Plaintiff who was fired for failing to attend work prior to a doctor’s appointment did not have a claim under the Family Medical Leave Act, even though her employer knew she might qualify for FMLA leave.
Several days after an employee for the state of Arkansas was in a car accident, she informed her employer that she would have to take time off work the next day to see her doctor. The employee had recently transferred to a new department, and neither she nor her employer knew whether she had any time left in her paid leave bank. Therefore, she agreed with her supervisor that she would attend work the next morning and take an early lunch to go to her doctor’s appointment. In anticipation of the appointment, the plaintiff’s supervisor gave her some FMLA paperwork for her doctor, in case the plaintiff qualified for leave.
The next morning, the plaintiff ended up skipping work because her car wouldn’t start, and later went to her doctor’s appointment where he filled out the paperwork authorizing time off work for physical therapy. When the plaintiff later went to work to drop off her FMLA leave request, she was fired for skipping work and also because she had been reprimanded twice in her first week for policy violations.
The court found that even though the defendant was fully aware that the plaintiff might be eligible for FMLA leave, and that her visit to her doctor would determine that fact for certain, it did not interfere with her rights when it terminated her immediately upon her return from the appointment. The evidence showed that the employer did not fire the worker because she was attempting to take FMLA leave or because she was asserting her right to leave. Instead, it fired her for failing to come into work when her car wouldn’t start. Combined with the other two reprimands she had received during that week – her first in the new department – the employer legitimately determined that the employee should be fired for committing too many policy violations.
This case is interesting because it shows that even when an employer is aware that an employee may be eligible for FMLA leave, or when it is aware that an employee is requesting leave, it is still lawful to discipline or terminate the worker for reasons unrelated to the leave.
-- Marc Jacobs, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Phillips v. Mathews, 547 F.3d 905 (8th Cir. 2008)].
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Employer not required to override legitimate collective bargaining agreement when trying to accommodate disabled employee.
A bus driver for the City of Madison, Wisconsin took disability leave because of a number of health conditions, including diabetes and migraine headaches. When she finally returned to work after two years, her doctor barred her from working as a bus driver and so her employer began looking for an alternative job. Unfortunately, the plaintiff’s seniority level and job classification range only qualified her to work as a bus driver. The City refused to put her into a job that would have “bumped” another employee because doing so would have violated the collective bargaining agreement between the City and the plaintiff’s union. After determining that it did not have a job for the plaintiff, the City terminated her pursuant to the collective bargaining agreement’s disability leave policy, and she sued for violation of the Americans With Disabilities Act.
The court held that the employer did not violate the law when it terminated the plaintiff. Although reassignment to another position may be a reasonable accommodation in some situations, employers do not have to violate their own legitimate, non-discriminatory employment policies to do so. A collective bargaining agreement is such a policy, and the employer was within its right to insist that its seniority and disability leave provisions be followed. Indeed, it may have been liable for labor violations if it had allowed the plaintiff to trump the agreement and bump someone out of a job.
This case explains an important limitation to an employee’s rights under the ADA. Although employers must try to find a reasonable accommodation that will allow a disabled employee to continue working, they are not required to overlook their legitimate, non-discriminatory policies to do so.
-- Marc Jacobs, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see King v. Madison, -- F.3d --, 2008 WL 5085387 (7th Cir. December 4, 2008)].
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Assistant manager’s termination for policy violation did not demonstrate discrimination even though he had an excellent work record prior to being fired.
A White pharmacy technician and assistant manager at Walgreens could not make a case for reverse discrimination after he was fired for violating several company policies, a federal court in Illinois recently ruled. Walgreens has a number of policies designed to protect the integrity and security of its pharmacies. For example, no one may enter the pharmacy area unless a pharmacist is present, and if a substitute or “floater” pharmacist is to enter the pharmacy, a manager or assistant manager must follow specific procedures to give the pharmacist access via the pharmacy’s emergency key. This emergency key is not to be used for any other purpose.
In this case, the plaintiff used the emergency key to open the pharmacy when no pharmacist was present after another assistant manager requested access to the baby formula kept there. After the co-worker removed and purchased the formula, the plaintiff relocked the pharmacy and secured the emergency key in the store’s safe as required; he failed to document a new security code in the pharmacy’s log book, however.
The assistant manager reported his actions to his manager the next day. After an inquiry, Walgreens fired the plaintiff for violation of its security policy and replaced him with an Hispanic female assistant manager. He sued for reverse discrimination and the court denied his claim because he was unable to prove a basic element of his case: that he was performing his job adequately at the time of his termination. There was no question that the plaintiff violated an important company security policy by allowing another employee into the pharmacy when no pharmacist was present, and that the penalty for such a violation included termination. The manager had been employed by Walgreen for over fifteen years and had access to all the company’s policies via its website, and was responsible for following them. He had no evidence that the company had ever treated another employee better for a similar violation, and therefore, there was no evidence that he was terminated because of his gender, race, national origin or any other unlawful reason.
This case shows the correct way to terminate a plaintiff for violation of company policy. The policy was clearly written and available to employees and provided that a single violation could lead to termination. Therefore, even though the plaintiff had a good employment record, the company was fully within its rights to terminate him for violation of its security procedures.
-- Marc Jacobs, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Lasowski v. Walgreen Co., 2008 WL 4976203 (N.D. Ill. November 18, 2008)].
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Employee’s exposure to sporadic sexual jokes and emails in the workplace not enough to create a hostile work environment.
A public school district was not liable for sexual harassment of a Christian teacher’s assistant who was offended by occasional sexual jokes in the workplace, a federal court recently ruled. The plaintiff worked as a one-on-one aide in a classroom of developmentally disabled students. After a year of work, he abandoned his job, alleging constructive discharge because he had been subjected to a sexually hostile work environment. The court disagreed, finding that the few incidents of which the plaintiff complained were neither particularly severe nor pervasive, and thus, could not support a hostile environment claim.
The conduct of which the plaintiff complained included the following: over the course of a year, the plaintiff saw (via email printouts left in the lunchroom) or overheard several jokes or comments made by coworkers that referred to female genitalia and sexual intercourse. On one occasion, a co-worker handed him a copy of a sexual “lawyer joke” concerning actual statements made in court by witnesses. Additionally, as part of his religious beliefs, the plaintiff refused to be alone with a woman other than his wife. On one occasion, a much older female teacher put her hand on the plaintiff’s back and ruffled his hair. Although he told her it made him uncomfortable, she later did the same thing a second time. The plaintiff complained to his supervisor, who had been the source of at least one of the emails, about the sexual material, and she apologized to him. Once, she followed him into a bathroom which he had been assigned to clean and apologized again, even though he protested being alone with her.
The court denied the plaintiff’s claim for constructive discharge because his working conditions were not so intolerable that a reasonable person would have resigned because of them. To find a hostile work environment, the behavior about which a plaintiff complains must be both objectively and subjectively offensive. Although the plaintiff contended he was subjected to sexual material on a daily basis, he could only provide a handful of specific incidents over the course of a year, and only three of them – one email joke, the older teacher’s touching, and the supervisor’s following him into a bathroom – that were directed specifically to him. Although these events may have been personally upsetting to the plaintiff, they were simply not severe nor regular enough to support his complaint.
This case is important as an example of poor handling of a complaint of sexual harassment. Although the defendant was ultimately not found liable, employers should not believe that it is acceptable to tolerate a “little bit” of sexual joking or innuendo in the workplace. In this case, the plaintiff’s own supervisor was the source of some of the jokes; supervisors and managers must be trained to be part of the solution, not the problem. Next time, the employer may not be so lucky.
-- Marc Jacobs, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see. Distad v. Marion Cty. Sch. Dist., 2008 WL 4838845 (D. Ore. November 4, 2008)].
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