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By Edgar M. Rivera

In Kassa v. Synovus Bank, a federal district court in Georgia granted summary judgment in favor of Synovus Bank (the “Bank”), concluding that a mentally ill employee’s sexist comment was not related to his disability and, therefore, the Bank’s decision to terminate him for the comment was not discriminatory.  The court found that Eleventh Circuit law did not support the employee’s argument that the comment directly related to his conditions, including intermittent explosive and impulse control disorders, and should not have resulted in termination.  This case is important because it is one of the few cases dealing with the intersection between different protected classes, specifically, disability and sex.  This case also deals with an open issue in many circuits: whether misconduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.

Since 2013, Tony Kassa has been under care for intermittent explosive disorder, paranoid personality disorder, and alcohol abuse.  Over the years, Mr. Kassa received treatment for depression, anxiety, intermittent explosive disorder, bipolar disorder, alcohol addiction, paranoid personality disorder, and impulse control disorder.  In 2015, Mr. Kassa began working for the Bank as a Network Support Analyst.  In 2016, Mr. Kassa was moved to the ATM team day-shift, which involved answering customer service calls.  In Mr. Kassa’s first performance review, Mr. Kassa earned an “Exceeds Expectations” review in technical resource but “Below Expectations” review in team performance.  On July 20, 2017, Mr. Kassa answered a call from a female Bank teller regarding a customer’s problem with the ATM at her branch.  After a problem with one of his coworkers during the call, Mr. Kassa told the teller, “Nothing personal, I hate working with women.”  She responded “oh, that’s, that’s . . .” and then stopped talking.   Mr. Kassa then added, “Nothing personal, you might be totally different, I don’t know.”  The teller’s manager contacted Mr. Kassa’s supervisor to complain about the call between Mr. Kassa and the teller.  The Bank investigated by listening to a recording of the conversation and decided to terminate Mr. Kassa.  Among other things, Mr. Kassa claimed that he is disabled and that the Bank discriminated against him by terminating him because of his disorders.

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In Anderson v. Postmaster General, the United States Postal Service (“USPS”) fired Dipping Anderson, a postal service police officer (“PPO”), for allegedly sleeping on the job.  Ms. Anderson sued the USPS, claiming that USPS had retaliated against her for having filed previous complaints with Equal Employment Opportunity Commission (“EEOC”).   After a seven-day bench trial, the district court concluded that Ms. Anderson was not discriminated against but the decision to terminate her employment, rather than impose lesser discipline, was in retaliation for her EEO complaints.  USPS appealed to the First Circuit, seeking to reverse the district court’s decision.

Ms. Anderson worked for USPS for eighteen years and, for the first sixteen years, was never disciplined.  In 2011, Ms. Anderson took time off work for a work-related ankle injury.  In May 2011, when Ms. Anderson reported back to work with her doctor’s permission, her supervisor refused to allow her to work for no apparent reason.  Ms. Anderson ultimately returned to her post and requested pre-complaint counseling, in which she alleged race discrimination.  In June 2011, Ms. Anderson attended an EEO conference with her superiors.  The conference, however, did little to resolve any issues between them, because in 2012, Ms. Anderson made several more requests for pre-complaint EEO counseling.  One of Ms. Anderson’s superiors was so angry that she had made complaints of discrimination, that he told a co-worker, “I want her gone. I want her gone before I retire.”

Finally, on June 12, 2013, USPS suspended Ms. Anderson without pay for sleeping on the job.  Even though Ms. Anderson denied sleeping on duty and USPS’s investigation made no factual finding of the incident, on September 9, 2013, USPS terminated her employment.  In the end, the Court credited Ms. Anderson’s version of events, for there was evidence showing that Ms. Anderson was using her cell phone during the time in question.

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By Crismelly Caso

Despite the fact that 1 in 5 American adults experience a mental illness every year, mental health is not something everyone feels comfortable talking about, especially not with their employers. Bipolar disorder—a disorder associated with episodes of mood wings ranging from depressive lows to manic highs—is one such condition that can be, without treatment and accommodations, particularly challenging to manage in the workplace.  Moreover, the stigma associated with bipolar disorder often impedes some individuals from publicly exercising their rights under federal, state and city laws.

Many may think that bipolar disorder is rare but, in the United States alone, there are approximately 5.7 million people suffering from the disorder.  In fact, it is the sixth leading cause of disability in the world.  There are two types of the bipolar disorder: Bipolar I and Bipolar II.  Bipolar I involves periods of severe mood episodes from mania to depression, while Bipolar II disorder is a milder form of mood elevation, involving milder episodes of hypomania that alternate with periods of severe depression.

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In EEOC v. Wal-Mart Stores Inc., on behalf of Paul Reina—a deaf, visually impaired, and intellectually disabled, cart pusher—the EEOC sued Wal-Mart Stores Inc. (“Wal-Mart”) under the Americans with Disabilities Act (“ADA”) for failure to accommodate Mr. Reina’s request to work with a “job coach.”  Wal-Mart moved for summary judgment, which on December 18, 2018, a federal district court denied on the grounds that disputed issues of material fact remained as to whether Mr. Reina was a “qualified” individual and “whether allowing a permanent job coach was a reasonable accommodation.”

In 1998, Mr. Reina began working at Wal-Mart as a cart pusher.  In 1999, Wal-Mart allowed Mr. Reina several accommodations, including the ability to work with a job coach.  The job coach assisted in several ways, including watching for oncoming cars, helping Mr. Reina stay focused on tasks, prompting Mr. Reina to help a customer if a customer needed help loading their car, and steering longer lines of carts.  Over the years, Mr. Reina worked with several different job coaches and, with their assistance, Mr. Reina’s performance ratings were generally positive.

Working with a job coach did not go without incident.  In 2012, a shift manager reported an altercation between Mr. Reina and a job coach.  Caught on tape, the job coach was seen physically abusing Mr. Reina.  The police said the report was unfounded because there were no physical injuries.  This incident, however, made Mr. Reina’s direct manager question Mr. Reina’s need for a job coach and asked Mr. Reina to provide medically supported information about his condition and reasonable accommodation.  Mr. Reina’s physician confirmed that Mr. Reina needed a job coach to do Mr. Reina’s “seeing and hearing.”  What happened after that is disputed.  The manager claimed that he asked for more information but Mr. Reina denied that the manager made such request, instead telling him to wait to hear from him.  Mr. Reina was not placed on a schedule or contacted and lost access to Wal-Mart’s job portal.

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By Leah Kessler and Crismelly Caso

Martin Luther King Jr. Day (or “MLK Day”) is a federal holiday observed on the third Monday of January each year to celebrate the life and achievements of Martin Luther King Jr., an influential American civil rights leader.

Dr. King’s sustained political activism has influenced and improved our country in countless ways, including the passage of the Civil Rights Act of 1964 (“CRA”), which in turn created the Equal Employment Opportunity Commission (“EEOC”)—a federal agency that administers and enforces civil rights laws against workplace discrimination.  As a result, in 2017, 84,254 individuals filed charges with the EEOC, seeking legal recourse against employers subjecting them to work environments in which they were demeaned and dehumanized.  He was closely involved in the passage of the National Labor Relations Act—which established the right of all workers to form unions and bargain collectively with their employers regarding their working conditions and wages.

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By Leah Kessler

Last year, New York State and New York City made groundbreaking expansions to the sexual harassment provisions of several state and city statutes and regulations, which we blogged about here.  In doing so, New York has increased the safety of men and women in the workplace.  This is an important task, as there are approximately 321,500 cases of rape and sexual assault reported annually in the U.S.—a number far less than the projected actual number, as victims are often too afraid to report their experiences.  These laws are an important step forward, effectively holding employers and companies to a higher standard to improve the workplace, especially for the over 74 million women in the labor force today.

In May 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act—comprehensive legislation aimed at addressing and preventing sexual harassment in the workplace.  Notably, this act expands the City Human Rights Law in cases of gender-based harassment by increasing the statute of limitations to bring claims to the New York City Commission on Human Rights from one- to three-years, regardless of the size of their employer.  In addition, it requires all employers in the City to display anti-sexual harassment rights and responsibilities in both English and Spanish.  Employers are also required to post a mandatory notice provided by the New York City Commission on Human Rights as well as a mandatory notice to all new hires. (The notices are found here and here, respectively.) Employers must already be in compliance with these posting requirements.

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The Harman Firm, LLP is proud to announce that we have a new partner at the firm, Edgar M. Rivera, Esq.  Ed started as an associate here at The Harman Firm, LLP after graduating from Fordham University School of Law in 2014.
Ed is an aggressive and zealous advocate for employees who have been subjected to harassment, discrimination, retaliation, and wage-and-hour violations. Ed has represented hundreds of employees in individual, multi-plaintiff, collective- and class action litigation before state and federal courts in New York, New Jersey and Florida in English and Spanish.
Ed is a member of the National Employment Lawyer Association (“NELA”), where he participates in NELA’s discussion boards and conferences, including the annual Trial Boot Camp in Chicago. He is published in the New York State Bar Association Labor and Employment Law Journal, serves as the editor of the New York Employment Attorney Blog, The Harman Firm, LLP’s employment law blog, and frequently speaks on issues in employment law. He has also appeared on a PIX 11 segment “Know Your Rights: Harassment in the Workplace,” where he discussed identifying and reporting sexual harassment in the workplace, and regularly speaks on employment-law issues.
Last year, Ed won two trials, including a six-figure jury verdict in a wage-and-hour case. We’d like to congratulate, Ed.!
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By Edgar M. Rivera

On December 19, 2018, in Lipp v. Cargill Meat Solutions Corp., the Eighth Circuit affirmed summary judgment against Sheena Lipp, concluding that the she could not make a prima facie case that she was a “qualified individual” and, thus, dismissing her disability discrimination and failure-to-accommodate claims under the Americans with Disabilities Act (“ADA”).

From 1995 until 2014, Ms. Lipp worked for Cargill Meat Solutions Corp. (“Cargill”), a meat processing facility, where she stacked and supplied empty boxes to the production line, labeled boxes, manually moved pallets, and packed boxes. In 2000, she was diagnosed with lung disease, which made it difficult for her to walk, run, or otherwise exert herself physically, especially during “flare-ups,” thereby rendering her “disabled” under the ADA.  Beginning in October 2012, she required several work accommodations, including taking days off during flare-ups, which Cargill permitted. 

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On September 24, 2004, in Tambash v. St. Bonaventure, a New York District Court held that an employer is on notice that leave under the Family and Medical Leave Act (“FMLA”) may be needed where the employer is aware of its employees’ mental health condition.  While this case is not new, it is worth looking back at.  Tambash ensures that employers who know of their employees need for leave are not off the hook.

In Tambash, Plaintiff Terrence N. Tambash accepted a position by St. Bonaventure University (the “University”) as a security personnel and rose to Director of Security Services.  Ten years later, Mr. Tambash began to experience depression and anxiety.  Due to the significant decline of his mental health, Mr. Tambash requested a one-month vacation to deal with his stress and depression and notified his supervisor that he would need to take a medical leave for mental health reasons after returning from vacation.  Mr. Tambash was an FMLA-eligible employee.  Unfortunately, while on vacation, Mr. Tambash received a letter stating that the University had terminated his employment due to unsatisfactory work performance, neglecting his duties, and incompetence.  Mr. Tambash sued, alleging that the University had interfered with his right to take leave under the FMLA.

On summary judgment, the University argued that Mr. Tambash’s FMLA claim must be dismissed on the grounds that Mr. Tambash failed to provide adequate notice of his need for FMLA leave.  Before Mr. Tambash left for vacation, Mr. Tambash only told Mr. Solan that, “I probably need extended time after the vacation to deal with the problems.”  On another day, Mr. Tambash informed Mr. Solan that he could no longer work due to his mental anguish and told three St. Bonaventure employees that he would resign.  Later that day, however, Mr. Tambash called back to state that he wanted to take sick leave.  At no point did Mr. Tambash specifically ask for FMLA leave.  The supervisor, however, was aware that Mr. Tambash was being treated for anxiety and depression and that Mr. Tambash took time off work before his vacation due to emotional distress.

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By Edgar M. Rivera, Esq.

In December 2017, by a vote of 48 to 2, the New York City Council passed by a vote of 48-2 Local Law No. 59 (2018), amending the New York City Human Rights Law (“NYCHRL”) by creating an independent cause of action against employers who fail to engage in the interactive process to determine if an accommodation of an eligible employee is needed.  In other words, an employer may not “refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation,” whether related to a disability, religious practices, pregnancy or childbirth, or needs as a victim of domestic violence.  The law went into effect on October 15, 2018.

The term “cooperative dialogue” means the process by which a covered entity and an employee who may be entitled to an accommodation engage in good faith dialogue (written or verbal) concerning an employee’s accommodation needs.  This dialogue may include any of the following: potential accommodations that may address the employee’s accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the covered entity.

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