June Legal Roundup: Fired for Eating a Bag of Potato Chips


Here’s the latest on some employment-related legal cases that have gone before the courts:

Disability Discrimination | Sexual Harassment | Racial Discrimination | Religion Discrimination | Age Discrimination | Family and Medical Leave Act | Affirmative Action Rules

Disability Discrimination

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Was “Grazing” a Theft or an Emergency Necessity

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A diabetic employee, with 18 years service, was fired for violating the “grazing” policy when he ate a small bag of potato chips off the shelf. Walgreens loses more than $350 million a year from worker theftoften in very small amounts per instanceand has a zero-tolerance policy. The employee alleged he had a hypoglycemic emergency and believed he needed something to eat before he passed out. He also states that he immediately then tried to pay for the chips, but there is a special process for employee payment and no one was there to approve the pay. Walgreens did not credit his “excuse” and fired him. The EEOC took the case claiming the company failed to engage in the interactive process and consider reasonable accommodation for a good-faith disability reason for rule violations. The court agreed, finding a valid basis for allowing the case to go to a jury for decision.

Equal Employment Opportunity Commission v. Walgreen Co. (N.D. Cal.)

Withdrawal of Late-Arrival Accommodation Was Unreasonable.

A disabled chemical engineer’s medications rendered her less than able for the first few hours of the morning. She could not adequately function at the standard 8 a.m. start time, so she was given a 10 a.m. start accommodation. (She then worked later than others.) Her performance met or exceeded expectations during the two years the accommodation was in effect. Then a new supervisor insisted on a standard work schedule for all employees. The chemical engineer again requested the 10 a.m. accommodation. She was granted a 9 a.m. accommodation, but that did not allow sufficient time for her medications. She was then fired due to not being able to show up on time and function. The court found violation of the Americans With Disabilities Act. The company could show no “undue hardship” regarding the 10 a.m. accommodation, since it had a two-year history of accommodating with no evidence of any hardship at all. The court found the 9 a.m. accommodation as an “ineffective half step” which it knew did not meet the employee’s medication situation.

Isbell v. John Crane, Inc. (N.D. Ill., 2014)

Full-Time to Part-Time May Violate ADA.

A medical center cut the hours of a long-term employee with Crohn’s disease, from full-time to part-time, making her ineligible for medical-insurance benefits. She claimed this was an ADA violation, in an attempt to limit medical expenses due to her disability. The court agreed, allowing the case to go to a jury. There was evidence of pretext. The medical center claimed it needed to “reorganize” and a full-time position was not needed. However, both her supervisor and the chief financial officer testified that the job required a full-time employee. The supervisor stated strong disagreement before the decision was implemented. (Then that supervisor was disciplined for not supporting the company’s position.)

Quillen v. Touchstone Medical Imaging LLC (M.D. Tenn., 2014).

Lawyer Cannot Require a “Shadow.”

A state civil-service attorney with cerebral palsy was denied the accommodation request of a full-time personal assistant to function as his “shadow.” The agency had granted 30 requests for accommodation in the first year of employment before he requested a full-time assistant to help him with many of the legal duties of analysis, legal writing and working with others. Under the ADA and state law, the court found the request to be unreasonable. An employer is generally not required to hire and pay two people to do one job. Further, the attorney is supposed to do essential functions of the job, and the assistant is not supposed to substitute for the role the person is hired to accomplish.

In Re: E.H. (N.J. Superior Ct., 2014).

Sexual Harassment

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HR Manager’s Restroom Incident Creates Case.

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A female HR manager at an auto dealership allegedly became angry when a male employee made a critical comment about a work issue. She started yelling at him. He walked away and went into the men’s restroom. She followed him in and continued yelling as he used the restroom, fully exposed. There were also other male employees standing there exposed in the process of using the restroom. The male employee made a complaint of sexual harassment and improper behavior. He was then fired soon after. He filed a case of harassment, retaliation and whistle blowing. The court found no sexual harassment. The HR manager’s behavior was due to inappropriate anger, but was not based on the gender of the employee who criticized her. However, a harassment complaint is a protected activity, and given protection from retaliation. Also, the complaint about the HR manager’s restroom behavior fit within the Hawaii state whistleblower statute. The discharge so soon after his complaints created a viable case for both Title VII retaliation and whistleblower retaliation.

Onodera v. Kuhio Motors Inc.(D. Ha., 2014)

Racial Discrimination

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Two Wrongs Do Not “Even Out.” HR Manager’s Racial Bias and Unequal Treatment Create Case.

Both the plaintiff and the defendant engaged in inappropriate racial behavior. Rather than “equalizing,” the situation created a case for comparative discriminatory behavior and retaliation. An African-American human-resources specialist reported that the white HR department manager stood by, without any effort to correct or even comment, while a company employee commented that Black applicants and the company’s Black employees were all “dumb and lazy.” Thereafter, the HR manager told other employees that he was “p—– off” that the conversation had been reported, and he would find a way to fire “that n—–” for trying to “burn him.” Subsequently, the African-American HR specialist made a racially improper statement of his own when telling another African-American employee that she should spend more time with other Black employees rather than white. She was offended and reported his comments. The HR specialist was fired. In the resulting case the court found that the HR manager’s comments were retaliatory. The HR manager’s tolerance of comments may have been equal to the specialist’s comments, but the manager went to a far worse level in his own use of a racial slur. Rather than the specialist’s behavior justifying discharge, it just illustrated the disparity between the non-action against the white manager who had apparently engaged in worse behavior, with no consequences.

Willis v. Cleco Corp. (5th Cir., 2014)

Religion Discrimination

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$1.6 Million for Religious Harassment.

A lesbian chef won $1.6 million under state discrimination laws. The restaurant owner imposed his personal religious values on employees. Weekly prayer meetings were required. He gave sermons on homosexuality as a sin and said that “gay people are going to hell.” The chef objected and refused to attend the meetings. The owner told her she needed to change her lifestyle and continued to preach at her as she worked, outside of the prayer meetings. She quit and sued for constructive discharge and harassment, and won.

Salemi v. Gloria’s Tribeca Inc. (N.Y. App. D., 2014)

Age Discrimination

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Job Elimination Was a Sham.

A company reorganized and eliminated the position of a 62-year-old worker, stating that the position was unnecessary. It claimed it did not replace the employee. However, the evidence showed that a younger employee kept his original job title but changed his actual duties to fill the older worker’s position and day-to-day responsibilities. This created a prima facie case of age discrimination and pretext under the ADEA and Tennessee Human Rights Act.

Pierson v. Quad/Graphics Printing Corp.(6th Cir., 2014)

Family and Medical Leave Act

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Doctor’s Advice to “Go Fishing to Reduce Stress” Did Not Include Taking FMLA to Compete in Professional Bass Tournaments.

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A state Department of Natural Resources deputy director had a stress disorder. His doctor told him to relax more and engage in relaxing activities to reduce stress, including fishing. The deputy director then started scheduling Family and Medical Leave Act time (three months in all) so he could go and compete in professional bass-fishing tournaments. He won $31,000 overall. This was discovered by the press and reported to the state. The deputy director claimed that the department knew he had been advised to “go fishing” and other relaxing activities, so it was a valid use of FMLA. The state asked for his resignation for abuse of FMLA. This included violation of its FMLA policy provision that forbids engaging in other employment while on FMLA. The court ruled for the department. “Go fishing” was not a prescription to engage in professional competition on paid sick leave. The amount of winnings constituted “other employment.” It is questionable whether highly competitive multistate professional events fit the category of “relaxing” within the meaning of the doctor’s advice.

Travis Lloyd and Illinois Department of Natural Resources (2014)

May Not Request Doctor’s Note for Each Instance of Intermittent Leave.

A company policy violated the FMLA when an employee was required to give a doctor’s excuse for each instance of leave for his daughter’s medical condition and for his own gastric ulcer and bleeding medical conditions. The doctors had provided the initial FMLA medical certifications, but the company insisted on a note each time verifying the cause. (The policy was based on prior instances of other employees abusing FMLA with a pattern of Friday/Monday absences.) After 11 notices, the employee’s doctor refused to give more notes, claiming the policy was abusive, disruptive of the medical practice, and contrary to best treatmentforcing the already ill employee to have to go through extra stress. The employee was then subjected to a series of disciplinary suspensions for unauthorized absence. The court found that the policy and practice violated FMLA. Recertification or verification of a medical condition may not be required in less than every 30 days and then only if there is tangible evidence to doubt the validity of the certification.

Oak Harbor Freight Lines, Inc. v. Antti (D. Ore., 2014)

Affirmative Action Rules

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Court Upholds OFCCP Disability Goal.

A construction contractors association challenged the new Office of Federal Contract Compliance Programs requirement for a 7 percent goal to hire disabled people. The court rejected the suit, finding the rules were valid. The OFCCP did not exceed its rulemaking authority. The OFCCP goals do not require 7 percent hiring; this is a “goal,” not a quota. It requires only a reasonable good faith effort to try, which should not impose an undue burden on an employer. (The Equal Employment Opportunity Commission’s increasingly broad definition of what is a “disability” should make it easier and easier for a contractor to hire disabled people.)

Associated Builders & Contractors, Inc. v. Shiu (D. DC., 2014)

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached atrgregg@boardmanclark.com.

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