Tuesday, September 30, 2014

Employer Who Does Right Wins Transgender Suit

The employer was Credit Nation Auto Sales in Georgia. The employee in question was Jennifer Chavez (formerly Louis Chavez). Within a year of hire, Louis Chavez told Credit Nation that he intended to undergo gender reassignment. The response was initially very positive and supportive. In fact, management sent around an email reminding employees about the policy against harassment.

Thereafter, Ms. Chavez alleged that her workplace began to sour. She was counseled for discussing the details of the reassignment process, which made the other mechanics uncomfortable. Ms. Chavez was counseled for changing into her dress and high heels and then coming back into the garage, which violated garage safety rules. She bragged that she had the number for the vice president, which caused her co-workers to be resentful. The VP had to give everyone his phone number to keep everyone calm. There was also a restroom issue. The company had one gender-neutral bathroom reserved for customers and office employees. Ms. Chavez wanted to use that bathroom but was told she had to use the one for mechanics. Credit Nation consulted its attorneys and told her again that she had to use the one for mechanics. One morning Ms. Chavez came to work, got into the back of a car to warm up, and fell asleep-while on the clock. She was fired and sued.

The federal district court in Georgia granted summary judgment to the company. It found that while Ms. Chavez could legally file a transgender case, the facts of this case proved that Ms. Chavez was fired for sleeping on the job and not discrimination. Credit Nation had proof that it had fired another employee for sleeping on the job and this comparator evidence negated the discrimination issue.

Monday, September 29, 2014

When It Comes to Religion, Employers Must Know It To Be Liable

Well, that is the rule according to a recent Fifth Circuit Court of Appeals’ decision.  The case involved a nursing home aide who refused to pray with a Rosary. This aide, Kelsey Nobach, was asked by a nursing assistant to help a resident that requested a Rosary be read to her. Ms. Nobach refused to do it, telling the nurse’s assistant who asked her, “I’m not Catholic, and it’s against my religion.” She did not provide any further explanation. Moreover, this nurse’s assistant was not a supervisor. The resident complained that no one read her the Rosary. The management investigated, called Ms. Nobach in, and then told her she was being terminated for insubordination. Ms. Nobach told the supervisor that it violated her religious beliefs after he terminated her. Factually, the record was undisputed that the employer did not have knowledge of her religious beliefs prior to her termination.

Ms. Nobach filed suit and prevailed at her jury trial. However, the Fifth Circuit came to a different conclusion. “We simply cannot find evidence that Kelsey ever advised anyone involved in her discharge that praying the Rosary was against her religion.” Without that evidence, the Court did not believe a reasonable jury could find in her favor. It should be noted that the Court conceded that if any evidence had been produced suggesting management knew of her religious beliefs, the jury was entitled to find in her favor.

Friday, September 26, 2014

Do You Really Want Your Employee To Work During FMLA Leave?

An employer who did want an employee to work during her FMLA leave is now facing trial for interference with her rights.

Tondalaya Evans was the Payroll and Insurance Manager at Books-A-Million. She was due to begin her maternity leave shortly but the new payroll system she was implementing was delayed. It happened that the implementation would need to occur during her leave. Her supervisor told Ms. Evans that the company “really needed” her to work on the system such that she felt she had no choice but to work during her maternity leave. It seems that the work from home did not go as the supervisor liked. When Ms. Evan returned to work, she was reassigned to a new position in part because the company was not happy with the work she did from home. Ms. Evans rejected the new position for which she had no experience and required her to travel. The company fired her.

The lawsuit followed. The alleged violations were: FMLA interference because they made her work during her leave; and then violation of FMLA when they reassigned her upon her return. The Eleventh Circuit Court of Appeals said that Ms. Evans could proceed on her claims. The fact that Ms. Evans would have not lost any income in the new position did not doom her claims. The harm that must be shown to prevail need not be monetary but can be any harm remedied by equitable relief. Ms. Evans may prevail if she can persuade the jury that her reassignment was based on her performance while she was supposed to be on leave and then she was reassigned to an inferior position.

Thursday, September 25, 2014

Bank of America Prevails In Age Discrimination Case

The Second Circuit Court of Appeals has affirmed summary judgment against the plaintiff John Delaney. Mr. Delaney was terminated as part of reduction in force.

Mr. Delaney had been employed at Bank of America for 22 years working in multiple departments with generally positive performance reviews. In March 2010, Mr. Delaney had his final transfer. In July 2010, Mr. Delaney received a negative mid-year evaluation reflecting his decrease in production. The following month a company wide reduction in force occurred with managers instructed to select under-performing employees for termination. Mr. Delaney was the only member of his group to be terminated and he was also the oldest. He was ranked 136th among the Bank’s entire sales personnel and his performance in the new department was the worst of all the employees at his level.

At the trial court, Mr. Delaney tried to introduce a co-workers EEOC charge that described alleged age related remarks by managers at Bank of America. The Court excluded those witness statements as inadmissible and noted that there was no evidence that the statements had any bearing on Mr. Delaney’s employment. Mr. Delaney could not rebut Bank of America’s assertion that he was terminated for performance issues and show that “but, for” his age, he would not have been terminated.

Thursday, September 18, 2014

Tinder Co-Founder’s Sex Harassment Suit

Popular dating-app Tinder (and its parent company IAC) has settled a sex harassment suit filed by its sole female co-founder. The allegations are against the other two co-founders, Sean Rad and Justin Mateen.

The female co-founder is Whitney Wolfe. On June 30, she filed a lawsuit accusing her fellow co-founders (both men) of subjecting her to “horrendously sexist, racist and otherwise inappropriate comments, emails and text messages.” The conduct was said to have occurred over an 18-month period. Ms. Wolfe did have a romantic relationship with Mr. Mateen that ended shortly before her termination. Ultimately, Ms. Wolfe was stripped of her co-founder status and allegedly terminated because she was a 24-year old woman. She was told that having a “girl founder” devalued the company. Ms. Wolfe stated that Mr. Mateen was purportedly suspended following Ms. Wolfe’s legal claims that he had called her a “whore” and “gold digger” in front of Mr. Rad. Apparently, the complaint contained screen shots of some of the offensive text messages. The suit alleges that Tinder’s executives fit into the stereotypical misogynistic and alpha males that are associated with technology start-ups.

The lawsuit was quickly settled for the usual undisclosed amount.