TOV.WrongfulTermination&Discrimination

Court rejects Michigan Compensation Appellate Commission denial of unemployment to woman who was too sick to work

Aisha Nichols was fired because she called in sick once too often.  Her employer, Auto Club Services, Inc., had a zero tolerance "no fault" policy relating to excessive absenteeism.  When she experienced a "thyroid storm" and called in sick, she was fired.  She subsequently applied for unemployment.  The employer stipulated that her absences were medically related, but argued that they constituted "misconduct" that rendered her ineligible for unemployment benefits under the more restrictive standard adopted by the Republican majority in the Legislature. 

A Republican-appointee Administrative Law Judge agreed and the Republican-dominated MCAC affirmed that decision.  She appealed and the Court of Appeals overturned the holding.  The appellate judges noted that a "claimant's tardiness or absences cannot support a finding of statutory misconduct unless it is determined that they are without good cause."  On that basis, her claim was remanded for further proceedings, where the employer will be required to show that Nichols' absence was willful.  The judges cited precedent to the effect that "tardiness or absences resulting from events beyond the employee's control or which are otherwise with good cause cannot be considered conduct in willful or wanton disregard of the employer's interests."

Age discrimination claim dismissed; FMLA estoppel claim reinstated

In Tilley v. Kalamazoo Co. Road Commission, the Court of Appeals upheld the summary dismissal of an employee's age discrimination claim.  The Court held that the 59-year old had not provided sufficient proof that his supervisors disliked him because of his age.  The Court did send the case back to the trial court, however, to assess whether the employer should be "estopped" to argue that the Family Medical Leave Act should apply to the man's decision to leave a job site when he had chest pain.  The employee argued that he only left work because the employment manual issued by the Road Commission assured him of the FMLA protections which the Road Commission now argued should not apply.

Fed Ex rulings recognize employee abuse by corporation

Fed Ex, long accused of violating state and federal statutes governing the treatment of employees, lost two cases recently.  The first was Wallace v. FedEx Corporation, a Sixth Circuit case in which Wallace argued that FedEx wrongfully terminated the female plaintiff in violation of the Family Medical Leave Act [FMLA].  In a more far-reaching decision, the Ninth Circuit ruled that Fed Ex wrongfully categorized employee drivers as "independent contractors" in order to deny them statutory employment rights.

The Ninth Circuit holding was issued on August 27 and is likely to end up before the U.S. Supreme Court.  That Court's 5-4 conservative Republican majority will likely uphold employment practices by FedEx that were previously deemed illegal.  In Alexander v. FedEx Ground, the Ninth Circuit concluded that since FedEx closely controls the "manner and means of accomplishing" the employees' work," they are, in fact, not independent.  It cited the restrictions on appearance imposed by FedEx, the standards and requirements applied to employee vehicles, the daily hours and assignments, reporting times and locations, and the narrow control of geographic regions.

The Wallace case involved a decision to fire Ms. Wallace, employed by FedEx since 1986, after she missed two days' work.  She had a history of health and attendance problems.  Her supervisor at FedEx had asked her to fill out an FMLA form but had not explained that if she failed to do so, she would be terminated.  The next time she missed two consecutive days, she was fired. 

She filed suit and a jury awarded her $158,000.00.  The judge reduced the verdict to $98,000.00.  Both parties appealed and the Sixth Circuit upheld the award, while rejecting the Judge's reduction of the verdict.

Court holds that two-year statute of limitations applies to FMLA claims of state employees; reinstatement rejected

In Crugher v. Prelesnik, the aggrieved Department of Corrections employee sought reinstatement of his previous position, but he did not act within two years of the alleged violation of the FMLA.  He pointed to a prior decision of the Supreme Court authorizing an aggrieved employee to file suit within three years.

The Court held that since the FMLA provided the plaintiff an express remedy for a violation, he was obligated to act within the time limits contained within the FMLA and that the prior damages claim holding suggesting otherwise did not apply to him.

Michigan court holds worker did not adequately allege hostile work environment

In Perry v. Department of Human Services, the plaintiff brought a legal action claiming that she was denied promotion and received a negative evaluation as a result of racial discrimination.  She pointed out that the events occurred at approximately the same time that a stuffed gorilla was placed on a cubicle wall that separated her work area from common areas in the office.

The Court summarily rejected her claim, holding that she did not adequately raise a claim of hostile work environment, that there was "no evidence that the placement of the gorilla was racially motivated," and that the "totality of the circumstances did not constitute proof of severe or pervasive discriminatory conduct."

Court reverses to allow FMLA retaliationn claim to go to trial

Allan Demyanovich sued his employer, Cadon Platings and Coatings, alleging that it retaliated against him and fired him for filing an FMLA claim.  A 20-year employee, Demyanovich had been promoted to "area leader" and had a good record until his health deteriorated in 1998. Eventually he suffered from symptoms of congestive heart failure, but was able to return to work "able to do what he was doing before" according to his doctor.

He requested lighter duty, however, and his employer not only denied this request but continued to schedule him for overtime.  The employer concluded (incorrectly) that it did not employ enough people to be subject to the terms of the Family Medical Leave Act and denied Demyanovich and accommodation.  Cadon then terminated his employment and Demyanovich sued.  Although the trial judge summarily dismissed the lawsuit, the appellate court overturned this decision.  It held that there was a genuine factual dispute, given the opinions of Demyanovich's doctors, with regard to whether he was permanently disabled when Cadon terminated his employment.

Sixth Circuit evaluates disability and retaliation claim against Ford Motor

On behalf of Jane Harris, the EEOC sued Ford Motor Company, alleging that it discriminated against Harris because of a disability that it could have accommodated.  Harris worked for Ford as a resale steel buyer for almost a decade, but experienced progressive difficulty with irritable bowel syndrome.  She  required several FMLA leaves and sought a work-at-home accommodation.  Ford made the determination that Harris could not work at home the requested four days per week and denied her request.  Ford's HR Department suggested alternative accommodations that still required Harris to report to a Ford facility; instead she filed a complaint with the EEOC.

The parties relationship deteriorated, Harris stopped going to work, and the EEOC filed this lawsuit alleging violations of the ADA and retaliation.  The trial judge concluded that Ford had satisfied its duty to prove that the work-from-home request was unreasonable and granted summary disposition of the claim.  The EEOC appealed and the higher court reversed.  The panel majority concluded that a reasonable jury could examine the facts and conclude that Ford had not reasonably  accommodated Harris or that it had retaliated against her for involving the EEOC.  

Sixth Circuit holds that volunteer firemen paid $15.00 per hour were "employees" under Fair Labor Standards Act

Paul Mendel sued his employer after he was terminated form his police dispatch job.  The City of Gibraltor in Eastern Michigan argued that it was not required to comply with the federal Fair Labor Standards Act or the Family Medical Leave Act because it did not employ 50 persons.  It admitted employing 41 full-time employees, but argued that its thirty-some "volunteer" firefighters should not be included for purposes of FLSA or FMLA jurisdiction. 

The Sixth Circuit reviewed the statutory language and prior interpretations and concluded that Congress and the Courts had made explicit the intent that the term "employee" be broadly interpreted under the pertinent statutory language.  On that basis, since the firefighters received market wages and not merely nominal reimbursuement, they were "employees"  under the act, even if they might not qualify under state rulings distinguishing employees from "independent contractors."

Terminated employee's FMLA claim is rejected by Sixth Circuit

Matt White sued Dana LIght Axle Manufacturing claiming that he was wrongfully terminated for exercising Family Medical Leave Act (FMLA) rights.  The court noted that White encountered attendance problems prior to the FMLA issues arising and that he was terminated after failing to comply with Dana's rules governing attendance reporting.  The Court relied upon past holdings to conclude that White was properly terminated for failing to comply with his employer's "usual and customary notice and procedural requirements for requesting leave."

Abused Ohio woman is later denied Family Medical Leave Act benefits and fired

Debra Kinds sued Ohio Bell Telephone after she was terminated from employment.  Kinds was involved in a mentally and physically abusive relationship that culminated in death threats and an assault that sent her to a local E.R. on August 30, 2009.  She reported what happened to her supervisor and sought time off to recover and to find a new place to live. Since she was not yet eligible for FMLA time off, she was given only a discretionary leave of one week. Kinds returned to work and when she had accumulated enough hours to be eligible for FMLA in October, she sought formal FMLA leave.  With her employer, FMLA leave initiated an automatic Short Term Disability (STD) application.