It's Just a Little Nibble, August 26, 2005
Lawyers who bemoan the sad, "unfair" image that we carry in the community will not be happy with this development. A cadre of attorneys who represented a class of employees in a case in Illinois will receive a fee between 17% and 29% of a total settlement against IBM. Sound reasonable? Well, maybe until you hear the fee upon which the percentage is based – $314 million to $1.7 billion. That's right, billion with a "b". Poor, poor, picked on plaintiff lawyers!
The Wheels On The Bus Go Round And Round, August 26, 2005
Bruce Boice, a bus mechanic for the Southeastern Pennsylvania Transportation Authority, a loyal member of Local 290 of the Transport Workers Union, thought nothing about stashing repair orders in his locker and falsely certifying that safety-sensitive repairs had been performed. The buses were returned to the roads with Boice's imprimatur. When SEPTA discovered the problem, Boice lost his job.
Apparently unaware that public transportation safety merits careful protection, a labor arbitrator decided that Boice should get a second chance, and that preposterous decision was upheld on the initial appeal. Thankfully, the Pennsylvania Commonwealth Court, paying attention to reality and current events, reversed that decision. No word on why the TWU pursued the matter in the first place.
Large Price for Banning Small Tank, August 14, 2005
by Thomas A. Bowden
Beverly Kelly worked as a customer service representative in an office environment. After suffering a blood clot, she needed a personal oxygen tank. Without oxygen, she became lightheaded and short of breath. With oxygen, she was able to perform all her job duties. She asked permission to bring in the tank to work. Her employer flat-out refused. They did write her a nice letter, telling her she had been “an exceptional employee these past years,” one whose “professionalism and genial manner endeared [her] to all of us.” But they fired her anyway. Then she sued. A jury awarded her $50,000. On appeal, the employer argued she wasn’t really “disabled.” The court said it doesn’t matter, because you regarded her as disabled, and therefore you should have accommodated what you thought was her disability.
As the court put it, the Americans with Disabilities Act “encourages employers to become more enlightened about their employees’ capabilities, while protecting employees from employers whose attitudes remain mired in prejudice.” Translation: it’s a small thing, a “reasonable accommodation,” to allow the oxygen tank. Do it next time.
Kelly v. Metallics West, Inc., 16 AD Cases (BNA) 1538 (10th Cir. June 7, 2005).
Honesty Is the Best Policy for Retarded Employees Too, August 14, 2005
by Thomas A. Bowden
Roger Hall was an overnight stockperson and maintenance worker for Wal-Mart. One night he stopped at the Wal-Mart pharmacy to pick up a prescription. He saw $92.00 in cash on the counter. He took it and left the store. The customer whose money it was returned and asked where it had gone. When Hall reported to work, he admitted to the store manager that he had taken the money. Wal-Mart fired him for dishonesty. Hall sued, but the federal court found in favor of Wal-Mart without a trial.
Hall argued that Wal-Mart should have disciplined him less harshly as an accommodation to his disability. It seems that he was mentally retarded (IQ of 53, the “low end of the mild mental retardation range”). The court rejected that idea. Honesty is an essential quality for a Wal-Mart employee, and Hall proved himself unqualified by taking another’s money. Requiring Wal-Mart to tolerate dishonesty in some employees and not others would impose an undue hardship.
Moral of the story: Even mentally disabled employees can be held to moral standards. Hall v. Wal-Mart Associates, Inc., 16 AD Cases (BNA) 1567 (M.D. Ala. Jan. 25, 2005).
Accommodating the Communication-Challenged Employee, August 14, 2005
by Thomas A. Bowden
Carmon Cole is deaf, can hardly speak, has trouble understanding written instruction, and cannot understand verbal instructions at all. For twenty years, he held a variety of jobs at a plastics company. He had been warned repeatedly control his temper. One day he got frustrated and threw a razor-sharp box cutter across the room (at a table, not at any employee). The company fired him. Cole sued, but lost. Among other things, the court held that Cole was not entitled to an interpreter to help him state his case during the employer’s investigation of the incident.
This case is also interesting for the degree of accommodation shown to Cole over twenty years. The company often paid for a sign-language interpreter for important events, such as his orientation in 1983, company meetings, and performance reviews. The company installed warning lights to supplement audible alarms on the factory floor. Supervisors learned sign language. The company sometimes videotaped meetings then hired an interpreter to guide Cole through what happened. Employees adjusted their normal methods of communication to accommodate Cole. Many conversations were carried on like games of charades, acting out what was desired.
Cole v. Teel Plastics, Inc., 16 AD Cases (BNA) 1573 (W.D. Wis. June 8, 2005).
What's on the Supreme Court's Docket?, August 9, 2005
The Supreme Court has a number of labor and employment related cases on its docket scheduled for oral argument in the fall of 2005:
FLSA: Tum v. Barber Foods, 360 F.3d 274 (1st Cir. 2004), cert. granted, 125 S. Ct. 1295, and IBP, Inc. v. Alvarez, 339 F.3d 894 (9th Cir. 2003), cert. granted, 125 S. Ct. 1292. Is walking and waiting time associated with the donning and doffing of required safety equipment compensable under the FLSA?
Title VII: Arbaugh v. Y&H Corp., 380 F.3d 219 (5th Cir. 2004), cert. granted, 125 S. Ct. 2246. Is Title VII's 15-employee requirement a non-waivable jurisdictional requirement?
Public Employment/First Amendment: Garcetti v. Ceballos, 361 F.3d 1168 (9th Cir. 2004), cert. granted, 125 S. Ct. 1395. Is a purely job-related memorandum on a matter of public concern protected by the First Amendment? Here, a deputy district attorney who wrote a memorandum to his supervisor alleging that the deputy sheriff lied on a search warrant application.
Section 1981: Domino's Pizza v. McDonald, 107 Fed. Appx. 18, cert. granted, 125 S. Ct. 1928. Can a shareholder recover under 42 U.S.C.§1981 for a third party's breach of contract with the corporation?
IDEA: Schaffer v. Weast, 377 F.3d 449 (4th Cir. 2004), cert. granted, 125 S. Ct. 1300. Which side bears the burden of proof in an administrative hearing under the Individuals with Disabilities Education Act, once parents of a disabled child reach impasse with the school district over the child's individualized education program?
FTCA: United States v. Olson, 362 F.3d 1236 (9th Cir. 2004), cert. granted, 125 S. Ct. 1591. Are inspectors and supervisors for the Mine Safety and Health Administration immune under the Federal Tort Claims Act for negligence in carrying out or failing to carry out mandatory agency policies and procedures?
11th Amendment Immunity: United States v. Georgia, cert. granted, 125 S. Ct. 2256, and Goodman v. Georgia, 125 S. Ct. 2266; Goodman v. Ray, 120 Fed. Appx. 785 (11th Cir. 2004). Is there 11th Amendment immunity under Title II of the ADA when applied to prison administration? The Court found no immunity as Title II relates to access to legal services in Tennessee v. Lane, 541 U.S. 509 (2004), but found no waiver of immunity under ADA Title I in Board of Trustees of University of Alabama v. Garrett, 513 U.S. 356 (2000).
CSRA: Whitman v. Dep't of Transp., 382 F.3d 938 (9th Cir. 2004), cert. granted, 125 S. Ct. 2962. Does the Civil Service Reform Act's provision stating that collectively bargained grievance procedures are the exclusive means of resolving employee grievances preclude judicial review of federal employees' statutory and constitutional claims?
Sleepy Truck Driver Has No Ada Claim, August 8, 2005
Paul Coleman was employed as a tractor-trailer driver for Keystone Freight Corporation in New Jersey from 1997-2000. He drove short hauls of between 45 minutes to three hours each way. In 1999, Coleman was diagnosed with hepatitis C and started taking various medications, one of which caused fatigue. The fact that he could fall asleep while driving apparently was not significant to Coleman; he did not tell his employer about the side effects of his medicine until almost a year later.
In 2000, Coleman heard a rumor that all Keystone drivers would have to start driving longer trips. Coleman finally told his dispatcher about the medication's side effects and brought in a doctor's note stating that his medical condition prevented him from driving long periods of time. Coleman was fired shortly thereafter because of U.S. Department of Transportation regulations prohibiting a driver from operating a commercial vehicle when his ability or alertness could become impaired or while under the influence of drugs which render the driver incapable of safely operating the vehicle. 49 C.F.R. §§ 392.3, 392.4(4) (2005).
Undaunted by the federal regulations, Coleman sued Keystone for firing him in violation of the ADA. Both the trial and appellate courts held that Coleman was not a qualified individual under the ADA because his medications prevented him from safely driving a truck. In a victory for public safety, the appellate court found that the DOT regulations required Keystone to take Coleman off the road because he could easily become fatigued. Coleman v. Keystone Freight Corp., No. 04-2884 (3d Cir. July 29, 2005).
Weird Behavior at Work is Not Harassment, August 4, 2005
You can’t make this stuff up. A male Kal Kan Foods employee has lost his case alleging sex harassment and discrimination arising from the behavior of a male co-worker who, it was claimed, forced him to simulate sex acts, pulled hair out of his chest, and bit him on the neck. Shafer v. Kal Kan Foods Inc., No. 04-2066 (7th Cir., August 1, 2005).
Thad Shafer’s wife apparently had affairs with some of his co-workers at Kal Kan. Thad, understandably, had some concerns about wife's actions and quarreled with those co-workers. This continued quarreling disrupted his ability to do his job and he was fired. That was Kal Kan’s story. Thad’s story was that he was attacked by co-worker Dill, a physically larger guy who made Thad do certain weird, sexual, things that went "beyond bullying language and sexual innuendo," and that appeared to be designed to demonstrate physical domination." Thad alleged that he complained to his female manager, but that nothing was done. The manager denied that Thad complained to her.
Reviewing dismissal of the case on summary judgment by the trial court, the Seventh Circuit held that the facts did not show that Kal Kan reacted differently to reports of sexual harassment from women rather than men, that working conditions were worse for men than for women, or that the company was aware of Thad’s initial complaint when it decided to fire him. "Whether or not Kal Kan responded in the best way to the workplace acrimony traceable to [Thad’s wife] and her lovers, such matters are outside the scope of Title VII," said the court.
Dill’s four incidents of very bad behavior were not pervasive enough to be objectively hostile, nor was there evidence that it created working conditions that were worse for men than women. The court found the behavior different from "brief episodes" of actionable harassment in other cases, like Hostetler v. Quality Dining Inc., 218 F.3d 798 (7th Cir. 2000). In that case, said the court, "what turned sexual assaults by a co-worker (which do not violate Title VII) into sex discrimination by the employer (which does) was the management's response: instead of firing or disciplining [the harasser], the firm decided to separate the pair by moving [the plaintiff] to a distant and less desirable restaurant. In other words, the firm forced the female victim to bear the costs of 'solving' the problem.”
Veterans Rehired One Week After Asking OK Under USERRA,August 1, 2005
Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employers must provide “prompt reemployment” upon an employee’s return from military service. 38 U.S.C. §§ 4301(a). The law, however, does not define what "prompt reemployment" means. The Fifth Circuit has held that it means “as soon as practicable under the circumstances of the case." Rogers v. City of San Antonio, 392 F.3d 758 (5th Cir. 2004). Recently, the federal district court in North Dakota held that a company's rehiring of two returning Iraqi veterans within one week after they sought to return to work met the requirement. Vander Wal v. Sykes Enter. Inc., No. A1-04-49 (D.N.D. July 21, 2005).
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