Employment Law Alerts

Delaware
By Keri L. Morris, Esq. (302.552.4372 or klmorris@mdwcg.com)

It seems as though there have been a significant amount of pro se employment discrimination complaint filings in the United States District Court in and for Delaware. A review of the decision from the last six months are decisions on motions to dismiss rather than any substantive decisions.
Kes Tani v. FPL/Next Era Energy (FPL Capital Group, Inc.), et al.

Tani filed a complaint regarding his alleged employment contract and his termination from employment. He filed suit against three separate defendants. The complaint was over 50 pages and made several allegations ranging from employment discrimination to fraud. The plaintiff filed a motion for default against one of the defendants for its failure to respond to the complaint. The remaining defendants filed motions to dismiss the complaint, which were granted. The plaintiff was given additional time to file an amended complaint. The court held that because the pro se plaintiff seemingly named the wrong corporate defendant in his employment discrimination case, the court, in its discretion under Fed. R. Civ. P. 15(a), agreed to allow the plaintiff to amend the complaint to name the correct corporate defendant in order to serve the interests of justice. In this case, the plaintiff sent a copy of the complaint via certified mail to a company that he believed was the correct defendant, however, the company named in the suit did not exist. It seems that the courts will continue to be lenient with pro se plaintiffs, and employers should be cognizant of this if and when they receive a complaint.

Federal
By Lee C. Durivage, Esq. (215.575.2584 or lcdurivage@mdwcg.com)

Plaintiff's FMLA inference claim failed where she asserted that she was improperly placed on FMLA leave.
Figueroa v. Merritt Hospitality, LLC, 2011 U.S. Dist. LEXIS 107465 (E.D. Pa. Sept. 21, 2011)

The plaintiff filed a lawsuit against her former employer alleging, among other things, that it interfered with her rights under the FMLA and retaliated against her. After the employer filed a motion to dismiss, the plaintiff abandoned her retaliation claim pursuant to the FMLA. The court, however, determined that the plaintiff's FMLA interference claim failed as a matter of law. In so holding, the court noted that plaintiff's amended complaint averred that she did not actually need FMLA at the time and that she was only alerting her employer to the fact that she may need some leave in the future. Specifically, the court noted that the plaintiff could not successfully plead that she was entitled to FMLA leave, which was required under the statute. Indeed, the court stated that "[i]n order to be eligible for FMLA leave due to a serious health condition, an employee must have 'a serious health condition that makes the employee unable to perform the functions of the position of such employee'" and by "pleading that she was fully capable of working at the time she was placed on alleged involuntary leave, she essentially admitted that she was not at that time entitled to FMLA leave."

District Court holds that a written disciplinary consultation was not an adverse employment action to support a claim pursuant to Title VII.
Harris v. Harley-Davidson Motor Co. Operations, Inc., 2011 U.S. Dist. LEXIS 137020 (M.D. Pa. Nov. 30, 2011)

The plaintiff filed her lawsuit alleging that she was discriminated against on the basis of her race and gender and that a co-worker was sexually harassing her. In rejecting the plaintiff's claims pursuant to the Title VII, the court first noted that the claimant did not suffer an adverse employment action, which is required to demonstrate a prima facie case of race and/or gender discrimination. In particular, the court reasoned that a written disciplinary consultation was not an adverse employment action because it did not result in a "demotion or denial of a promotion or pay raise, change in her work schedule or hours, or reassignment to a different position or location in the workplace." In so holding, the court rejected the plaintiff's argument that a record of the consultation was permanently placed in her personnel file, noting that there was no evidence that the consultation materially changed the terms or conditions of her employment. The court, likewise, found that the plaintiff's claims of a hostile work environment-which were primarily premised on the fact that a co-worker stared at her on four occasions and used the water cooler closest to her on two other occasions-failed because the actions were not severe or pervasive to defeat the employer's motion for summary judgment.

District Court dismisses nurse's FMLA and disability discrimination claims when she was terminated eleven days after her return to work following a medical leave.
Estate of Nancy Murray v. UHS of Fairmount, Inc., 2011 U.S. Dist. LEXIS 130199 (E.D. Pa. Nov. 10, 2011)

In Estate of Nancy Murray, the plaintiff filed a lawsuit against her former employer following her termination as a staff nurse. Prior to her termination, the plaintiff took two leaves of absence for depression, including a leave of absence eleven days prior to her termination. However, upon her return to work, the plaintiff made two narcotics mistakes in violation of her employer's policies. First, after a patient refused to take the mediation that was prescribed, the plaintiff wasted the mediation without securing a witness signature. Second, the plaintiff signed for 25 doses of medication when the pharmacy provided her with 23 doses of medication. The plaintiff also failed to inform the employer of the two mistakes. Based upon those narcotics mistakes, her employment was terminated. Following her termination, the plaintiff filed a lawsuit, alleging she was discriminated and retaliated against on the basis of her disability (depression) and terminated in retaliation for taking FMLA leave. The employer first argued that the plaintiff was not disabled under the ADA because, among other things, her depression was a transitory and/or temporary impairment. The court, however, rejected this argument, noting that the EEOC has adopted regulations which provide that "effects of an impairment lasting or expected to last fewer than six months can be substantially limiting" and the plaintiff's depression, therefore, may constitute a disability despite the fact that she took leave for only a short period of time. The court, however, noted that the plaintiff could not sustain her burden of demonstrating that her termination was a pretext for discrimination. In particular, the court found that while there was a dispute as to whether the plaintiff was permitted to "explain her [narcotics] errors," it did not make the "termination for the narcotics errors themselves and for failure to report the errors implausible or so plainly wrong that they could not have been the real reasons for termination."

Pennsylvania Commonwealth Court upholds Pennsylvania Human Relations Commission's determination that a personal care facility discharged patient because she had HIV and awarded counsel fees for a frivolous appeal.
Canal Side Care Manor, LLC v. Pennsylvania Human Relations Commission, 2011 Pa. Commw. LEXIS 531 (Pa. Commw. Oct. 20, 2011)

The Commonwealth Court reviewed a decision from the Pennsylvania Human Relations Commission, which found that the personal care facility violated the Pennsylvania Human Relations Act by denying a resident a place in the facility because she had HIV. Specifically, the patient was transferred to the facility, and the prior facility did not disclose that the patient had HIV and also did not disclose the patient's incontinence problems. Upon arrival to the facility, the patience had several incidents of incontinence, which led to the discovery that the patient had HIV. Following a "heated" exchange between the facility and the patient's sister, the patient was removed from the facility. As a result and after a public hearing, the Commission determined that the facility violated the Pennsylvania Human Relations Act by forcing the patient to leave the facility because of her HIV condition. On appeal, the facility argued (as it did before the Commission) that the patient was removed because of the extent of her incontinence issues and she would not have been admitted in the first place if those issues had been disclosed to the facility. The court, however, determined that the argument ignored the fact that the Commission had previously made the credibility determinations against the facility. As a result, there was no basis to overturn the Commission's decision. Moreover, due to the fact that the facility premised the appeal "solely on facts contrary to those found by the trier of fact," the court found the appeal frivolous and awarded counsel fees and delay damages.

New Jersey
By Lawrence B. Berg, Esq. (856.414.6031 or lbberg@mdwcg.com)

Contract provision may validly shorten CEPA statute of limitations period.
Smith v. TA Operating, LLC, Docket No. 10-2563 (U.S.D.C., Aug. 19, 2011)

The New Jersey Conscientious Employee Protection Act ("CEPA") contains a statutory one-year statute of limitations which generally begins to run from the date of the retaliatory adverse employment action. The job application completed by the plaintiff provided for a six-month statute of limitations on all claims relating to the employment and a waiver of any rights to the contrary. The court concluded that the contractual limitation on the statute of limitations period was permissible and that the six-month period was reasonable. Nevertheless, the court refused to uphold the limitation since it concluded that, to be effective, the provision needed to be clear and unambiguous with regard to its scope and application, including its applicability to CEPA claims.

Adverse unemployment finding may preclude summary dismissal of NJLAD claim.
Gibbs v. Caswell-Massey, Docket No. A-2996-10T4 (App. Div., Oct. 20, 2011)

Following the plaintiff's termination, she applied for unemployment benefits, and the employer contested her entitlement based upon the argument that she had been discharged for misconduct. The appeal tribunal found for the plaintiff and concluded that no disqualification existed. The plaintiff subsequently filed suit alleging that her termination was a violation of the NJLAD. In reversing the trial court's decision and in denying the defendant's motion for summary judgment, the Appellate Court concluded that a fact issue existed that required resolution by a jury. In reaching this decision, the court noted that its decision was fortified by the appeals tribunal finding which it deemed to be relevant but not conclusive.

NJLAD Public Accommodation protection does not extend to a claim of harassment or a hostile environment when the good/service is actually provided.
McMahon v. UMDNJ, Docket No. 11-2306 (U.S.D.C., Oct. 26, 2011)

Following the plaintiff's dismissal from UMDNJ, the plaintiff filed suit alleging public accommodation discrimination pursuant to N.J.S.A. 10:5-12(l) and alleging harassment while he was a student. In dismissing this claim, Judge Chesler held that the "goods and services" section of the LAD applied to the refusal to provide services but not to harassment or the creation of a hostile environment.

Plaintiff alleging disability discrimination and a failure to accommodate maintains the burden of showing the ability to perform the essential functions of the job with or without accommodation. The employer is not obligated to "bump" another employee to create acceptable position.
Cattuna v. Sara Lee Corporation, Docket No. A-0603-09T2 (App. Div., Aug. 27, 2010)

The plaintiff worked as a salesperson, and his job required frequent travel. The plaintiff alleged that, due to the onset of panic attacks, he was unable to travel over bridges or through tunnels. The only territory which could meet his limitations was already serviced by another salesperson. In affirming the dismissal of the claim, the Appellate Division concluded that "reasonable accommodation" did not require bumping another employee from a position that may fit a plaintiff's needs/restrictions.