Employee’s Complaint About Another Employee’s "Imprudent" Remark Insufficient to Support Retaliation Claim

At a company dinner, a supervisor commented to a young male employee that she preferred younger men and had engaged in multiple workplace relationships. A vice president of the company learned of the supervisor’s comments and reported them to management as sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII). At the same time, he reported that the same supervisor was racially discriminating against a subordinate whom he believed she had treated too harshly. The vice president was subsequently fired due to his inadequate work performance. He then sued the employer alleging that he was fired in retaliation for opposing the supervisor’s sexual and racial harassment of other employees in violation of Title VII and Section 1981. The U.S. Court of Appeals for the Seventh Circuit rejected the vice president’s claim. The court found that the vice president did not engage in “protected activity” when he reported the supervisor’s purported sexual harassment because he could not have reasonably believed that the supervisor’s behavior, “a single instance of sexually charged remarks,” amounted to sexual harassment. The court reasoned that while the supervisor’s remarks were “imprudent,” they were “relatively tame.” Although the court did find that the vice president engaged in protected activity when he reported what he believed to be racial discrimination, the vice president did not present evidence to rebut the employer’s legitimate reason for terminating him, in that his work performance was not adequate. The court consequently dismissed his case. Employers must be certain that adverse action is never taken against an employee for having opposed what he or she reasonably believed to be unlawful discrimination or harassment.

O’Leary v. Accretive Health, Inc., No. 10-1418 (7th Cir. Oct. 19, .2011)

Employee Fails to Demonstrate that Termination was act of Discrimination or Interference with Leave

An employee was terminated after she took approved Family and Medical Leave Act (FMLA) leave for surgery, but failed both to contact the employer after leave expired and to return to work. The employer’s FMLA leave policy required employees to“properly report” their absences to their department prior to the beginning of their shift each day until the employee received formal notification that FMLA leave had been approved. Failure to provide proper notification for three consecutive workdays subjected the employee to termination. Separate and apart from the FMLA issue, the employee had also complained to her supervisor twice that an African American employee was being treated unfairly due to race. Following her termination, the employee sued, claiming retaliation in violation of 42 U.S.C. § 1981, and interference and retaliation under the FMLA. The U.S. Court of Appeals for the 10th Circuit found that the only evidence presented by the employee was, at best, that of potential pretext, not of actual retaliatory intent. Employers should have handbook provisions and posted notifications about FMLA leave so that employees are aware of their rights and responsibilities. Employers should also have policies and procedures in place for communications with employees while out on leave.

Twigg v. Hawker Beechcraft Corp., No. 10-3118, (10th Cir. Oct. 13, 2011).

Employee’s Failure to Demonstrate Satisfactory job Performance Renders ADA Claim Invalid

A part-time janitor did not receive any of the promotions for which he applied, and was later terminated for performance reasons. He sued his employer, claiming that his termination was discriminatory in that it was based upon his menta disability. In reviewing the evidence and ruling on the employer’s motion for summary judgment, the court determined that while the employee did have a mental disability and had made a complaint about discrimination, he had significant performance-related issues that contributed to his lack of promotion and his ultimate termination. Because the employee failed to demonstrate that he was meeting the employer’s reasonable expectations of the job and performing his job satisfactorily, he could not maintain his claims under the Americans with Disabilities Act. Further, the fact that a supervisor made a comment to him that he “should not be suing [his] employer” if he wanted to get a promotion was not determinative and the remark, alone, did not support his claim for retaliation. This case demonstrates the significance of having well- documented performance records, which, here, helped to overcome a supervisor’s “imprudent” remark and ultimately assisted the employer in securing a dismissal in its favor.

Dickerson v. Board of Trustees of Community College District No. 522, No. 08-CV-716 (7th Cir. Sept. 16, 2011).

Eighth Circuit Denies Class Certification Based on Dukes and Admits Third-Party Evidence to Prove Plaintiffs’ Claims

Six African American employees who worked in their employer’s steel plant in Blytheville, Arkansas, sued the employer. They alleged that the employer had violated Title VII of the Civil Rights Act of 1964, as amended, by systematically refusing to promote black employees and by allowing for a racially hostile work environment. In addition to their own claims, the employees sought to represent a class of approximately 100 other employees and job applicants representing the plant’s five different departments. The district court denied the request for class certification but allowed the employees’ six hostile work environment claims to proceed to jury trial. Each plaintiff was awarded $200,000 in damages. The employer appealed, contending that the court erred during the trial by allowing admission of evidence of alleged discrimination against employees other than plaintiffs. Plaintiffs cross-appealed, objecting to the court’s denial of class certification. The U.S Court of Appeals for the Eighth Circuit affirmed the district court on both grounds. First, in addressing plaintiffs’ argument regarding the denial of class certification, the court looked to the U.S. Supreme Court’s recent determinations on class action matters in this context and determined that although all of the claims involved the Blytheville plant, the class was improper under Wal-Mart v. Dukes, 564 U. S. ____ (2011), because “employment practices varied substantially across the plant’s various production departments.” Second, regarding the employer’s evidentiary objections, the court found that the nonparty evidence was admissible because such evidence “can be relevant to a plaintiff’s hostile work environment claim,” and because, in this case, the district court had conducted a fact-based analysis to determine whether each piece of evidence involved “the same place, the same time, [or] the same decision-makers” as the plaintiffs’ claims. This case demonstrates the compromise that some courts have begun striking in the wake of Dukes: where class actions are denied, parties are permitted to more broadly use evidence of discrimination or other wrongs against nonparties to prove their cases. Employers should be aware of this when managing employees’ complaints or preparing to defend a lawsuit.

Bennett, et al. v. Nucor Corporation, Nos. 09-3831/3834 (8th Cir. Sept. 22, 2011)

Wal-Mart v. Dukes, 564 U. S. ____ (2011)

Employee Fails to Establish race bias on part of Union or Union Representative

An African American employee was terminated after it was determined that he was taking extended break periods and playing pornographic videos in the break room. Through his local union, he pursued a grievance and was represented at a hearing. The employee and his representative argued that other individuals had watched pornographic videos at work and that they had not been terminated, and referenced race-based comments which had been made by employees. After the committee denied his grievance, the employee filed a complaint against the representative and the union, claiming that they had violated 42 U.S.C. § 1981 by deliberately discriminating against him because of his race. The employee claimed that the representative had allegedly failed to argue at the hearing that the employee was terminated due to his race. The U.S. Court of Appeals for the Fifth Circuit upheld the lower court’s decision, finding that the employee did not establish that he was subjected to an adverse union action, and that he did not demonstrate that he was treated less favorably than employees of other races. The appellate court further found that the employee was properly represented at the grievance hearing, that he had ample opportunity to both present evidence and voice his concerns, and that the representative had, in fact, presented information relating to the race claim.

Wesley v. General Drivers, et al., No. 11-10120 (5th Cir. Oct. 5, 2011)

Another California Court Holds Employers must "Make Available," not "Ensure" meal Breaks

For the past few years, California courts have been inundated with lawsuits filed by employees claiming that they did not receive their thirty-minute uninterrupted meal breaks per Labor Code section 512, which provides that:   More ›

Fifth Circuit Recognizes “Hostile Work Environment” Claim Under the ADEA

In a matter of first impression, the Fifth Circuit Court of Appeals reversed summary judgment in favor of the employer and permitted the employee to proceed with his harassment claims under the Age Discrimination in Employment Act.  More ›

Court Erred in Excluding “Me Too” Evidence Relating to Employee’s Claims of Sexual Harassment and Discrimination

The California Court of Appeals recently issued an important ruling about the use of "me too" evidence in discrimination and harassment cases.  More ›

Ninth Circuit: Social Workers are not “Learned Professionals” Under FLSA and are Therefore not Exempt From Overtime Requirements

On September 9, 2011, the Ninth Circuit Court of Appeals held that social workers in the state of Washington are not “learned professionals” under the Fair Labor Standards Act and therefore, are not exempt from overtime compensation. More ›

NLRB Identifies new test for Assessing Bargaining Units in Nonacute Care Facilities

The National Labor Relations Board (NLRB) recently stated that it will no longer apply a special standard when determining whether bargaining units in nonacute health care facilities are appropriate under the National Labor Relations Act. Instead, employees in health care facilities other than hospitals will be subject to the same “community-of-interest” standard that the NLRB utilizes in other workplaces. More ›