Employment Law Issues

Employment Law Issues By: Kimberly A. Ross* Cremer, Kopon, Shaughnessy & Spina, LLC Chicago Sexual Harassment and Constructive Discharge U.S. Supreme Court Ruling Allows Affirmative Defense in Some Constructive Discharge Cases In Pa. State Police v. Suders, No. 03-95, 2004 U.S. LEXIS 4176, 2004 WL 1300153 (U.S. June 14, 2004), the Pennsylvania State Police (PSP) hired Nancy Suders as a communication officer. Her male supervisors subjected her to a continuous barrage of sexual harassment. Three months after her hire date, Suders informed the PSP s Equal Employment Opportunity (EEO) officer that she might need help; however, no action was taken. Two months later, Suders contacted the EEO officer to report she was being harassed and was afraid. Suders was told to file a complaint, but not how to obtain the necessary form. Two days later, Suders supervisors arrested her for theft of her own computer-skills exam papers. Suders had removed the papers after concluding the supervisors falsely reported she had repeatedly failed, when in fact the exams had never been forwarded for grading. Suders resigned and then sued the PSP, alleging she had been subjected to sexual harassment and constructively discharged. The district court granted the PSP s motion for summary judgment, but recognized that Suders testimony would permit a trier of fact to conclude her supervisors created a hostile work environment. However, the district court held the PSP was not vicariously liable for the supervisors conduct pursuant to the Faragher and Ellerth affirmative defense. The Third Circuit reversed and remanded, finding Suders had, in fact, stated a claim for constructive discharge due to a hostile work environment and there were genuine issues of material fact as to the effectiveness of the PSP s program to address sexual harassment claims. The Third Circuit determined that a constructive discharge, if proved, would constitute a tangible employment action, thus rendering an employer strictly liable and precluding the Faragher/Ellerth affirmative defense. The United States Supreme Court held that to establish constructive discharge, a plaintiff alleging sexual harassment must show the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may assert the Faragher/Ellerth affirmative defense unless the plaintiff quit in reasonable response to an adverse action officially changing her employment status or situation (e.g., a humiliating demotion, extreme cut in pay or transfer to a position in which she would face unbearable working conditions). The court noted that pursuant to Faragher/Ellerth, there are two categories of sexual harassment claims: (1) those alleging a tangible employment action, for which an employer may be held strictly liable; and (2) those asserting no tangible employment action, in which case an employer may assert the affirmative defense that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Page 1 of 7

The court found that Suders constructive discharge claim could be regarded as an aggravated case of sexual harassment or hostile work environment. Harassment intolerable enough to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct or official company acts. However, unlike an actual termination, which is always effected through a company act, a constructive discharge may or may not involve official action. The court held that when constructive discharge does not involve an official action, the extent to which the agency relationship aided the supervisor s misconduct is less certain, and that uncertainty justifies affording the employer a chance to establish that it should not be held vicariously liable through the Faragher/Ellerth affirmative defense. The court found that although the Third Circuit correctly ruled that the case presented genuine issues of material fact concerning Suders hostile work environment and constructive claims, it erred in declaring that the affirmative defense described in Faragher and Ellerth is never available in constructive discharge cases. The court determined that plaintiffs who allege no tangible employment action have the duty to mitigate harm, but the defendant bears the burden to allege and prove that the plaintiff failed in that regard. Consequently, the court vacated and remanded. Retaliation Causal Link Between Protected Activity and Employer s Actions Defeats Summary Judgment In Lang v. Ill. Dep t of Children & Family Servs., 361 F.3d 416 (7th Cir. 2004), DCFS promoted plaintiff Steven Lang from case manager to child protection investigator after five years of favorable performance reviews. Four months after his promotion, Lang, as union steward, filed a grievance claiming DCFS discriminated against African-Americans. Lang claimed that after complaining about discriminatory practices, he was subjected to continuing disciplinary charges and ultimately fired. In the same month Lang filed his grievance, he was reprimanded orally for failing to complete a case within 60 days. His supervisor also continually marked his timesheets with unauthorized absences even though Lang had been at work. In response to the actions taken against him, Lang filed a charge of race discrimination with the EEOC. In the two months after filing the charge, Lang s supervisor sent him over 30 memoranda and e-mails criticizing nearly every aspect of his work. Additionally, in the month after Lang filed the charge with the EEOC, he was called away to care for an uncle who was seriously ill. Lang could not reach his direct supervisor to inform her he would be out of the office all week. However, he did inform a labor relations liaison in the personnel department of his absence. Nonetheless, Lang s supervisor gave him six unauthorized absences and terminated him. Lang brought suit against DCFS, claiming he had been subjected to discriminatory practices in retaliation for his complaints. The Seventh Circuit vacated the summary judgment granted in favor of DCFS by the district court, finding Lang presented sufficient evidence of retaliation. The Seventh Circuit found Lang established a case of retaliation via the direct method. Under the direct method, Lang needed to show he engaged in statutorily protected activity, DCFS subjected him to an adverse employment action and the two events had a causal connection. The court noted that prior to filing a grievance on behalf of the African-American employees, Lang had an exemplary record with DCFS. It was within the same month that Lang was given the first two unauthorized absences of his career, both unfounded. Further, the court noted immediately after Lang filed his complaint with the EEOC, he began receiving negative reviews from his supervisor. The court found the timing of Lang s discipline extremely suspicious in light of these facts. The court also found Lang s evidence raised an inference that his supervisor set him up to fail by enforcing Page 2 of 7

department policies against him in an unreasonable manner after he filed the complaint with the EEOC. Moreover, the court found there were genuine issues that could not be resolved on summary judgment, such as whether an extremely negative annual performance review in June 2000 demonstrated Lang was not performing his job adequately or whether his supervisor was continuing a pattern of retaliation by holding him to unrealistic standards. The court determined that such questions presented enough circumstantial evidence of a causal link between Lang s protected activity and DCFS actions to defeat summary judgment under the direct method. Thus, the Seventh Circuit vacated and remanded the district court s findings. ADA Case Did Not Fit in Expense, Disability by Association or Distraction Categories In Larimer v. IBM Corp., No. 03-2256, 2004 U.S. App. LEXIS 10788, 2004 WL 1208928 (7th Cir. June 3, 2004), IBM hired Thomas Larimer as a salesman in August 2000. In May 2001, Larimer s wife, also an IBM employee, gave birth to twin daughters after only 29 weeks of pregnancy. The girls suffered a variety of serious medical conditions because of being premature. They were hospitalized for almost two months at a total expense of almost $200,000, all paid for by IBM s employee health plan. By the end of January 2003, the girls seemed normal and healthy, although they might develop serious physical or mental handicaps as they grow. Larimer was fired in August 2001, shortly after the girls came home from the hospital. Larimer alleged that IBM violated the Americans With Disabilities Act (ADA) by firing him because his daughters were disabled. The Seventh Circuit found that even if his daughters were disabled or regarded as disabled, Larimer s case failed. The court noted that Larimer was suing not on his daughters behalf but his own, under a provision of the ADA forbidding discrimination against a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association. 42 U.S.C. 12112 (b)(4). In a case of first impression, the Seventh Circuit found three types of situations within the intended scope of the ADA s association section. The court labeled the categories as expense, disability by association and distraction. Under expense, an employee suffers an adverse personnel action because a family member has a disability that is costly to the employer because the company s health plan covers the family member. The court provided two illustrations of disability by association. Under the first illustration, an employee s partner is infected with HIV and the employer fears the employee may also become infected. Under the second illustration, the employee has a blood relative who has a disabling ailment with a genetic component the employee is likely to develop as well. Under distraction the employee is somewhat inattentive at work because his or her spouse or family member requires attention, yet not so inattentive that he or she cannot perform to the employer s satisfaction or needs an accommodation. Having delineated the three categories of association, the Seventh Circuit then found that Larimer s case fit none of the categories. Specifically, Larimer s case did not fit into the expense category because there was no evidence that health benefits were in the budget of the unit of IBM that employed and discharged him. Further, there was no evidence that Larimer became distracted at work due to his wife s pregnancy or the birth and hospitalization of his daughters. The disability by Page 3 of 7

association category was irrelevant. Thus, the Seventh Circuit affirmed the district court s granting of summary judgment in favor of IBM. Plaintiff Could Not Perform Essential Functions of Job With or Without Accommodation In Ammons v. Aramark Uniform Servs., 368 F.3d 809 (7th Cir. 2004), Aramark, or its predecessor, employed Clyde Ammons for almost 40 years as a boiler engineer and lead mechanic at their Chicago laundry facility. On August 15, 1997, Ammons injured his knee and had surgery in October 1997. Ammons returned to light duty in November 1997, with restrictions on the amount of time he could spend climbing, bending, squatting, climbing stairs, lifting and using a ladder. Less than a month after his return to light duty, Ammons voluntarily took a leave of absence through February 14, 1998. When Ammons returned to work he was assigned to light duty again, and he took a second leave of absence about one month later. Ammons did not return to work. In April 1998, Ammons orthopedic surgeon concluded he was at maximum medical improvement and could not return to his normal duties at Aramark. In September 1998, Ammons met with a vocational rehabilitation counselor, who also concluded that he could not return to his normal duties at Aramark. However, the counselor concluded that Aramark could make accommodations for his condition. In January 1999, Ammons asked to return to work while still on medical leave. The general manager of the plant and a union steward met with Ammons to discuss the possibility of accommodations. Neither Ammons attorney nor his vocational rehabilitation counselor attended the meeting. During the meeting, Ammons identified specific tasks he could perform. Aramark rejected Ammons request to return to work on the basis that his surgeon s assessment of physical restrictions and the duties Ammons proposed were too limited and did not amount to a reasonable accommodation of his condition. Aramark further believed Ammons could not complete the essential functions of his job because he could not perform the maintenance and repair duties he previously performed. After 18 months on medical leave, Ammons was terminated pursuant to the collective bargaining agreement governing his employment. Ammons then filed suit alleging that his termination violated his rights under the ADA. Summary judgment was granted in favor of Aramark and Ammons appealed. Aramark did not contest Ammons was disabled within the meaning of the ADA. Rather, the question was whether Ammons could perform the essential functions of his job with or without reasonable accommodations. The Seventh Circuit noted the factors to be taken into consideration when determining whether a job duty constitutes an essential function include the job description, the employer s opinion, the amount of time spent performing the function, the consequences of not requiring the individual to perform the duty and past and current work experiences. The essential functions of Ammons job included repair and maintenance of all equipment and machinery in the plant. He typically spent about one-half of his day tending to the plant s boiler, and the other half involved maintenance and repair. His job required heavy exertion, climbing, walking, kneeling and lifting in excess of 50 pounds. The Seventh Circuit agreed with the district court that Ammons could not perform the essential functions of his job with or without reasonable accommodation due to his injury. Further, the court found the duties Ammons suggested he could perform were not reasonable accommodations. Although Ammons suggested accommodations of tending to the boiler with assistance and repairing sewing machines were reasonable, those tasks accounted for only half of the workday. The court determined that Ammons suggestion that he could spend the remainder of the day as a maintenance troubleshooter would amount to an entirely new position, which Aramark did not previously maintain Page 4 of 7

or plan on creating. It was, therefore, not an accommodation that would permit Ammons to perform the essential functions of his job. Lastly, the court rejected Ammons argument that Aramark failed to engage in the required interactive process to discuss reasonable accommodations for his disability. Ammons claimed Aramark failed to agree to an interactive process because it did not consent to a meeting that included his vocational rehabilitation counselor and his attorney. The court found the duty to engage in an interactive process did not mandate a meeting with an employee s attorney or vocational counselor. Aramark satisfied its duty to discuss reasonable accommodations by meeting face-to-face with Ammons. ADA/FMLA Plaintiff Failed to Refute Employer s Legitimate Reasons for Suspension and Termination In Buie v. Quad/Graphics, Inc., 366 F.3d 496 (7th Cir. 2004), the plaintiff was an African- American with AIDS. From November 1997 through December 1, 1999, he worked in the finishing department at Quad/Graphics. His supervisors warned him about frequent absenteeism three times between March 1998 and September 9, 1999. The plaintiff s supervisor warned him that if he continued to have attendance problems, his employment may be terminated. Nonetheless, the plaintiff was again absent on September 24 and October 10, 1999. On October 15, 1999, the plaintiff called his supervisor after his shift had already begun and said that he would not be reporting to work because he was sick. The plaintiff s supervisor told him that his job was in jeopardy. The plaintiff responded that he had AIDS and his absenteeism was because of his illness. This was the first time Quad/Graphics learned of the plaintiff s condition. The plaintiff s supervisor then told him he should not return to work. Several days later, the plaintiff met with a corporate services manager who told him he could apply for Family and Medical Leave Act (FMLA) leave for some of the absences when he had not called in sick. She further told him not to report to work until he had completed the FMLA application and resolved his attendance issues. Only after the plaintiff returned did he learn Quad/Graphics considered his leave a disciplinary suspension for excessive absenteeism. After the plaintiff returned to work he was told many of his absences were considered excused and that short-term disability benefits would be paid. However, 14 absences could not be excused. The plaintiff was given a last chance agreement and the option to sign it or be fired. The plaintiff signed the agreement, which stated he could be fired for any violation of the employee services manual. Shortly after returning to work, the plaintiff had a confrontation with a superior regarding his falling behind in work, and the superior gave the plaintiff a written warning. The plaintiff then threatened an employee who had confirmed the superior s version of events, and was discharged as a result of his actions. The plaintiff brought suit claiming Quad/Graphics engaged in FMLA retaliation and also discriminated against him based on his race, sex and disability. The district court granted summary judgment in Quad/Graphics favor. On appeal, the plaintiff abandoned his claims of race and sex discrimination, but maintained he was entitled to reach a jury on his disability and FMLA claims. The Seventh Circuit found the plaintiff was an individual with a disability under the ADA. However, under the direct method, the court found the plaintiff did not provide any evidence to support a claim that Quad/Graphics violated the ADA by first suspending him and then discharging him because he had AIDS. Although the plaintiff attempted to argue temporal proximity between his announcement he had AIDS and the adverse employment actions taken against him, the court pointed Page 5 of 7

out he had been warned prior to announcing he had AIDS that his job was in jeopardy. Despite this warning, he continued to miss work without explanation, had an aggressive encounter with a superior and threatened a co-worker. The court determined no reasonable jury could infer the timing of the plaintiff s announcing he had AIDS and his firing was because of his disability. The Seventh Circuit also found when proceeding under the indirect method, the plaintiff failed to refute Quad/Graphics nondiscriminatory reasons for suspending and then firing him. Although the plaintiff argued Quad/Graphics did not fire or suspend other employees who did not have AIDS, but who did have problems with attendance and threats, the court found the plaintiff put forth no evidence those employees were disciplined by any of the same people who disciplined him and therefore the discipline those employees received or did not receive shed no light on the decision to terminate the plaintiff. As to the plaintiff s FMLA claim, the plaintiff could proceed under either the direct or indirect method. The court found no direct evidence to support his claim that the proximity between his announcing he had AIDS, Quad/Graphics realization that he would request leave, and his suspension and firing would allow a jury to infer retaliation. The court determined the plaintiff s suspicious timing arguments failed for the same reason he failed to prove ADA discrimination. Further, under the indirect method, the plaintiff also failed to rebut the nondiscriminatory justifications Quad/Graphics offered for his suspension and discharge. Therefore, the court affirmed the lower court s granting of summary judgment. Race/Retaliation Seventh Circuit Reinstates JuryVerdict in Favor of Plaintiffs In Tart v. Ill. Power Co., 366 F.3d 461 (7th Cir. 2004), Lamarce Tart and David Curtis prevailed before a jury on their claims of race-based discrimination and retaliation. However, the district court granted the defendants motion for judgment as a matter of law and vacated the jury s verdict. The plaintiffs appealed. Curtis and Tart are African-Americans who worked as gas servicemen for Illinois Power Company for over 15 years. During their employment, both plaintiffs received positive performance reviews. However, both plaintiffs began to experience problems when the defendant, Rauly Law, a Caucasian, began working as the plant manager. After Law came on board, Curtis approached him and asked him to talk with a Caucasian coworker who was harassing and threatening him. Instead, Law told Curtis he was keeping a close eye on him and then began to call into question the validity of his timesheets. Law also failed to intervene in a verbal altercation initiated by the co-worker against Curtis. The same Caucasian co-worker also harassed Tart. Tart asked Law to intervene but Law declined. As a result of Law s failure to take any action, Curtis called the human resources department and informed the office that Law was treating Tart and him with bias. Human resources promised to look into the situation. Shortly thereafter, Law called the plant together and informed the workers that someone had called the EEOC. Cutis admitted to calling human resources. Law then met with Curtis, Tart, the offending co-worker and a union representative. He informed Curtis that to prevent employee services from coming down to the plant, Curtis would have to say he made a mistake and that employee services were not needed. Law told Curtis that if human resources did come down, someone would be without a job. Curtis assumed Law meant Curtis would be fired. Although human resources did not come to the plant, Law later suspended Curtis and Tart and reassigned them to positions as ditch diggers. Curtis was assigned to work under a less experienced Page 6 of 7

employee whom Curtis trained. Both Curtis and Tart informed human resources they were being discriminated against. Human resources performed an investigation and agreed that the plaintiffs were being discriminated and retaliated against. Human resources ordered Law to return Curtis and Tart to their former positions. However, Curtis never returned to the shop and finally utilized his seniority to bid out to another position. Law did not return Tart to his former position for another five months after being required to do so. The Seventh Circuit disagreed with the district court s finding the plaintiffs did not suffer adverse employment actions because the reassignments were lateral moves and because the plaintiffs retained their salaries, titles and benefits. The court noted the reassignments required far less skill level and significantly harsher working conditions than the plaintiffs prior positions. The court further found the reassignment subjected the plaintiffs to both a humiliating and degrading environment. Additionally, the court found ample evidence of retaliation. It disagreed with the district court s finding that the initial call to human resources could not be protected activity because the call was not understood to be race related. Rather, the court found the jury reasonably concluded the defendants understood the call to be race related when Law referenced a call placed to the EEOC. Further, the court found the jury was free to find the reassignments as retaliation for the second call to human resources, even though the timing at first glance appeared off. Consequently, the Seventh Circuit reversed the district court s judgment and remanded with direction to reinstate the jury verdict. ABOUT THE AUTHOR: Kimberly A. Ross is a partner with the law firm of Cremer, Kopon, Shaughnessy & Spina, LLC. She received her J.D. from DePaul University College of Law and her B.A. from the University of Michigan. Her practice areas include employment law and general tort litigation. Ms. Ross is an Assistant Editor of the IDC Quarterly. In addition to IDC, she is a member of the Defense Research Institute, Decalogue Society of Lawyers and the Women s Bar Association. * The author acknowledges the assistance of Jennifer L. Colvin, an associate with Cremer, Kopon, Shaughnessy & Spina, LLC, in the preparation of this article. Page 7 of 7