Author Archive | Sunshine Thomas

Employer Prevails On Summary Judgment After Firing An Employee On The Day The Employee Returned From Family Medical Leave


In a recent case, Travers v. Cellco Partnership (Middle Dist. of TN), an employer fired an employee on the day she returned from FMLA leave. Not surprisingly, the employee sued for FMLA retaliation. The employer prevailed on summary judgment after the evidence demonstrated that the employee was warned and disciplined for performance issues before she took FMLA leave and that the timing of the discharge was based on the employer learning of her final misconduct while she was on FMLA leave. The employer was ultimately able to prevail on summary judgment because it was able to demonstrate that the discharge was not motivated by the FMLA leave. The takeaway from this case is a reminder that retaliation is retaliation only when the adverse employment action is motivated by the employee engaging in a protected activity. It is also a reminder that an employee’s participation in a protected activity (such as taking FMLA leave) does not get the employee a free pass for policy violations. However, it is important for employers to remember that temporal proximity between a protected activity and an adverse employment action is a factor taken into consideration by the courts when reviewing a retaliation claim. In addition, although the employer prevailed in this case, it did so after incurring significant litigation costs.

Can An Employer Be Liable For Sexual Harassment Conducted By A Client Against An Employee?

EEOCThe short answer to this question is yes. In fact, the EEOC announced in late October, 2013 that an employer is paying $30,000.00 to settle such a sexual harassment suit. In that suit, a female receptionist was allegedly sexually harassed by a male client at her place of employment.

That employee then allegedly complained to her supervisor about the sexual harassment, but no action was taken by the employer to stop the alleged harassment. The EEOC filed suit against the employer on behalf of the employee.

The lesson to be taken from this is a reminder that an employer can be liable for sexual harassment committed by a non-employee such as a client or a vendor if the employer knew about the conduct and failed to take appropriate corrective action.

Can Anxiety Caused by Potential Job Loss Constitute a Disability Under the ADA?


Since the passage of the amendments to the Americans with Disabilities Act (“ADA”), a common theme of discussion has been the degree to which the burden for demonstrating a disability has been decreased.  With these amendments, it is much easier for individuals to demonstrate that they suffer from a disability as defined by the ADA. However, a new case issued by the United States District Court for the Southern Division of South Dakota adds further fuel to this discussion by confirming how much easier it is to demonstrate a disability under the amendments to the ADA. In this case (Huiner v. Arlington School District, 11-4172-KES, Sept. 26, 2013) the employee, a teacher with the Arlington School District, was advised of concerns with her job performance starting in or about September 2010. Due to these concerns, Plaintiff was placed on a plan of assistance, which was implemented on or about December 20, 2012. This plan of assistance set out specific areas where improvement was expected and established a deadline of March 1, 2011 to achieve such improvement.

Prior thereto, on or about December 17, 2012, Plaintiff had met with her physician’s assistant regarding anxiety. At that time, Plaintiff was diagnosed with anxiety and depression likely stemming from her concerns about possibly getting fired. It was alleged that Plaintiff was unable to maintain her nutritional needs, was experiencing difficulty caring for her children and had sleep pattern deficits. Plaintiff lost over 30 lbs. between September 7, 2010 and June 29, 2011. In February, 2011, Plaintiff requested a number of accommodations from her employer. These accommodations were designed to ease Plaintiff’s anxiety and stress in the work place and included accommodations such as limiting the observations of her job performance to one 50 minute class per week, allowing her to play soothing music while working, planning for and allowing uninterrupted work time, providing coverage if she were to become overwhelmed with stress, and encouraging her to walk away from stressful confrontations with supervisors. Prior to this initial request for accommodations, there was some back and forth between the employer and Plaintiff regarding accommodations. However, ultimately, her employment was terminated when it was determined that she had not satisfactorily improved her job performance.

The Court determined that Plaintiff had demonstrated that she was suffering from a disability under the ADA. In so holding, the Court noted that her anxiety and associated panic attacks limited her ability to maintain her nutritional needs, care for her children, work and sleep. The Court also noted that Plaintiff’s allegations corresponded with her medical records and that her difficulty maintaining her nutritional needs was evidenced by her significant weight loss. On this basis, the Court confirmed that she had been able to make a prima facie showing that her anxiety constituted a disability under the ADA. The Court further noted that because she was disabled under the ADA, it was necessary for the employer to engage in the interactive process to determine the appropriate reasonable accommodation. In so ruling, the Court noted that Plaintiff’s simple act of requesting an accommodation required the employer to initiate the interactive process even if the accommodations requested by her were unreasonable and did not fall within the parameters of the ADA. Additionally, the Court also noted that there was a question of material fact as to whether the District had participated in good faith in the interactive ADA process when the decision to recommend termination was made just 14 days after the employer’s first participation in the interactive process.

Although this case is not in the Third Circuit and, therefore, is not controlling in the Third Circuit, this case is illustrative of the lowered burden established by the amendments to the ADA. It also presents an interesting fact pattern which could potentially be duplicated by other employees. Accordingly, we caution employers to be aware of this fact pattern as it is not implausible that other employees could  allege a disability based on stressors from within the workplace.

“Liking” a Facebook Page and the First Amendment

likes_graphicIs “Liking” a Facebook page protected speech under the First Amendment  in the public employment context?

Recently, the Fourth Circuit Court of Appeals in Bland v. Roberts, 12-1671 (4th Cir., September 18, 2013), overturned a District Court decision which held that public employees’ Facebook “Likes” were not protected speech under the First Amendment. In this case, six city employees were terminated from their employment for supporting an opposing candidate in an election. One method used by these employees to show their support for the candidate was by “liking” his Facebook page. The District Court held that this was not protected by the First Amendment and dismissed the Plaintiffs’ claims. In reversing the District Court, the Fourth Circuit noted that other courts have granted First Amendment protection to posts written on Facebook. Here, this was simply a click of the mouse indicating that the user liked a page or a post. Nevertheless, the Fourth Circuit held that there is no constitutional significance between a single mouse click and the typing of a post. The court also went on to describe the action as an internet equivalent of displaying a political sign in your front yard. On this basis, the Fourth Circuit held that a Facebook “like” did constitute speech protected by the First Amendment.

We note, however, that this decision only applies to those states within the Fourth Circuit.  On this basis, this holding is not controlling in Pennsylvania.  However, it is quite possible that other circuits may adopt the reasoning of the Fourth Circuit.  Accordingly, we caution public employers to be careful when taking an adverse employment action based on their employees’ social media activities including, but not limited to, “liking” a Facebook post or page.

Employers Can Enforce Their Standard Employee Call-Off Procedure For Employ ON FMLA LEAVE

fmlaA recent case from the Sixth Circuit confirms in Srouder v. White that an employer may condition FMLA leave on the employee properly following the employer’s standard call-off  procedure absent unusual circumstances.  The Court further held that if the employee fails to follow the employer’s usual call off procedure, the employer may delay or deny  FMLA leave.  The Sixth Circuit decision further confirms that this requirement can still be applied even when the employee has previously discussed the FMLA leave with his or her employer.

However, this decision presumes that the employee handbook provides a specific procedure for call-outs.  It also presumes that the employer equally applies the call-outs/attendance policy evenly to both FMLA and non-FMLA leaves.  On this basis, we recommend that employers set forth a specific procedure for call-outs in the employee handbook and enforce it consistently and regularly.  In addition, we recommend that employers advise employees via the employee handbook and possibly also when they request and receive approval for FMLA leave that they are required to follow the standard call out procedure.  Then if an employee who is on FMLA leave fails to call off as required by the policy, the employee’s time off can be denied FMLA status and protection.

The employer should confirm first, however, that there were not any unusual circumstances, which prevented the employee from calling out per the normal procedure such as an emergency hospitalization.

THE accommodation or AN accommodation?

accomodationA Third Circuit decision  has been issued which confirms that an employer is only required to offer an ADA-qualified employee a reasonable accommodation. An employer is not required to provide the employee with the accommodation that the employee requests or prefers. In this particular case, the employee suffered from asthma which affected her ability to work with certain chemicals in her job. Upon receiving a request for an accommodation under the ADA, the employer offered the employee the option of wearing a full face respirator while working. The employee was subsequently fitted with the respirator, but she only used it a few times because it made her claustrophobic and caused her to suffer a panic attack.  Subsequently, the employer offered her a partial face respirator, which she refused to try.  Instead, the employee requested transfers to other facilities where she would not need to work around the chemical that aggravated her asthma.

Later, the employee filed suit against the employer alleging, among other things, that the employer had failed to accommodate her under the ADA.  The Third Circuit Court ultimately found that the employee was not a “qualified individual” under the ADA because she refused to try the partial face respirator made available to her.  The Court found that the offer to provide her with a partial face respirator was a reasonable accommodation.  In support of this holding, the Court noted that the record included testimony that the partial face respirator could have alleviated the employee’s claustrophobia problems while still protecting her from the effects of exposure to the chemicals.  The Court further found that there was no requirement to provide the employee with the accommodation specifically requested by her, but rather the employer only needed to provide a reasonable accommodation.

On this basis, we remind employers that although they are required to engage in the interactive process and to provide reasonable accommodations to ADA qualified employees, they are not necessarily obligated to grant the employee the requested accommodation when there is an alternative reasonable accommodation available.

Have you heard the news that the AMA has declared obesity a disease?

In light of this new determination which was issued in June, 2013, we caution employers to be cautious as it is possible that this could trigger ADA protections should an employee’s obesity limit the employee’s ability to perform a major life activity. Whether it will be do so, it not entirely certain at this time as there is contradictory case law on the issue and as the AMA determination is quite recent. There was a decision from Louisiana, pre-dating the AMA’s determination, which held that it is possible for morbid obesity to constitute a disability under the ADA when it affects an individual’s ability to perform one or more major life activities.

On the other hand, there is a more recent decision from West Virginia finding that an employee was not disabled as the employee’s obesity did not limit a major life activity. Rather, the employee had admitted that he was not limited in performing regular activities. Despite this contradiction, I would suggest that employers err on the side of caution and engage in the ADA process with any employees who request a reasonable accommodation due to morbid obesity.

Update: Irresistible Worker Termination Decision Upheld on Reconsideration

As you may recall, I bloggupdateed a few months ago about an employee who was fired from her position as a dental assistant due to concerns about a relationship potentially developing between that employee and her employer. In this case, the employer’s wife was concerned that a sexual relationship was going to develop between the employer and the employee based on a sexual attraction and lewd texts. Due to this concern, the wife encouraged her husband (the employer) to discharge the employee.  At the time of my original blogging, the Iowa Supreme Court had issued a unanimous decision holding that there was no sex discrimination when a male employer terminates a female employee because there are concerns about the nature of the relationship between the parties. Following that decision, the Iowa Supreme Court granted re-consideration. The new decision has now been issued. Although the new decision is no longer unanimous, it continues to hold that there was no sex discrimination under the facts presented to it. The decision is based on evidence which supported a finding that the adverse employment action was based on the relationship between the parties rather than the employee’s gender. Indeed, the employee was replaced by another female. This decision confirms that when an adverse employment action is taken by an employer due to a consensual relationship between the employer and the employee, it is not gender discrimination. This time around, however, the Court cautions that had the employee alleged sexual harassment, their decision may have been different.

Recent U.S. Supreme Court Decision Affects the Standard for Retaliation Claims


In University of Texas Southwestern Medical Center v. Nassar, the U.S. Supreme Court has recently held that Title VII retaliation claims must be proven in accordance with a but-for causation standard. This but-for standard is different from the standard for status-based discrimination claims which requires an employee to only demonstrate that discrimination was a motive (as opposed to the motive). This but-for standard is a more stringent standard, which may be of benefit to employers in defending against retaliation claims.

Recent U.S. Supreme Court Decision Sheds Some Light on who is a Supervisor under Title VII

titleviiAs we all know, an employer’s potential liability under Title VII hinges, in part, on whether the alleged harasser is a co-worker or supervisor of the alleged victim. However, in some cases, the distinction between co-worker and supervisor can be unclear.  Many presumed that if the alleged harasser oversaw the work of the alleged victim then that employee must be the alleged victim’s supervisor. The U.S. Supreme Court in Vance v. Ball has held that an employee is a supervisor for purposes of vicarious liability under Title VII when that employee is empowered by the employer to take tangible employment actions against the alleged victim. Tangible employment actions include hiring, firing, promotion, reassignment, or another decision/action causing a significant effect on benefits or employment status.