TOV.WrongfulTermination&Discrimination

Court upholds dismissal of cardiologist's WPA claim that employer violated Federal law

Cardiologist Ronald VanderLaan expressed concern to his partners at Michigan Medical, PC, that the firm was violating federal law by billing for pacemaker work done by vendors without MMPC supervision or involvement. The MMPC Board ordered VanderLaan to see a psychiatrist and undergo a drug test, and suspended his salary.  VanderLaan took his concerns to the U.S. Inspector General and refused to undergo the drug-testing and psychiatric evaluation that his partners were demanding he complete within 30 days.  His employment was then terminated.  VanderLaan's partners claimed that their actions were motivated by the unrelated fact that he was acting erratically, was hostile to co-workers, and had misbehaved at office parties. VanderLaan then filed suit under the WPA. 

The Court of Appeals upheld the dismissal of his Whistleblower Protection Act claim because he had no proof, beyond the timing of his dismissal, corroborating his claim that he was discharged because of his pacemaker concerns and federal report. In a typical Kirsten Kelly opinion, the Court found it "inexplicable" that VanderLaan refused to undergo drug and psychiatric examination at his partners' demand. One wonders how a judge would react if the other judges on the Court of Appeals suspended his or her salary and demanded a psychiatric evaluation and drug test within 30 days.

Sixth Circuit decides rare case addressing Fair Labor Standards Act

John Orton sued Johnny's LUnch Franchise and Anthony J. Calamunci, LLC, arguing that after the Defendant struggled to make payroll, he worked for several months without pay before being laid off.  His case was initially dismissed by Judge Rosen in the Eastern District of Michigan, but the Sixth Circuit reevaluated and reinstated the claim.

Woman's age discrimination claim against Mid-Michigan Health is summarily dismissed

Sandra Hermann was the vice president of corporate planning for Mid-Michigan Health. The Court held that she hadn't presented enough evidence of discrimination to take her claim to the jury.  She relied on a supervisor's presentation outline that stressed an "aging workforce" and "the need to bring in younger employees..."  She also pointed to the supervisor's suggestion on the day she was terminated that she write a statement suggesting that she was "retiring to go home and play with her grandchildren." 

In terms of indirect evidence, she pointed to the fact that she was replaced by a younger employee, however, the Court ruled that there wasn't a complete coincidence of duties and title, suggesting that the Plaintiff's position was absorbed by three different employees. The Court held that in total the Plaintiff's proofs were not adequate to create a question of fact about a discriminatory animus motivating her employer.

Chrylser work's WPA claim dismissed despite engagement in protected activity

Lawrence S. King worked as one of three wastewater treastment operators at the Chrysler Detroit Axle Plant.  He filed suit arguing that he was discharged because he reported to City authorities the overflow of contaminated water from the plant. The trial judge dismissed this claim, holding that King's activities were not "protected activity" within the definition in the Whistleblower Protection Act.  The appellate court overturned this holding, noting that an overflow is a violation of city ordinance, making King's actions the report of a "violation of the law." 

Employee must sue a second time to recover sick pay under prior settlement agreement

Deborah Omokehinde settled her claim with the Detroit Board of Education under a release and agreement that the Board would "restore her sick days, personal days, vacation days, and seniority..."  She was forced to sue the following year, claiming that the Board had reneged on the agreement and failed to pay sick days, make a retirement contribution for her, or authorize her to receive a pension.  The trial judge held that these duties were implicitly included in the settlement agreement and awarded the plaintiff summary disposition.  On appeal, the Court reversed, holding that inclusion of these related pension rights must be supported by further factual development and that Omokehinde must also prove that the failure to receive sick pay was not a result of her own failure to file medical support for the claim.

Employee's race discrimination claim dismissed; FMLA claim needs further development

In Romans v. Mich Dep't of Human Serv, the plaintiff was dismissed from the WJ Maxey Boys Training Center and filed a wrongful discharge suit.  He claimed that he was the victim of racial discrimination and that he was fired, in part, for exercising rights under the Family Medical Leave Act.

With regard to the former claim, he cited the historical attempt to maintain a staff that mirrored the correction center population, i.e., 80% black, as proof that he was mis-treated because he was white.  The Court noted that race appeared to play no role in the disciplinary actions taken against Romans and that there was ample foundation for his supervisors' actions.  With regard to the FMLA claim, however, the Court sent the case back for further development.

The apellate judges pointed out that Romans insisted on leaving, rather than pulling a double shift, because he had been informed of his mother's hospitalization and potentially her impending death.  Romans claimed that he needed to attend to his mother's needs despite the fact that his sister was already present at the hospital.  The lower court had suggested that the sister's presence obviated any FMLA basis for refusing to cover the back-to-back shift when a replacement did not show up:  on appeal the higher court held that Romans had raised a valid FMLA claim despite the sister's presence at the hospital.

Sixth Circuit enforces NLRB ruling granting back pay to employee fired for union activity

the NLRB sued the Jackson Hospital Corporation to force the Hospital to pay back-pay to eight employees fired because of their support for a union.  Ultlimately, the claims were paid with the exception of Melissa Turner whom the Hospital continued to resist paying.  On January 31 of 2012, the unanimous court ruled that the NLRB order should be enforced and granted Turner back pay.  It concluded that the Hopital's excuses for failing to re-hire the radiology tech were not supported by competent evidence.

Bidder cannot utilize Elliott-Larson Civil Rights Act as basis for suit alleging gender discrimination

The Michigan Court of Appeals held this month that Brenda Geiling could not maintain a gender discrimination claim against Dow Corning and Hemlock Semiconductor because she was not an "employee" and the defendants were not "places of public accommodation."  Geiling claimed that she was barred by the Defendants from submitting bids to the Defendants, despite a successful performance history, because she had filed a gender discrimination claim.   The Court held that her claim was not authorized by law because she wasn't an "employee" under Article 2 and the Defendants wre not "places of public accommodation" under Article 3.  Therefore no law against illegal gender discrimination applied to the bidding activities and rules of the Defendants.

Time limit in application for employment is applied to eliminate racial discrimination claim

Stephania Donald was hired as a youth care worker by Wolverine Human Services in 2007.  Two years later she was fired.  She claimed that she was passed over for promotion and then fired as a result of racial discrimination.  Unfortunately for her, when she applied for work in 2007, the employer's employment application "allowed" her to contract away her civil rights by requiring her to waive any wrongs done to her if she didn't sue within 180 days.  Since she didn't immediately sue when she was passed over or when she was fired, she was not allowed to bring any action against the employer.  The normal time limits (usually three years) contained in state and federal law were "waived."