October 2004 Quick Clips

Halloween Surprise: Court Sets Aside Multi-Million Dollar Award To Candy Eating Employees, October 31, 2004

The Kentucky Supreme Court recently set aside a multi-million dollar jury award in favor of four Wal-Mart employees who were fired after being caught eating candy in the store. In the case, Stringer v. Wal Mart Stores, Inc., the supreme court found that Wal-Mart's actions fell far short of the standard required to show "intentional infliction of emotional distress."

The case arose when four Wal-Mart employees were fired in 1995. Their manager claimed they had been videotaped eating "claims" candy, which is candy placed with store items that have been discarded or returned. The employees claimed they were falsely accused of stealing from the store, and that their manager had made up an excuse to fire them in order to reduce payroll expenses.

A jury returned a $3 million punitive damage award and $2 million in compensatory damages to the employees for "embarrassment, humiliation, and mental anguish." The Kentucky Supreme Court reversed this award, finding that the evidence did not show that Wal-Mart's conduct was sufficiently outrageous and intolerable to support a claim for intention infliction of emotional distress. The court listed examples of cases where the conduct was sufficient. In one such case, a Catholic priest serving as a couple's marriage counselor had an affair with the wife. In another case, a building owner intentionally failed to tell a worker who was removing pipes that the building contained asbestos. The court found that Wal Mart's behavior was nowhere near as offensive as that of the defendants in the other cases.

The court's decision in Stringer shows that it is extremely difficult for employees in any state, including Maryland, to establish a claim of intentional infliction of emotional distress against their employers. Although these claims are frequently brought by employees seeking multi-million dollar damage awards, they are quite often dismissed before trial.

Settlement Agreement Reached in Federal Aviation Administration Reverse Discrimination Case, October 29, 2004

by Sarah C. Chernish

The FAA recently agreed to conduct an extensive review of its affirmative action program in a settlement agreement for a case alleging reverse discrimination. Long time FAA employee Michael Ryan, a white male, filed suit alleging the FAA’s promotion polices led to his being repeatedly passed over for promotions because of his gender and race.

At trial, Ryan argued that several of the minority candidates who were promoted ahead of him were not selected using merit principles, including one African American woman he had personally trained and who had 13 years less seniority. Additionally, testimony revealed the FAA had an unwritten but well publicized "50-50" policy, under which FAA managers were required, as a condition of their own performance reviews, to promote women and minorities at least 50% of the time. Financial and career incentives were awarded if these managers met and exceeded those promotion goals, and they were warned that they would be held accountable if they did not. The FAA had also been asked to conduct a review of its promotion policy by the Clinton Administration, which it refused to do. This review would likely have found the policy unlawful because the FAA had no history of discriminatory hiring and promotion patterns against minorities, and therefore could not justify a racial quota program.

After nine years of litigation, the parties have agreed to a formal consent order. In that order, U.S. District Court Judge John W. Bissell directed that "the FAA shall not implement any program or policy using race, national origin, or sex as factors in FAA Personnel Decision- Making unless such program or policy is first reviewed for legal compliance..." And the FAA, while not admitting liability for its policies or it’s treatment of Ryan, has agreed conduct a comprehensive review of its hiring and promotion practices, programs, and policies, and to report its progress to Ryan for a period of two years. If Ryan is dissatisfied, he has the right to invoke a unique, three-step, dispute resolution process that culminates in binding arbitration. Additionally, Ryan is being promoted to a supervisory position at the FAA, and will receive a substantial upward salary adjustment, eight years of back pay, and $360,000 in attorney’s fees.

Michael C. Ryan v. Federal Aviation Administration, U.S. District Court for the District of N.J. (994128), Oct. 6, 2004.

A Stain on DuPont- Jury awards $1.29 Million for ADA discrimination, October 28, 2004

by Sarah C. Chernish

A New Orleans jury recently awarded a former DuPont worker a million dollars in punitive damages, $200,000 in front pay, and $91,000 in back pay after finding the company discriminated against her because of a disability. Laura Barrios, who has severe scoliosis, had worked for the company for 18 years when DuPont required her to take a functional capacity exam (FCE) which was neither job-related nor consistent with business necessity. Although Ms. Barrios passed the test, DuPont evaluated her to be a direct threat to herself and others because DuPont thought she might have some difficulty safely evacuating the plant in case of an emergency. Ms. Barrios told the jury she had "tried to prove to them that I could safely evacuate the plant site, but they would not let me prove it. All I wanted was to do my job."

Thus, employers who seek to "protect" employees with disabilities may do so at their own risk. The EEOC's General Counsel noted "the jury's verdict should signal employers that they should abandon paternalistic and discriminatory ideas about people with disabilities. Employers should engage in dialogue with employees with disabilities so that their employees receive effective and reasonable accommodations."

Bill to Kill Secret Ballot NLRB Elections Gains Support, October 22, 2004

by Frank L. Kollman

Senator Kennedy, the "conservative" senator from Massachusetts according to one high-level government official, has introduced a bill that favors card checks over secret ballot elections in deciding whether employees should be unionized. Currently, employers can insist on secret ballot elections under the 79-year-old National Labor Relations Act. Unions have not been faring so well, however, so the AFL-CIO wants to grease the process by eliminating what some advocates would call the cornerstone of free choice: the secret ballot.

Virtually all Democrats running for the Senate this year have endorsed the bill. Whether the bill will have enough support to pass in the next Congress remains to be seen. The opposition should be fierce.

Court Allows Employees to Sue Based on Employer's Lies, October 20, 2004

by Frank L. Kollman

A federal appeals court has ruled that employees can proceed with their fraud claims against an employer who lied about keeping the plant open. The employer, Ford Motor Company, told the employees that the plant would remain open for six years when it knew it planned to close the plant. Ford argued that federal labor law superseded state common law fraud claims; the court disagreed. Alongi v. Ford Motor Co., No. 02-2514 (6th Cir., October 13, 2004). Now, if the Ford employees can demonstrate that they relied on the false statements and were somehow damaged, they can be awarded compensation.

Poor Performance and FMLA Leave, October 18, 2004

by Frank L. Kollman

It is not unusual for a poor employee to contend that his or her termination was the result of illegal discrimination. Many poor employees think they are doing a good job, even when they have 17 disciplinary notices in their personnel file.

That's what one employee thought when he was fired by the casino that employed him. He claimed that his termination, despite his dismal record, was because he took intermittent leave under the Family and Medical Leave Act to care for his sick son. Fortunately, a federal court found the disciplinary record convincing evidence of non-discriminatory motive. Dearinger v. Racing Ass'n of Central Iowa, No. 4:03-cv-40284 (S.D. Iowa, September 24, 2004).

This case demonstrates the value of a well-documented case of poor performance. Employers are frequently confronted with FMLA leave demands from poor employees; the FMLA has become something of a weapon for those employees. Poor performance cannot be an excuse to deny leave, but properly documented employment problems will allow the company to discharge them later, despite the use of FMLA leave.

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