Articles Posted in Retaliation

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Harrison Paige

On April 4, 2017, in Vasquez v. Smith’s Food & Drug Centers, Inc., the U.S. District Court for the District of Arizona denied summary judgment on Juanita Vasquez’s disability discrimination and retaliation claims under the Americans with Disabilities Act (“ADA”). Vasquez alleged that that Smith’s Food & Drug Centers (“Smith’s”) had discriminated against her based on her disability by failing to accommodate her fibromyalgia and terminating her for her use of a previously approved accommodation. The court found that disputes of material fact remained which required that the case proceed to trial.

In 2009, Vasquez, a 17–year Smith’s employee, was diagnosed with fibromyalgia, a chronic condition which causes musculoskeletal pain, fatigue, disordered sleep, and memory and mood problems. Vasquez’s primary care physician completed a “Medical Accommodation Questionnaire” to submit to Smith’s after her diagnosis, stating that Vasquez could not stand for more than two hours, lift over ten pounds, or bend and stoop frequently. These restrictions disqualified Vasquez from working in certain positions at Smith’s, such as cashier roles, but Frank Orozco, the store manager at Vasquez’s location at the time, assigned her to work as a courtesy clerk and administrative secretary to accommodate her disability-related limitations.

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Lev Craig

The U.S. Court of Appeals for the Second Circuit recently affirmed the determination of the National Labor Relations Board (NLRB) in NLRB v. Pier Sixty, LLC, a case involving the boundaries of union-related activity protected under the National Labor Relations Act (NLRA). In its April 21, 2017 decision, the Second Circuit held that Pier Sixty, LLC, had violated the NLRA when it terminated an employee over his union-related Facebook post, even though the post used obscenities and disparaged the employee’s supervisor.

The NLRB is a federal agency tasked with the “prevention of statutorily defined unfair labor practices on the part of employers and labor organizations” and is authorized to investigate, prosecute, and adjudicate claims of unfair labor practices. The agency was created by the NLRA, a federal labor law passed in 1935 which protects the rights of employees to organize, engage in collective bargaining, and participate in other union-related activities. The NLRA prohibits an employer from terminating an employee based on “protected concerted activity,” a term referring to employees working together to improve the terms and conditions of their employment—for example, attempting to form a union, discussing pay and safety concerns with other workers, and making complaints about workplace conditions. However, there are exceptions if an employee’s behavior is found to be so “opprobrious” that it no longer falls within the NLRA’s protections. Though the NLRA generally protects union-related activity, “even an employee engaged in ostensibly protected activity may act ‘in such an abusive manner that he loses the protection’ of the NLRA.”

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Shelby Krzastek

On March 8, 2017, Anita Poe-Smith filed suit against Epic Health Services, Inc. (“Epic”), and Leo and Sherrie Weigand, alleging sexual harassment and retaliation. Ms. Poe-Smith works for Epic as a home health aide.

In February 2015, Epic assigned Ms. Poe-Smith to work for a client residing in the home of Leo and Sherrie Weigand. Ms. Poe-Smith claims that from February 2015 to May 2015, Mr. Weigand sexually harassed her by directing sexual innuendos and inappropriate comments toward her and, ultimately, physically assaulting her when, according to Ms. Poe-Smith, Mr. Weigand pushed her down and hit her on her buttocks. After reporting the incident to Epic, Ms. Poe-Smith was offered a new assignment, which she was unable to accept because it interfered with her familial obligations. Several weeks later, Epic offered her another full-time assignment, which she accepted. Ms. Poe-Smith then sued Epic Health Services and the homeowners for sexual harassment and retaliation.

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Lev Craig

On September 8, Wells Fargo was fined $100 million by the Consumer Financial Protection Bureau (CFPB)—the largest fine in the agency’s history, according to its director—after an investigation found that bank employees had opened over two million bank accounts and credit cards without customers’ knowledge or consent between May 2011 and July 2015.

In addition to fines, Wells Fargo will be required to compensate any affected customers for fees incurred on the unauthorized accounts, such as annual fees or overdraft fees. On September 16, three plaintiffs in Utah filed suit against Wells Fargo, alleging theft and fraud and seeking class action status on behalf of up to a million customers who may have been affected.

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Owen H. Laird, Esq.

On July 26, 2016, the New York Times reported on allegations of improper employment practices concerning Bridgewater Associates, an organization commonly considered to be one of the largest hedge funds in the world, if not the single largest. The Times article refers to a complaint filed against Bridgewater by a Bridgewater employee with the Connecticut Commission on Human Rights and Opportunities, a complaint filed against Bridgewater by the National Labor Relations Board, and interviews with former Bridgewater employees.

The article describes a culture of surveillance and control at Bridgewater, with video and audio recordings, security patrols, and even some employees who are required to lock up their phones before heading to their desks. In and of itself, such allegations would not be surprising. Hedge funds are notoriously secretive and controlling over their internal goings-on and strive to protect any advantage they might have over the competition; policies and practices intended to protect internal information are the norm in the financial industry.

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Edgar Rivera, Esq.

In a complaint filed in the Southern District of New York on December 21, 2015, Debra Martin, a former employee of Middletown Community Health Center Inc. (“MCHC”), alleged that MCHC unlawfully terminated her employment due to her reporting to her superiors that MCHC had misused of federal funds and over billed Medicare and Medicaid.

MCHC, a federally qualified non-profit health center, provides community health care services in several locations in New York and Pennsylvania. Ms. Martin, who was charged with reviewing MCHC’s finances, claims that MCHC misused funds it received from the Health Resources and Services Administration and billed Medicare and Medicaid for services that it had not provided. She alleges that MCHC’s director, Theresa Butler, knew, approved, and often directed these practices.

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Jennifer Melendez and Edgar M. Rivera, Esq.

On November 18, 2015, 2,000 airport workers went on a strike against airline subcontractors, Rome and Ultimate Aircraft to protest poor working conditions, low wages and the subcontractors’ retaliation against the workers for unionizing.

The strikes were widespread, taking place at New York’s John F. Kennedy and LaGuardia airports, New Jersey’s Newark Liberty airport as well as several other major US airports. The protesters included those lower paid airport workers such as cleaners, wheelchair attendants, and baggage handlers. According to union leaders, many of these workers are making as little as $6.75 an hour. Marc Goumbri, the Service Employees International Union’s  spokesperson, stated:

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by Jennifer Melendez

On October 7, 2015, Two Colorado potato-packing companies, Smokin’ Spuds Inc. and Farming Technology Inc., agreed to pay $450,000 to settle an Equal Employment Opportunity Commission (EEOC) suit for sexual harassment and retaliation. The EEOC charged both companies with violating federal law by subjecting more than a dozen women to frequent, harassing comments and unwelcomed physical contact from their supervisor, Samuel Valdez. The suit also alleges that the companies terminated three women in retaliation for making complaints to management about the harassment.

According to the EEOC charge, Mr. Valdez made sexual comments and gestures to the women, touched the them on their buttocks and breasts, and, at least in one incident, placed a female employee on his lap. Because most of the women who made complaints were fired for doing so, the harassment continued for years. Mr. Valdez’s conduct, the companies’ failure to adress complaints and the termination of those women for making complaints, all violates Title VII of The Civil Rights Act of 1964, which prohibits, among other things, sexual harassment and retaliation for making a complaint.

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Edgar M. Rivera, Esq.

On September 2, 2015, the Second Circuit Court of Appeals decided Vega v. Hempstead Union Free School District, et al., an employment-discrimination case bringing claims under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983. In an opinion written by Judge Denny Chin, the court held that claims of retaliation for complaining of discrimination are actionable under § 1983, vacating a prior Eastern District of New York ruling on the matter.

Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another person of any constitutional or federal statutory rights, creating a vehicle by which a plaintiff may enforce existing federal rights denied by a state or local government. In the context of employment discrimination, § 1983 provides a private right of action for violations of the equal protection clause of the Fourteenth Amendment, which prohibits the “deprivation of any rights, privileges, or immunities” by a state or local government and its officials.

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Yarelyn Mena and Owen H. Laird

When the Supreme Court of the United States affirmed the right for same-sex couples to marry, the LGBT community won a long and hard-fought battle for marriage equality. The Human Rights Coalition (HRC), one of America’s largest civil rights organizations committed to ensuring legal rights for the LGBT community, continues the struggle for LGBT rights by supporting the Employment Non-Discrimination Act (ENDA), legislation aimed at protecting the LGBT community from discrimination in the workplace. ENDA would make it illegal for employers to discriminate against potential or current employees based on their sexual orientation or identity.

ENDA resembles Title VII of the Civil Rights Act of 1964 in its purpose to prevent and eradicate discrimination of protected classes in the workplace. The HRC supports passing ENDA because there “is no federal law that consistently protects LGBT individuals from employment discrimination; there are no state laws in 29 states that explicitly prohibit discrimination based on sexual orientation, and in 32 states that do so on gender identity.” Currently, in the states that do not offer protection to LGBT workers, employees and prospective employees face routine and often legal discrimination because of their sexual orientation or gender identity. ENDA will provide LGBT workers with nationwide protection from employment discrimination, filling in the gaps left by state laws. Protection against sexual orientation and gender identity based discrimination is already widespread. According to a report by the HRC, 8 out of 10 voters already believe that discrimination based on sexual orientation and gender identity was illegal, showing that ENDA would provide the legal framework for rights that most Americans already believe exist.

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