Thursday, August 27, 2015

Paid Suspension Not Adverse Employment Action



The Third Circuit Court of Appeals has joined six other circuits in holding that a paid suspension does not qualify as an adverse employment action under Title VII.


Michelle Jones had been suspended with pay while her employer SEPTA investigated allegations of fraudulent timesheets. At the end of the investigation, it fired her. She filed suit alleging sex discrimination and retaliation as well as a few other charges. Ms. Jones asserted that her paid suspension was a discriminatory act.


For the first time, the Third Circuit reviewed whether the paid suspension should qualify as an “adverse employment action.” To establish a discrimination claim, the employee must show that the employer’s discriminatory acts resulted in negative changes to the “compensation, terms, conditions or privileges of employment.” The paid suspension in this case did not negatively impact the terms and conditions of her employment. Thus, the employee failed to establish a case of discrimination under Title VII. Ms. Jones lost on her other claims as well because she failed to report discrimination per the company’s internal reporting policies and the employer took prompt and remedial action once informed. Ms. Jones did not allege that her paid suspension was retaliatory.


Wednesday, August 26, 2015

FMLA Leave Should Not Be A Vacation



Lucy Fitterer suffered from migraines during her employment for the State of Washington Employment Security Department. She was entitled to and received intermittent FMLA leave.


However, when Ms. Fitterer submitted a doctor’s note excusing her from work for a two-week period for “FMLA vacation,” things changed. Her “FMLA vacation” was taken on a two-week boat cruise. The company learned of the cruise while she was gone. The employer contacted Lucy’s doctor and asked some questions about her medical condition. When the doctor responded, he said that Ms. Fitterer’s medical condition did not preclude her from working the entire two weeks. When Ms. Fitterer returned to work, she received a lengthy termination notice that included a violation of policy for taking the non-FMLA related cruise.



The district court dismissed Ms. Fitterer’s subsequent claims for FMLA interference. She had insufficient evidence to prove that she could not have worked at all during those two weeks and that her cruise was medically necessary for her migraines.

Tuesday, August 25, 2015

Management Entitled To Retaliation Protection



A Fourth Circuit Court of Appeals case recently looked at whether management employees are protected by anti-retaliation provisions in Title VII when they encourage discrimination claims. The response was “yes.”

Neil DeMasters was an Employee Assistance Program consultant for Carilion Behavioral Health. An employee came to him and described some outrageous conduct by the employee’s department manager (masturbating in front of him, asking for oral sex, and asking for the employee to display his genitals). Mr. DeMasters encouraged the employee to report the harassment, going so far as to help plan the report and facilitate the investigation. After the harasser was fired, the employee complained of retaliatory hostile treatment from his co-workers. Mr. DeMasters disagreed with the how the company handled the treatment and told company management his opinion. Ultimately, the employee filed an EEOC complaint. At the end of that matter, the company brought Mr. DeMasters in for failing to take the company’s side and leaving Carilion in a “compromised position.” He was fired for not performing in the best interests of the company.

Suing for retaliation after opposing an unlawful employment practice, Mr. DeMasters’ case was dismissed in the trial court. However, the Court of Appeals reversed. The trial court determined that Mr. DeMasters was not protected from retaliation because he was acting within the scope of his job duties, the “manager” rule. However, that rule was held not to apply in Title VII cases. Nothing in Title VII’s language suggests that it was intended to exclude a large group of employees from its anti-retaliation provisions.  This case is believed to be only the second Court of Appeals case to address this “manager” rule.

Wednesday, August 19, 2015

EEOC Suing UPS… Again



The new EEOC class action suit against the United Parcel Service (“UPS”) is for religious discrimination. The Equal Employment Opportunity Commission has asserted that UPS has refused to hire applicants and/or promote employees whose religious dress conflicted with uniform policy. UPS’s dress policy mandates that supervisors and employees who interact with the public must shave their beards. All male employees dealing with the public are also not allowed to grow their hair below their collar.


Bilal Abdullah, one of the two named plaintiffs in the case, alleged that he was told by a UPS supervisor “God would understand,” if he shaved his beard or that he could apply for a lower paying job to keep the beard. His beard was grown in accordance with his Muslim faith. The other named plaintiff, Muhammad Farhan has asserted that he was sent home on his first day of work because of his beard. He was never given the religious accommodation paperwork that he requested many times. The EEOC has argued that the appearance policy caused conflicts between an employee’s religious beliefs and a job at UPS.


UPS has issued a statement that it does not discriminate against its employees. “UPS respects religious differences and is confident in the legality of its employment practices. UPS is proud of the diversity of its workplace.”

Tuesday, August 18, 2015

Quick Investigation Protects Employer From Discrimination Suit



A Tennessee case highlights the advantages of a quick and thoughtful investigation.


Patricia Bazemore claimed that she had been harassed while employed by Performance Food Group, Inc. Specifically; Ms. Bazemore accused her co-worker Barry Pearson of sexually harassing her on two separate occasions. There were no witnesses to the harassment. (Although Ms. Bazemore did secretly record parts of the two incidents, she did not share that information with her employer.)  When Ms. Bazemore reported the harassment, the company promptly acted. First, Ms. Bazemore was asked to write the details of her allegations. Upon receipt of those allegations, Human Resources promptly interviewed both individuals separately. Mr. Pearson denied it. Although the company only had the conflicting accounts, it issued a final written warning to Mr. Pearson and instructed him to stop all contact with Ms. Bazemore. After Ms. Bazemore accidentally ran into him, she resigned.

Ultimately, Performance Food Group prevailed in its defense of the lawsuit because the court found it had investigated immediately and placed restrictions on the harasser. Performance acted appropriately based on the information that it had. It did not knowingly permit intolerable conditions. Moreover, the company’s training and written policies as preventative measures worked against Ms. Bazemore’s attempt at a constructive discharge claim.