to name-calling and "hostile gestures."  Plaintiff also offered up other incidents that did not have racial-components but proved to be racially-motivated.  

To his surprise, the plaintiff, despite years of above-average performance and positive annual reviews, found himself placed on an performance improvement plan (PIP) which gave him a month to improve work performance or be terminated.  Plaintiff was terminated.  Using the plaintiff's previous decade of satisfactory work, the racially-motivated teasing and comments and the fact plaintiff was replaced with a white woman, the court found that plaintiff made out a prima facie case for race discrimination.  Defendant-employer showed a LNDR through plaintiff's flunking his PIP, which plaintiff was able to show was pretext because it was reasonable to believe plaintiff was placed on the PIP because of his race due to a lack of performance issues in the decade prior to his termination.  This all created issues of triable fact for the plaintiff.  

--Been v New Mexico Dept of Info Tech, DNM, September 30, 2011, Case No. 6:09-cv-00726 MV/WDS:  In a case of super-specific facts, Plaintiff, after being terminated while tending to pregnancy-related problems, filled several claims against her former employer, including, inter alia,  FMLA interference, pregnancy and sex discrimination which then led to a plethora of dispositive motions by both parties.  

Regarding plaintiff's pregnancy/sex discrimination claim, the court held that plaintiff made out a prima facie case for pregnancy discrimination and that the employer's LNDR was pretextual given the employee's clear attempts to keep the employer abreast of her work absences attributed to her pregnancy's complications which created triable issues of fact for a jury.  Regarding plaintiff's FMLA interference and retaliation claims, the court held  that plaintiff's FMLA interference claim could proceed because a jury could reasonably conclude that plaintiff's FMLA rights were interfered with as she was fired while on leave and it is disputed whether plaintiff did follow the employer's leave policies.  Likewise, the court found that a jury could reasonably conclude that plaintiff's was retaliated against for asserting FMLA rights as the defendant took too narrow a view of when an employer is placed on notice of an employee's request for FMLA and re-highlighted the fact that an employer’s duties under the FMLA are triggered so long as “the employer is on notice that the employee might qualify for FMLA benefits.”  Once again, because it was clear prior to her termination that she was off for pregnancy-related issues and because plaintiff was terminated while on leave, defendant's motion for summary judgment on the retaliation claim was denied also.

--Beem v Providence Health & Srvs, EDWa, October 13, 2011, Case No. CV-10-0037-JLQ:  Defendant-employer's motion for summary judgment on plaintiff's disability discrimination claim DENIED but on plaintiff's FMLA claim GRANTED.  A habitually tardy employee’s claim that the employer violated the ADA when it refused accommodations for her tardiness survived summary judgment, ruled a district court in Washington, where fact issues remained on whether the employer met its continuing obligation to engage in the interactive process with the employee.  The employee’s FMLA claim was dismissed, however, because not only was there no legal basis for using intermittent leave to cover tardiness, but the employee failed to submit an application for FMLA leave with respect to her tardiness.

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