Articles Posted in Family and Medical Leave Act

A federal Court of Appeals has affirmed a jury verdict in favor of a former Costco employee in connection with her claim of a hostile work environment based upon sexual harassment by a customer.  This case reaffirms that an employer can be held legally responsible for allowing a hostile work environment created by non-employees if the conduct is severe or pervasive enough to render the employee’s work environment hostile.

In the matter of EEOC v. Costco Wholesale Corp., the EEOC sued on behalf of a former Costco employee, Dawn Suppo.  Ms. Suppo was initially employed as a seasonal, part-time employee in 2009 and then became a regular, part-time employee in May, 2010.  Around the time she became a regular employee, a customer named Thad Thompson began approaching Ms. Suppo and asking her personal questions that her uncomfortable.  Initially, Ms. Suppo did not report the interactions to her supervisor or other management.  However, in or about July/August, 2010, the conduct did not stop and Ms. Suppo informed her supervisor of Mr. Thompson’s harassing conduct and the fact that she was scared of him.  Her supervisor instructed her to notify him if she sees Mr. Thompson again.

Soon thereafter, Ms. Suppo noticed Mr. Thompson in the store again watching her through the store aisles. Ms. Suppo reported to her supervisor that Mr. Thompson was back in the store stalking her and that she was scared of him.  As a result, Ms. Suppo’s supervisor and other management brought Mr. Thompson into the warehouse office and instructed him to leave Ms. Suppo alone.  Mr. Thompson responded with anger and loudly yelled that it is a “free country” and that he had “freedom of speech.”  Ms. Suppo was extremely scared at this point and decided to call the police and file a report.  Later that day, the one of the Costco Assistant Managers yelled at Ms. Suppo for calling the police and instructed her to be nice to Mr. Thompson.

The United States has been slowly progressing towards equity when it comes to employment policies that outlaw gender, disability, and other types of discrimination. Despite this advancement, there are a few areas that have shown reluctance to moving forward. One such industry is that of professional sports.  As a result of the nature of sports related occupations, issues such as disability, gender, and pregnancy discrimination have proven difficult to overcome. Athletes who are considering starting a family must contemplate the reactions of their sponsors, fans, and coaches, and they fear the cancelling of sponsorships as well as receiving less playing time from their coaches. Fortunately, a recent situation arose in women’s professional tennis that forced the United States Tennis Association to quickly consider changes to pregnancy and discrimination policies.

Arguably the greatest female tennis player in history, Serena Williams has won twenty-three Grand Slam singles titles since 1999, as well as four Olympic gold medals and seventy-two total career singles titles. Williams recently took a leave of absence from competing as she became pregnant and gave birth to her child, Olympia, in September of 2017. She also unfortunately experienced severe complications from this pregnancy that added to the physical strain of giving birth. Despite her record-breaking athletic history, she returned from pregnancy leave to find that she was unseeded in the French Open this year. In professional tennis, seeds are awarded to the highest ranked players of the year, and unseeded players encounter additional obstacles in the tournament, such as facing highly competitive players very early on in the tournament. For such a successful and powerful athlete as Williams, not being awarded a seeded spot following her pregnancy was not only disrespectful, but also viewed as discriminatory.

As a result of the backlash that the actions of the French Open have received, the United States Tennis Association (USTA) has announced that they plan to alter their seeding procedure in order to take into account additional factors that may have influenced an athlete’s ranking, which will include pregnancy and the complications that arise from the condition. Wimbledon already reserves and occasionally exercises the right to alter computer calculated seeding if they feel there are additional factors (such as pregnancy) that should be taken into consideration. In support of Wimbledon’s practice, the President and Chairwoman of USTA, Katrina Adams, explained that players should not be penalized for exercising their rights to start a family, and that the new US Open policy will help the sport to achieve greater equality and strike down discriminatory practices. Adams compared the French Open’s actions to the business environment, stating that forcing a player to return from maternity leave to a lower ranked position would be the same as having a business executive return to an entry level position. If this happened in any company in the United States, the employer would be guilty of pregnancy discrimination. Why is this not the case with the Women’s Tennis Association?

The United States Supreme Court has declined review of a 7th Circuit Court of Appeal decision holding that the American’s with Disabilities Act (“ADA”) does not require employers to provide any reasonable accommodation of an extended medical leave for any more than twelve (12) weeks under the Family and Medical Leave Act (“FMLA”).

In  Severson v. Heartland Wood, Inc. No. 15-3754 (7th Cir. Sept. 20, 2017), the employee, Mr. Severson, went out on company approved FMLA leave for severe back pain in June 2013.  The day before he was supposed to return to work, he underwent back surgery necessitating an additional 2 or 3 months of medical leave to recover from the surgery. Mr. Severson, having exhausted his FMLA leave, asked his employer Heartland for the additional medical leave.  The company refused and terminated his employment.  Mr. Severson then sued his employer arguing that he was not being given the extra leave as a reasonable accommodation under the ADA.

The District Court sided with the employer on a summary judgement motion.  On appeal, the Seventh Circuit agreed, holding that the employer did not have to provide the additional leave other than the 12 weeks of medical leave available under the FMLA. Specifically, the Seventh stated that, “The ADA is an antidiscrimination statute, not a medical-leave entitlement.” The Court also reasoned that the goal of an ADA accommodation is to allow disabled employees to perform the essential functions of their jobs, not to excuse them from working and that “a multi month leave of absence is beyond the scope of a reasonable accommodation under the ADA.”

The United States Court of Appeals for the 3rd Circuit has affirmed a New Jersey District Court’s decision denying post-trial motion for judgment by Walmart after the jury entered a verdict against them in favor of a former employer.  The former employee, Barry Boles, claimed that he was unlawfully terminated by Walmart in retaliation for taking medical leave because of his disability.  The jury agreed, and found Walmart liable for back pay damages in the amount of $130,000, emotional distress damages in the amount of $10,000, punitive damages in the amount of $60,000 and attorney fees and costs in the amount of $200,000.  Walmart appealed the decision to the Court of Appeals.

In this case entitled, Barry Boles v. Wal-Mart Stores, Inc., the employee Mr. Boles had worked for Walmart for many years.  Mr. Boles first went out on a medical leave on May 8, 2011, after going to the emergency room for a large blister on his leg.  The large blister progressed into a five or six inch ulcer requiring Mr. Boles to take an extended medical leave of absence.  Walmart eventually placed Mr. Boles on medical leave pursuant to the Family and Medical Leave Act from June 22, 2011 through September 10, 2011.  During his FMLA leave, Mr. Boles’ treating doctor provided a certification that advised Walmart that Mr. Boles would not be able to return to work until October/November, 2011.

On October 23, 2011, Mr. Boles returned to work, but learned that he could not log onto his computer.  Mr. Boles attempted to reach out to the Market Human Resource Manager, Quawad McDonald, to find out his status, but his attempts were ignored by Mr. McDonald.  Finally, on or about October 29, 2011, Mr. Boles received a letter from Mr. McDonald advising him that he had been terminated as of October 25, 2011 for “failure to return” to work.

The United States Court of Appeals for the Seventh Circuit reversed a District Court’s grant of summary judgment in an action alleging TIN Inc. (“TIN”) violated the Family Medical Leave Act (“FMLA”) by interfering with an employee’s right to take leave and retaliating against that employee. The Seventh Circuit reversed the District Court’s decision that TIN terminated Mr. Jeff Pagel’s employment due to his poor performance rather than for his taking of FMLA protected leave. The Court determined that there were still genuine issues of material fact as to why Mr. Pagel was terminated. Therefore, the grant of summary judgment in TIN’s favor was reversed and the case was remanded for further proceedings.

Jeff Pagel worked for TIN as an outside salesman from May 2000 until his termination in October 2006. Mr. Pagel produced at least $7 million dollars in sales for the company per year, earning a $180,000 annual salary. On January 1, 2006, TIN instituted a new policy that required outside salesmen to submit daily activity reports to their Regional Sales Manager. Salesmen then would be given a periodic evaluation that included an assessment of their compliance with this new reporting system.

In July 2006, Mr. Pagel experienced several health problems and disabilities including being diagnosed with septal wall ischemia (a blockage in a portion of his heart). Mr. Pagel’s health problems caused him to take a medical leave of absence from work. On August 29, 2006, Mr. Pagel underwent an angioplasty and stent replacement, spent one day in the hospital and was advised to rest for several days following the operation. The next week Mr. Pagel’s symptoms returned and he was admitted to the hospital for two nights. It was determined that Mr. Pagel also had an irregular mass in his left lung that was unrelated to his septal wall ischemia.

The New Jersey Appellate Division recently reversed in part and affirmed in part a grant of summary judgment dismissing Plaintiff’s failure-to-accommodate under the New Jersey Law Against Discrimination and retaliation claims. The Court agreed with the prior determination that after Plaintiff had exhausted her Family and Medical Leave Act benefits and she could not provide a definite date of when she could return to work she was not entitled to an “indefinite leave of absence.” However, the Court disagreed with the prior determination that Plaintiff failed to establish a prima facie case of retaliation because there was only indirect evidence that Defendants had knowledge of her involvement in a co-worker’s discrimination lawsuit.

In Lozo-Weber v. State of New Jersey, the Plaintiff, Ms. Lozo-Weber, was employed by the Department of Human Services and worked as an occupational therapist at the New Lisbon Development Center from November 2003 through April 2009. Ms. Lozo-Weber, a Caucasian female, witnessed what she thought to be discriminatory actions being taken against her co-workers by direct supervisor Brian Kelly and Beth Cooper, who acted as a liaison between Kelly and the other workers. From August 2004 to the time Mrs. Lozo-Weber went on maternity leave and disability for lupus, she observed the firing and relocation of various staff members who were African American or Asian. In addition to her own belief that supervisors’ actions were racially motivated, Mrs. Lozo-Weber was told that she “needed to align herself with the right side” when she addressed her concerns about the relocation of certain minority employees.

After Mrs. Lozo-Weber returned from maternity leave, she acted as a witness in a co-worker’s lawsuit against the Department of Human Services, New Lisbon Development Center and supervisors Kelly and Cooper. She then began to receive negative comments about her performance when prior to her involvement as a witness; she had received consistently stellar performance evaluations. Despite the negative comments, Mrs. Lozo-Weber continued to receive positive performance evaluations until January 9, 2008. On that date, New Lisbon Development Center issued a preliminary notice of disciplinary action against Mrs. Lozo-Weber that charged her with neglect of duty, falsification and actual or attempted theft of State property. After a hearing, all the charges were dismissed and Mrs. Lozo-Weber was awarded back pay.

The United States Court of Appeals for the Third Circuit recently held that an individual supervisor may be liable for violating the Family and Medical Leave Act if he or she has sufficient control over the conditions and terms of employment of the employee claiming the FMLA violation. In the matter of Haybarger v. Lawrence County Adult Probation and Parole, County of Lawrence and William Mancino, the Third Circuit found that a supervisor is an “employer” under the FMLA despite the fact that the supervisor did not have the authority to terminate the employee.

In this case, the plaintiff, Debra Hayberger, worked as an office manager for the Lawrence County Adult Probation and Parole which is an agency of the Lawrence County Court of Common Pleas. Ms. Haybarger suffered from Type II diabetes, heart disease and kidney problems, which frequently required her to take medical leave from work. Ms. Haybarger’s supervisor, William Mancino often criticized Ms. Haybarger for taking the medical leave, including writing that she needed “[t]o improve her overall health and cut down on the days that she misses due to illness” in her annual performance evaluations.

In 2004, Mr. Mancino placed Ms. Haybarger on a six-month probationary period because of Ms. Haybarger’s conduct, work ethic, behavior, lack of leadership and supervisory skills. After the six months, Mr. Mancino stated that Ms. Haybarger’s employment did not improve and he made a recommendation to Judge Motto that Ms. Haybarger be terminated. Judge Motto agreed with Mr. Mancino’s recommendation and terminated Mr. Haybarger’s employment.

The New Jersey Appellate Division recently affirmed a Board of Review and Appeal Tribunal decision denying a claimant from receiving unemployment benefits. In an unpublished decision, the Appellate Division held that the claimant, Rolando Montero, left his work voluntarily because of illness and did not keep in touch with his employer or provide them medical documentation. As a result, the claimant was disqualified from receiving unemployment benefits.

Mr. Montero had been employed with the Institute of Nutrition and Natural Health from February 1, 2005 until January 23, 2009. Mr. Montero worked primarily in the company’s New York store, but also worked temporarily in the New Jersey store. In November, 2008, Mr. Montero was unable to work as a result of illness, which caused him to travel to Cuba to receive medical treatment. It is unknown from the opinion exactly what the illness was that Mr. Montero was suffering. In January, 2009, the Institute of Nutrition and Natural Health closed its New York location, which Mr. Montero took as his termination. Mr. Montero testified that he did not speak with his employer and found out of the store closing from his wife who had also worked for the Institute of Nutrition and Natural Health.

The President and Owner of the Institute of Nutrition and Natural Health testified that she asked Mr. Montero for documentation regarding his illness several times and he failed to provide same. She also testified that she was aware that he gone to Cuba and that although she fired Mr. Montero’s wife, she never terminated Mr. Montero’s job and that it remained open to him.

Congresswoman Lynn Woolsey recently introduced the Domestic Violence Leave Act, which if passed, would expand the federal Family and Medical Leave Act (“FMLA”) to provide eligible employees the right to take unpaid leave from work if he or she or a family member fall victim to domestic abuse, sexual assault or stalking.

The FMLA requires that certain employers provide up to 12 weeks of job protection with continued group health covered to eligible employees. In order to be subjected to the FMLA, a private employer must have 50 employees during 20 or more calendar workweeks in the current or proceeding year. Public employers are subjected to the FMLA regardless of the number of employees. In order for an employee to be eligible for FMLA protection, he or she must have been employed for at least 12 months and must have worked at least 1,250 hours for the preceding 12 months for the employer. If the employee meets the eligible requirements, he or she is entitled to take unpaid leave from work for the birth or adoption of a child or a serious health condition. The FMLA also permits an employee to take unpaid leave from work to care for a family member who is suffering from a serious health condition. At the end of a FMLA protected leave, the employer must restore the employee to the same or equivalent position with equivalent benefits, pay and job status. The FMLA prohibits the employee from interfering with or retaliating against the employee for needing or taking FMLA leave.

The Domestic Violence Act seeks to expand FMLA to permit eligible employees the right to take unpaid leave as a result of domestic abuse, sexual assault or stalking. The bill would also permit an employee to take unpaid leave from work so that they can care for a family member who is a victim of domestic violence, sexual assault or stalking. The employee would be able to use the leave for a variety of reasons relating to the domestic violence such as to seek medical attention for sustained injuries, seek legal assistance or remedies, participate in legal proceedings, attend support groups, obtain counseling and participate in safety planning.