Retaliation

Employer Not Required to Offer Telecommuting Accommodation to Employee Who Could Not Perform Job’s Essential Functions

September 9, 2015 | Parks, Chesin & Walbert

A recent decision from the Sixth Circuit Court of Appeals addressed a very important topic within the realm of disability discrimination law: specifically, when is telecommuting a reasonable accommodation for an employee with a disability? In the case of one Ford Motor Co. employee, the Sixth Circuit concluded that the employer’s refusal to allow an employee to telecommute four days per week was not the denial of a reasonable accommodation, but a case of an employee unable to perform the essential functions of her job.

The employee, Jane Harris, was a resale buyer with Ford who had irritable bowel syndrome. Harris’ job performance steadily declined during her time with Ford, in part due to her condition. Ford had occasionally approved telecommuting for Harris, but, even with the accommodation, the employee’s performance continued to worsen.

Eleventh Circuit Affirms Georgia Truck Driver’s Termination Did Not Violate ADA, FMLA

February 11, 2015 | Parks, Chesin & Walbert

A trucking company that fired a truck driver who had been diagnosed with alcohol dependency did not violate the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA), according to a recent Eleventh Circuit ruling.

The plaintiff in the case was employed in Georgia by the defendant, a trucking company, as an over-the-road driver. In 2010, the plaintiff requested and was granted an FMLA leave of absence to care for a “serious health problem” after talking with his personal physician about his alcohol issues. Upon completion of a 30-day program at an inpatient substance abuse facility, the plaintiff’s physician certified that he was fit to return to work. A week after his discharge from the treatment program, the plaintiff was fired. The reason given was that his clinical diagnosis of chronic “alcohol dependence” made him unfit for his job according to company policy and DOT regulations.

The plaintiff sued his former employer for wrongful termination under the ADA and interference and retaliation under the FMLA. The U.S. District Court for the Northern District of Georgia granted summary judgment on behalf of the defendant. The plaintiff appealed to the Eleventh Circuit.

Georgia Whistleblower Plaintiffs Must Receive Definitive Decision of Termination to Trigger Statute of Limitations

January 21, 2015 | Parks, Chesin & Walbert

The statute of limitations for a Georgia whistleblower action does not accrue until the employee receives a definitive or final determination about the alleged retaliatory action, the Court of Appeals of Georgia held late last year. This ruling helps public employees who have been wrongfully terminated by their employers prove their cases under the Georgia Whistleblower Statute.

The plaintiff in the case was the police chief for a public institution in the University of Georgia system. The school fired the plaintiff in late 2009 after several contentious issues that began in October 2008. One of these was school staff interfering in a criminal investigation that the plaintiff thought was in violation of Georgia law. In June 2009, school administrators asked the plaintiff to resign from his post once he found a new job or face immediate termination. He initially agreed to resign but later changed his mind. On November 19th 2009, the school delivered a letter of termination to the plaintiff. The plaintiff filed suit under the Georgia Whistleblower Statute for wrongful termination on November 10, 2010.

The defendant filed a motion for summary judgment contending, in part, that the the statute of limitations barred suit. It was granted by the trial court, but the Court of Appeals reversed.

Privacy, Prying, and Productivity: Balancing Online Access at Work

November 26, 2014 | Parks, Chesin & Walbert

Just a couple of decades ago, some of the biggest unsanctioned communications “perks” an employee might covet would be making a long-distance call on the company dime or using the fax for personal business when no one was looking. Then came the chain emails and funny cat videos one could sneak in between doing actual work. Now, however, an array of social media sites being constantly updated tethers many workers to information and entertainment streams that have nothing to do with their jobs and everything to do with wasting time.

Abstractly, time spent mindlessly browsing Facebook or Twitter while on the clock is time being stolen from the company. To combat the problem, it used to be that businesses could simply add a few firewalls and restrict access to certain sites. As smartphone ownership with high-speed data has become more of the norm, however, there’s less that can be done to stop employees from simply shifting their Internet play time off the company servers and into their palms. But is the time spent goofing off online really any different from time that was once wasted at the water cooler, or have workers merely taken inherent down time to its natural technological extension?

Whose Business is it? Some Workplace Boundaries

November 12, 2014 | Parks, Chesin & Walbert

As a kid, everyone seems to have that one friend whose parents are infinitely more permissive than their own. They get to stay up late, eat junk food, and come and go at their leisure. For the envious rest of us, childhood was just a matter of biding time until we were all grown up and could do what we pleased without anyone telling us what to do. All those years of waiting for the freedom we’d only dreamed about seemed poised to bathe us in unrestricted joy…

Then came our jobs. Actual responsibilities and obligations became our new burdens, at least as long as we wanted the income to support our fabulous visions of freedom. Bosses and clients and our direct reports and customers and partners: everyone’s demands whittle away at the dream of complete autonomy. Before you realize it, you’d love it if someone would make you go to bed by 10 on a weeknight, but then who’d get to all those backlogged reports?

An Employee’s Right to a Safe Work Environment

October 15, 2014 | Parks, Chesin & Walbert

With all the misplaced fears and manufactured hysteria about the first Ebola case diagnosed in the US, it is not hard to assume most people are happy they are not health care workers in that Dallas hospital. Unfortunately, it looks like at least one of the nurses caring for the initial victim is testing positive for the disease, and dozens more workers who had direct and indirect contact with the infected individual are being quarantined and monitored for the next couple of weeks. The chance of contracting a virus that is killing more than half of its victims in Western Africa is a high price for anyone to pay for choosing a career in medicine, but that is the risk they assumed when they took the job, right? Not exactly.

While health care workers are used to dealing with all kinds of sicknesses and gore, some things simply fall outside the norm. Expecting emergency room nurses or doctors to be well-versed in caring for highly unusual maladies, such as heavy radiation exposure, exotic poisons and toxins, or pandemic-level diseases previously confined to other continents is unreasonable, if not impossible. Thus, it was not surprising to see the head of the nation’s largest nurses’ union blast the Centers for Disease Control for appearing to blame the now-infected nurse’s own breach of safety protocol for her exposure to the Ebola virus.

Federal Court in Tennessee Permits FLSA Retaliation Case to Proceed

July 7, 2014 | Parks, Chesin & Walbert

A federal court in Tennessee recently rejected an employer’s attempts to have a retaliation case dismissed. In Sanders v. Whites Creek Healthcare, LLC, Lesia Sanders had filed a retaliation case under the Fair Labor Standards Act (FLSA), claiming that she was terminated from her position after reporting her employer’s illegal labor practices.

Sanders allegedly observed that a member of Human Resources was altering the employees’ time sheets and failing to pay hourly employees proper wages for work they performed off the clock. On “numerous” occasions, she allegedly informed her immediate supervisor that certain employees were not being properly compensated, and she also attempted to inform her District Manager, only to be ignored. Following her report, Sanders was placed on a performance improvement plan, followed by suspension and then termination. Sanders’s termination letter reportedly stated that her sole reason for termination was that she was aware a member of Human Resources was violating federal law and the employer’s policies yet “continued to condone” Human Resources’ practice.

Sanders filed a lawsuit in federal district court, and Whites Creek Healthcare filed a motion for summary judgment to have it dismissed. The federal court looked at whether, as Whites Creek Healthcare claimed, there was no genuine issue of material fact, and Whites Creek Healthcare was therefore entitled to judgment as a matter of law.

Federal Court in Tennessee Denies Summary Judgment in Case Where Employee Retaliated Against For Reporting Illegal Activity

June 11, 2014 | Parks, Chesin & Walbert

A federal court in Tennessee recently denied a motion for summary judgment against an employee claiming that he was retaliated against by his employer after reporting illegal activity.

In Walls v. Tennessee CVS Pharmacy, LLC, Michael Walls worked for CVS from 1998 to 2011, mainly as a store manager. As part of his position, Walls was responsible for the entire store, although each pharmacy fell under its pharmacist’s responsibility. In 2007, Walls became the manager for the Madison CVS store, where he observed that the pharmacist, Dr. Warner, suffered from a loss of cognition. Walls reported the problem, but nothing was done to correct it. Eight months later, Walls raised the issue again at a meeting of district managers. One week after that, he was transferred to a different CVS store in Nashville.

Soon after Walls began work at that store, he and a pharmacist discovered that more than 20,000 prescription medicines in the pharmacy were past the expiration date printed on the bottle, some as many as four years. Since many of those bottles were just partially full, Walls became concerned that the pharmacy had been dispensing medicines to customers that were past their expiration date. This included HIV medications, anti-rejection drugs, children’s medication, and pain medication. Since it was against CVS policy to have out-of-date medication, Walls reported the problem to his superiors at the company, including the District Manager and supervising pharmacist. His superiors never showed any indication that they were investigating his concerns.

Federal Court in Tennessee Denies Summary Judgment Motion in Retaliation Case

April 18, 2014 | Parks, Chesin & Walbert

Another sexual harassment retaliation case was decided recently, this one in Tennessee federal court. In Lawson v. White, Ms. Lawson charged her director with retaliation under Title VII of the Civil Rights Act of 1964 and the Tennessee Human Rights Act after she reported being sexually harassed by another employee. The federal district court denied Lawson’s employer’s motion for summary judgment, allowing the case to move forward.

Lawson began working for Monroe County’s EMS as a paramedic in January 2006 under former director Mr. Smith. In August 2009, Lawson was allegedly harassed by a coworker. After Lawson reported the harassment to Smith, Smith terminated the coworker’s employment. During this time, defendant Randy White was employed with a privately owned ambulance service called iCare EMS. While there, White hired and worked alongside Lawson’s former coworker. Then in August 2010, Monroe County’s new mayor appointed White to serve as the new EMS director. As part of the transition of a new administration, various County employees were required to submit resumes and applications to be considered for continued employment. Roughly 50 or 60 former EMS employees did so, including Lawson.

White reviewed these employees’ resumes and conducted interviews, then based his hiring decisions on them, as well as his prior experience working with some of the applicants. In the end, three employees were terminated, including Lawson. White then rehired Lawson’s former coworker to fill an EMS position. Continue reading ›

Federal Court in Georgia Denies Summary Judgment in Part, Permits Retaliation Lawsuit to Move Forward

April 11, 2014 | Parks, Chesin & Walbert

Recently, a federal court in Georgia granted in part and denied in part an employer’s motion for summary judgment, allowing a sexual harassment lawsuit to move forward.

In Bosco v. Lincare, Inc., Ms. Bosco filed a complaint alleging unlawful sexual discrimination and harassment in violation of Title VII of the Civil Rights Act of 1964. Bosco claimed that in 2009, her supervisor grabbed her rear and attempted to kiss her, before she rebuffed him. Later that night, her supervisor allegedly sent her a text message asking Bosco to come to his hotel room. After Bosco refused, she claimed that her supervisor instigated a series of acts intended to punish Bosco and to undermine her authority over her subordinates. Bosco then reported her supervisor’s actions to Lincare’s Human Resources Department in early 2010, providing copies of her phone records documenting the text.

Although she was informed that the incident would be investigated, no action was taken toward her supervisor, and his allegedly retaliatory behavior increased. After Bosco failed to meet her 60-day goals, her employment was terminated in July 2010. Bosco then filed for discrimination with the Equal Employment Opportunity Commission (EEOC) before finally filing a lawsuit after receiving her right to sue letter. Continue reading ›