Articles Posted in Wrongful Termination

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Edgar M. Rivera, Esq.

People suffering from a range of physical and mental disabilities frequently rely on companion animals, most commonly dogs, to assist them as they go about their day.  Most employers, however, prohibit employees from bringing animals to work, creating a tension between employer and employee based on a misunderstanding about disability.  As part of our series on mental health, this blog covers a case involving a companion animal for someone suffering from depression and post-traumatic-stress disorder (PTSD).

Joyce Riggs worked for the Bennett County Hospital and Nursing Home (the “Hospital”) from March 2006 until her termination in March 2015.  Between 2006 and 2012, Joyce brought a companion animal to work with her to help manage her depression and PTSD.  When Ethel Martin became CEO in 2012, however, the Hospital adopted a more restrictive policy regarding pets in the workplace.  Joyce informally requested permission to continue bringing her companion animal to work, but the Hospital denied her request.

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Edgar M. Rivera, Esq.

On February 26, 2018, in Smith v. North Shore-Long Island Jewish Health System, the U.S. District Court for the Southern District of New York denied a motion for summary judgment submitted by North Shore–Long Island Jewish Health System (the “Hospital”) to dismiss claims under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and New York City Human Rights Law (NYCHRL) brought by Nola Smith, a former registered nurse with the Hospital, finding triable issues based largely on evidence that the hospital strayed from following its established policy.

Throughout Ms. Smith’s tenure with the Hospital, she suffered from anxiety disorders and panic attacks. The Hospital accommodated her with a lighter work schedule than other nurses, and she took intermittent leaves of absence under the FMLA.  The Hospital, however, issued Ms. Smith multiple warnings for her use of leave, even though some of the leave was under the FMLA and therefore protected. (The Hospital generated a spreadsheet of nurses who called in sick more than three times per quarter, regardless of whether the absences were covered by approved leave under the FMLA.)  The Hospital also allegedly denied Ms. Smith’s transfer requests and did not allow her to attend career-enhancing conferences because of the number of her leaves of absence. At one point, the Hospital did allow Ms. Smith to attend a conference, but she could not find anyone to cover her shift and ended up missing the conference.  The Hospital, however, paid Ms. Smith for the conference attendance, which payment Ms. Smith assumed represented accrued paid time off.  The Hospital later discovered that Ms. Smith had not attended the conference and fired her for accepting pay for a conference she failed to attend.

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Edgar M. Rivera, Esq.

On November 15, 2017, in Berghorn v. Texas Workforce Commission, the District Court for the Northern District of Texas dismissed with prejudice plaintiff Kyle Berghorn’s sexual orientation discrimination claim, but allowed him to re-plead his gender stereotyping claim. Berghorn alleged that Xerox terminated his employment because he is gay and because he failed to conform to Xerox’s gender stereotypes. Both of Berghorn’s claims arose under Title VII of the Civil Rights Act of 1964 (“Title VII”).

Berghorn was employed by Xerox from 2002 until February 29, 2016. At the time of his termination, he held the position of senior manager. Xerox terminated Berghorn after finishing an investigation, which purportedly concerned Berghorn’s use of expenses, but in which Xerox instead asked Berghorn several questions about whom Berghorn was sleeping with and whether the person was male. Allegedly, Xerox employees had previously made other disparaging comments about Berghorn’s sexuality, like, “He has no children. He’s gay.” Ultimately, the investigation revealed that Berghorn had not stolen any money from the company and that he had himself paid for personal charges on his card; his expenses were in order. Nonetheless, Xerox fired him.

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This Monday, November 13, 2017, the U.S. District Court for the Northern District of Illinois granted the defendant’s motion for summary judgment in Richardson v. Chicago Transit Authority, in which plaintiff Mark Richardson alleged that his former employer, the Chicago Transit Authority (CTA), had violated the Americans with Disabilities Act (ADA) by terminating his employment because he was obese. The court held that, if not caused by an underlying physiological disorder or health condition, obesity in and of itself does not qualify as a disability under the ADA. As a result, Richardson was unable to show that he was disabled within the meaning of the ADA, and his ADA claim was dismissed.

Richardson began working for the CTA as a bus driver in 1999. In 2010, after Richardson took an extended medical leave, the CTA required him to undergo a medical exam and safety assessment before returning to work. At the time of the medical evaluation, Richardson weighed 594 pounds and, according to standardized height and weight medical guidelines, had a BMI of 82.8, meaning that he was medically considered to be “suffering from ‘extreme obesity.’” During the safety assessment, the CTA found that Richardson’s weight prevented him from complying with various CTA safety regulations; for example, Richardson could not perform hand-over-hand turning or stop “cross-pedaling”—having part of his foot on the gas and brake pedals at the same time—because of his size. The CTA later terminated Richardson’s employment, stating in a memo, “Based on the Bus Instructors [sic] observations and findings, the limited space in the driver’s area and the manufacturer [maximum allowable weight] requirements, it would unsafe for Bus Operator Richardson to operate any CTA bus at this time.”

After his termination, Richardson brought suit against the CTA in Illinois federal court, alleging that the CTA had violated the ADA by terminating his employment because of his obesity. After the CTA unsuccessfully moved to dismiss last year, Richardson moved for partial summary judgment on the issue of whether his obesity qualified as a disability under the ADA, and the CTA cross-moved for summary judgment on the grounds that Richardson could not establish that the CTA regarded him as disabled, as required to sustain his discrimination claim. The court denied Richardson’s motion and granted the CTA’s, dismissing Richardson’s claims.

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On September 29, 2017, the U.S. District Court for the Northern District of Illinois dismissed all claims in Demkovich v. St. Andrew the Apostle Parish, finding that the First Amendment’s “ministerial exception” precluded a gay music director at a Catholic church from bringing wrongful termination claims after he was fired just days after marrying his male partner.

In 2012, St. Andrew Parish and the Archdiocese of Chicago hired Sandor Demkovich as music director, choir director, and organist, where he was responsible for selecting and performing music played during mass at St. Andrew. Reverend Jacek Dada, the pastor at St. Andrew, knew that Demkovich was gay and engaged to a man. But shortly before Demkovich married his now-husband in September 2014, Demkovich’s coworkers told him that Reverend Dada intended to ask him to resign after the wedding and had already started telling St. Andrew employees that Demkovich had been fired.

Sure enough, four days after Demkovich and his husband were married,Reverend Dada called Demkovich into his office and asked him to resign. After Demkovich refused to resign, Reverend Dada fired him, telling him that his union went “against the teachings of the Catholic church.” Demkovich then brought suit in federal court, alleging sex and sexual orientation discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”).

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Edgar M. Rivera, Esq.

On August 22, 2017, in Edwards v. Nicolai, the First Department Appellate Division—the appellate court of the counties of New York and the Bronx—overturned the trial court’s decision to dismiss gender discrimination claims, allowing Plaintiff Dilek Edwards to pursue her claims against Defendants Charles V. Nicolai and his wife, Stephanie Adams, a former Playboy Playmate. Ms. Edwards alleges that Mr. Nicolai and Ms. Adams—co-owners of Wall Street Chiropractic and Wellness (WSCW)—discriminated against her by terminating her employment because she was sexually attractive.

In April 2012, Mr. Nicolai hired Ms. Edwards as a yoga and massage therapist. According to Ms. Edwards, her relationship with Mr. Nicolai was “purely professional,” and Mr. Nicolai “regularly praised Plaintiff’s work performance throughout her period of employment.” In June 2013, however, Mr. Nicolai allegedly “informed Plaintiff that his wife might become jealous of Plaintiff, because Plaintiff was too cute.” Approximately four months later, Ms. Adams sent Ms. Edwards a text message stating, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” A few hours later, Ms. Edwards allegedly received an email from Mr. Nicolai stating, “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.”

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By Harrison Paige

In Green v. Dallas County Schools, the Texas Supreme Court recently held that a Texas appeals court erred in its decision to overrule a trial court’s jury finding of disability discrimination. The state supreme court thus reversed and remanded the case back to the appellate court for additional deliberation.

Plaintiff Paul Green suffers from a congestive heart defect, which he treats with a diuretic medication whose side effects include urinary incontinence. Green was employed by the Dallas County School District (“DCS”) as a school bus aide and monitor, helping to transport children with special needs to and from school every day. At the start of his employment, he reported his heart condition, as well as his medication-related urinary incontinence, to his supervisor. Initially, Green had no problems, working easily with a bus driver who accommodated Green’s medical needs by stopping the bus at public places along the route to allow him to use the restroom as needed.

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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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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.”

In NLRB v. Pier Sixty, employees at Pier Sixty, a New York­­–based catering company, began seeking union representation in 2011. In late October 2011, the employees ultimately voted to unionize after a contentious organizing campaign involving “threats from management that employees could be penalized or discharged for union activities” (which Pier Sixty did not contest violated the NLRA). A few days before the union election, Hernan Perez, a Pier Sixty server, posted an angry, derogatory message about his supervisor, Robert McSweeney, on his Facebook page after McSweeney spoke harshly to a group of Pier Sixty employees. Shortly afterward, Perez, viewing McSweeney’s behavior as “the latest instance of the management’s continuing disrespect for employees,” wrote the Facebook post, which read, “Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”

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Yarelyn Mena and Edgar M. Rivera, Esq.

For a claimant to qualify for unemployment insurance benefits, the claimant, among other things, must have lost their job through no fault of their own. This generally means if the claimant was terminated, it must not have been for misconduct. Usually, whether the reason for termination rises to misconduct is simple: stealing, harassment, or fighting is misconduct while forgetfulness, occasional lateness, or being unable to do the job is not. The following two cases are examples of uncertainty; uncertainty in whether the behavior amounts to misconduct and uncertainty as to what actually happened.

In the first case, claimant Shawn Roy appealed his disqualification from receiving unemployment insurance benefits on the grounds that there was no misconduct. The Appellate Division found substantial evidence that supported the Unemployment Insurance Board’s determination that Mr. Roy was discharged as a food service worker due to disqualifying conduct, specifically, he created “violent and sexually explicit videos using LEGO characters, including characters depicting the executive director of the nursing home, claimant’s department head and two female coworkers, and posted the videos online.” The Board was convinced that Mr. Roy was obligated “even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him… ” As such, the Board decided that the videos constituted misconduct and, as a result, he was disqualified for collecting unemployment insurance benefits. This case is a lesson in that at least in some circumstances, legal conduct outside of work can constitute misconduct.

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