May 2007 Quick Clips

Boss Must Shut Up, May 24, 2007

Managers who voice negative views of disability accommodations risk running afoul of the Americans with Disabilities Act. In one recent case, an employee with mild schizophrenia asked for, and received, a screen partition around her desk "to protect her functions and respect." She was later transferred to positions with fewer duties and responsibilities. She sued for disability discrimination, alleging in part that the transfers were based on disability.

The court permitted the case to go forward, based in part on the fact that the plaintiff’s supervisor "opposed the screen." The lesson here is that granting an accommodation is not enough. In this case, the partition was granted as a disability accommodation, but the supervisor did not think it made for a good working environment. Where disabilities are concerned, supervisors criticize at their peril. It is safer to shut up.

Keller-McIntyre v. San Francisco State Univ., No. C-06-3209 MMC (N.D. Cal., Mar. 12, 2007).

Stay Above the Fray, May 24, 2007

The attorney fee provision in the Fair Labor Standards Act is a two-edged sword. On the one hand, plaintiffs’ attorneys are attracted to cases where liability is often cut-and-dried and courts are required to award fees. On the other hand, clear liability usually means early settlement and therefore a low fee. The temptation is for plaintiffs’ attorneys to "churn" the file.

Case in point: Attorney Peter Mavrick managed to work 454.7 hours on a case that, in the court’s opinion, should have required only 18.9 hours. Thus, instead of a $143,000 award, he got only $5,000.

One might conclude that the defendant would be entitled to monetary sanctions as compensation having to pay al lawyer to defend against those 400 or so excess hours. But the court declined, citing abuse of the judicial process by both sides’ lawyers. This conduct included name calling, profanity-laced tirades, fax abuse (636 pages in one week), duplicative filings, bad deposition behavior, and disobedience of court orders on one side or the other.

The lesson: If your opponent is engaging in bad faith conduct, stay above the fray. Take the high road.

Carlson v. Bosem, No. 04-61004-CIV-ZLOCH, 12 WH Cases 2d (S.D. Fla., Apr. 9, 2007).

Was Steamfitters Union a Welder’s Employer? May 24, 2007

A federal magistrate judge has held that a welder/foreman, laid off after 21 years with the same construction company, is to be treated as an employee of his union (Steamfitters Union Local 601) and not the construction company for purposes of reinstatement under the Family and Medical Leave Act. The FMLA requires that, upon return from medical leave, an eligible employee must be restored to his previous position or its equivalent (unless he would not be in the job even without taking leave).

The federal court held that the welder/foreman’s construction job disappeared when he was laid off and that he somehow became an employee of the union when (after recovering from knee surgery) he went on the union’s hiring list and then retired with a union pension. The decision also implies that the welder/foreman’s reinstatement rights under the FMLA extended only to being returned to the union hiring list. No legal authority is cited for the court’s conclusions, which seem dubious.

Klich v. Gabe’s Constr. Co., No. 05-C-1262, 19 AD Cases 395 (E.D. Wis., Feb. 20, 2007).

Firefighter Largesse, May 18, 2007

by Pete S. Saucier

The Supreme Court refused to consider a lower court decision that allows firefighters to collect overtime pay for being scheduled to work, while paying another firefighter straight time to replace him on the scheduled shift. The city involved is quoted describing the effect, "The ruling encourages senior employees to trade off overtime hours, pay straight time pay to the subordinate substitute, and pocket the overtime without ever working the shift."

Good Samaritans Take Heart, May 16, 2007

by Pete S. Saucier

Jason Little, a clerk at Eastgate Discount Beer and Tobacco, watched through the store window as a man began to assault a woman across the street. Dutifully, Little grabbed a baseball bat from under the store counter and went to the woman's rescue. Eastgate's owner terminated Little's employment because he saved the woman, writing, "This was none of our business, store cannot be put in this kind of liability." Little sued for wrongful discharge, and Eastgate moved to dismiss. The Court of Appeals of Tennessee allowed the case to go forward, finding that it is the public policy of the State of Tennessee that an employee may leave his work premises "in order to save another whom he reasonably believed was in such imminent danger of death or serious bodily harm."

Road Rage Reinstatement Not A Violation Of Public Policy, May 9, 2007

by Pat Stewart

Do you get upset with people who drive slow in the left hand lane? I do. And I personally believe it is a leading cause of accidents as other drivers have to maneuver around the slow pokes who are either clueless about the rules of the road or selfish jerks. As much as it bothers me, I have not gone so far as to shoot the offending driver’s car with a paint ball. That’s what got one employee in trouble one day.

Jason Glassey, a toll collector working for the Garden State Parkway, got off his shift “[f]eeling a lot of stress” and “a little annoyed.” While driving home and still in uniform, Glassey was mired in the left lane of the parkway behind a slow-moving van. According to Glassey:

I came up behind a line of cars behind a white work van that was driving in the left lane and pacing the car in the right lane next to him. After a couple minutes the other cars in front of me finally sneaked around the white van and passed him on the right. The previous Monday I had been playing paintball with my friends, and I still had my paintball marker gun in my truck. As I saw a chance to pass the white van I began to pass him on the right. In a moment of anger, and extreme stupidity, I grabbed the paintball gun and fired several shots at the passenger window.

It turns out that four balls of blue paint hit the van at the front windshield and passenger-side window and paneling. The driver of the van saw Glassey laughing as he sped by. Although the van’s driver was not injured, he nonetheless pursued Glassey, and eventually flagged down a New Jersey State Trooper, who caught up with him. The trooper reported that Glassey stated: “the guy pissed me off because he would not move [to the right].”

Glassey was charged with possession of a weapon for an unlawful purpose, and interference with transportation. The Turnpike Authority suspended him without pay. Pursuant to the collective bargaining agreement between the Authority and Local 196, International Federation of Professional and Technical Engineers, AFL/CIO (Local 196), a disciplinary hearing was held, in which Glassey invoked his Fifth Amendment right against self-incrimination. As a result, he was terminated.

Following his discharge, Glassey pled guilty to the disorderly persons offense of interference with transportation and he was given to two years probation, conditioned on psychiatric counseling. Thereafter, Local 196 filed a grievance contesting Glassey’s termination and took the case to arbitration. The arbitrator declared that Glassey was not terminated for just cause, and ordered that he be reinstated. However, because the arbitrator could not “condone [Glassey's] actions,” he concluded that Glassey was not entitled to back pay, and ruled that the eleven-month period between Glassey's termination and the award was a disciplinary suspension.

The Authority filed an action in state court for which it sought to vacate the arbitration award on the basis that the award violated public policy, contending that the Arbitrator failed to give appropriate weight to Glassey's actions in light of accepted public policy. The litigation traveled to New Jersey’s highest court which then held that although Glassey’s actions could be considered in violation of public policy, the arbitrator’s award could not as the public policy favors the resolution of employment disputes in the arbitral forum.

Presumably, Glassey is still collecting tolls. I wonder if he still plays paintball.

Lesson Learned The Hard Way--Responding To Discrimination Charges, May 8, 2007

by Pat Stewart

A delivery company recently found out the repercussions for changing its “story” when faced with claims of discrimination and the importance of exercising care in responding to charges of discrimination.

Wayne McGaughy worked as a route driver for a company that went out of business. Shortly thereafter, Ozark Delivery offered McGaughy and his co-workers an opportunity to apply for jobs with it, and Ozark eventually offered jobs to 21 of the 40 applicants, but not to McGaughy, who is white and was 59 at the time of his application.

McGaughy then filed a charge of discrimination with the EEOC, contending that he was discriminated against on the basis of his race and age. During the EEOC’s investigation, Ozark’s owner told the investigator that McGaughy was not hired because it had filled all the routes.

When McGaughy later sued, Ozark changed its story and claimed that McGaughy was not offered a job because his prior supervisor, who was working for Ozark at the time of McGaughy’s application, told Ozark that he had a history of insubordination and attendance issues. When Ozark moved to dismiss the case on summary judgment based on its assertion that the company had legitimate, nondiscriminatory reasons for not hiring him, the court noted that its shifting reasons for not hiring him could be viewed as a pretext for discrimination and that McGaughy could proceed with his lawsuit and allow the jury to decide if indeed the shifting reasons were a pretext.

The lesson to be learned here is basic and simple—don’t take discrimination charges lightly, because if you do, it could later come back to haunt you. Had Ozark been up front with the EEOC investigators, it probably could have won the case on summary judgment. When responding to discrimination investigations get all the facts and prepare any witnesses that may be interviewed. And be sure that any position paper sent to the EEOC or any investigative agency is entirely accurate because you surely don’t want it to be Plaintiff’s first exhibit in court proceedings.

McGaughy v. Ozark Delivery of Ala. LLC, M.D. Ala., No. 2:06-cv-320-MEF (May 1, 2007).

Enough is Enough: Religious Accommodation Has Its Limits, May 4, 2007

by Frank L. Kollman

A federal appeals court has upheld the firing of a pharmacist who, for religious reasons, refused to have anything to do with birth control prescriptions. Noesen v. Medical Staffing Network Inc., No. 06-2831 (7th Cir., May 2, 2007). His employer at first allowed him not to fill, take orders, or in any way become involved in such prescriptions. The final straw was when the pharmacist put doctors and customers calling about birth control on hold and refused even to tell other pharmacists that there was someone on the phone. The court agreed that allowing the employee to take such action was not a reasonable accommodation to his religious beliefs. No kidding.

Employer May Be Liable for Not Recognizing Need for FMLA Leave, May 1, 2007

by Frank L. Kollman

A federal court in Tennessee has allowed an employee who did not seek FMLA leave to sue under the FMLA as a result of her termination for absenteeism. The court found that the employee, who was out for four consecutive days, may have given sufficient notice to the employer that she might have a "serious health condition." At least, the court said it would give her the opportunity to convince a jury. Stevens v. Advance Stores Co., No. 3-06-0537, (M.D. Tenn. April 17, 2007).

If you are covered by the FMLA (50 or more employees), you need to evaluate the reasons for absences with this case in mind. As the court said, if the employer had evidence that the employee's absences were caused by more than a cold, it may be required to investigate further to determine if the FMLA is implicated. Otherwise, disciplinary action may give rise to a lawsuit.

Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
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