TEEOCA March 3rd Lunch & Learn

8/14/2019 TEEOCA March 3rd Lunch & Learn

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“Lawsuit or No Lawsuit:

How To Avoid Seeing YourEmployees Win Big In

Court”

“Lawsuit or No Lawsuit:

How To Avoid Seeing YourEmployees Win Big In

Court”

Randall Snapp

Tulsa Equal EmploymentOpportunity Coordinators

AssociationMarch 3, 2010



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Question No. 1:Question No. 1:An employee was transferred to another city shortly after she

became pregnant. Employee alleged that her transfer did not allow

her to use the skills she had developed in her previous job. Thecompany contended that the transfer was a promotion, with a pay

raise and included more responsibilities. Two months after the

transfer, the employee entered the hospital due to pregnancy

complications. She was placed on FMLA leave and her short term

disability leave ran concurrently with FMLA leave.



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Question No. 1 cont’d:Question No. 1 cont’d:

She did not return to work within the 12 weeks allowedfor FMLA and the short term disability policy only

provided protection for 180 days. Employee did not

request to be reinstated to work until after 199 days of

leave. At that time she was told that all leave hadexpired and she would not be reinstated. She sued for

pregnancy discrimination. Will she succeed?



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Answer to Question No. 1:Answer to Question No. 1:

No, according to the 7

th

Circuit Court of Appeals in LaFary v.Rogers Group, Inc. (January 12, 2010). The Court held thatPlaintiff must prove that the employer knew she waspregnant, that she suffered an adverse employment actionand that similarly situated employees outside her protectedclass were treated more favorably. The Court found that the

employee could not prove that the company knew that shewas pregnant when it decided to transfer her to another city.The Court said it was a close question whether the transfer was an adverse employment action, but did not need toanswer that question since they found there was no proof of notice. Finally, the Court concluded that the termination was

not illegal discrimination because the company acted inaccordance with its policies and because employee couldnot point to a similarly situated non-pregnant employee whowas treated differently.



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Question No. 2:Question No. 2:

A television producer for the Montel Williams show was

terminated shortly after she had surgery for a brain aneurysm.CBS Studios claimed that Montel Williams had complainedabout the employee as early as October, 2006 and that thedecision to terminate employee was made well in advance of her surgery based upon Mr. Williams’ dissatisfaction withemployee’s show ideas following a meeting in January, 2007.

CBS claims that it did not immediately terminate her contract atthat time because it did not want to “pay her out” for the weeksremaining on her contract for that season.



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On March 29, 2007 the employee had emergency surgeryfor a brain aneurysm and did not return to work for theremainder of season. She was cleared by her physician toreturn to work prior to the commencement of the nextseason. In May, 2007, employee met with her supervisor

who told her that her contract was not being renewed for the next season because the show needed someone “atthe top of their game” and someone who could “handle thepressure” of the job. Employee sued. Will she be allowedto proceed with her cause of action?



Answer to Question No. 2:Answer to Question No. 2:

Yes, according to the United States District Court for theSouthern District of New York in Primmer v. CBS Studios,Inc. (September 8, 2009). The Court concluded that theemployee could proceed to trial on the issue of whether shewas “regarded as disabled” under the Americans with

Disabilities Act. The Court found a fact question as to whenCBS actually decided to terminate her contract. The Courtfound a lack of any documentation regarding her performance issues and that the comments made to her inthe May 2007 meeting would allow a reasonable jury to

conclude that the decision not to renew her contract wasmotivated, at least in part, on a perceived disability.




A store manager claimed that her supervisor rubbed her

shoulders and back at times during her training sessions,called her “baby doll” during a telephone conversation,accused her of not wanting to be “one of my girls,”suggested during a long distance telephone call that sheshould be “in bed with me and a mai tai in Florida,” andinsinuated that she could go far with the company if shegot along with him. Following these statements, thesupervisor promoted the employee to manage a store.The employee was later terminated and she claimed thatthe termination was as a result of her reportingmanagement discrepancies in accounting procedures for cash register shortages. She sued for sex discrimination,hostile work environment and wrongful termination. Willshe be allowed to proceed with her claims?



Answer to Question No. 3:Answer to Question No. 3:No, according to the 8th Circuit Court of Appeals in

Anderson v. Family Dollar Stores of Arkansas,Inc. (September 1, 2009). The Court found that

the alleged harassment was not severe and

pervasive enough to affect a term, condition, or

privilege of employment and did not create anabusive work environment. The Court also found

that there was no quid pro quo sexual

harassment because the employee did not allege

that she suffered any adverse employment actionas a result of declining any implied or inferred

demand for sexual favors.




A long term employee for Boeing Company was nothired by the new company who purchased Boeingdue to the recommendation of his former supervisor at Boeing. The employee showed that each of thereasons given by the supervisor for recommending

that the employee not be hired were contradicted bystatements made in the employee’s last performancereview. In addition, the employee established thateach of the individuals who were not recommendedby the supervisor were at least 48 years old.




The employer responded that employee was notrecommended for rehire because he had not been

creating designs on software for 20 years but only

reviewing the work of others, and that the younger

employee who was recommended for the relevantposition had greater skills and slightly higher marks

on the most recent performance evaluation.

Employee sued. Will he be able to take his claims to a

jury?



Answer to Question No. 4 :Answer to Question No. 4 :

Yes, according to the 10th Circuit Court of Appeals inWoods v. Boeing Company (December 8, 2009). TheCourt found that there was sufficient evidence that thecompany’s reason for recommending against rehire werepretext for discrimination. Specifically, the company found

that the stated reasons for not recommending rehire wereinconsistent with the statements made on the employee’smost recent performance review. The Court noted that theyounger employee’s marks were only slightly higher thanthe employee’s, to the point that the differences werenegligible and that there was no proof that a newemployer would require the ability to create designs rather than just checking them.



Questions?



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Presented by:

Randall J. SnappCrowe & Dunlevy

(918) 592-9855

[email protected]

mailto:[email protected]

mailto:[email protected]

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TEEOCA March 3rd Lunch & Learn