October Legal Roundup: Is Employee With Down Syndrome Entitled to Blanket Protection

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


Disability Discrimination | National-Original Discrimination | Religion Discrimination | Age Discrimination | Family and Medical Leave Act

Disability Discrimination

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Grocery Store Employee’s Profane Outbursts Do Not Have to Be Accommodated.

Photo by Shutterstock

A grocery bagger with Down syndrome had a number of performance issues regarding following policies, work rules and procedures. The company accommodated with forbearance from discipline, providing a job coach, extra training, etc. The forbearance included not firing the employee for unauthorized taking of products, and for an angry outburst toward other workers.

The employee then had an angry, profane outburst toward a cashier in front of all of the customers. He was fired.

In the Americans With Disabilities Act case, the court ruled that the employer had made repeated accommodations. It was not required to tolerate ongoing abusive behavior toward others as a form of accommodation. All employees should be required to abide by the employer’s anti-harassment policy.

Reeves v. Jewel Food Stores, Inc. (7th Cir., 2014)

In a similar but more overt case, the court found that a medical center did not have to accommodate an X-ray technician’s death threats against his supervisor. “Nothing in the ADA requires an employer to tolerate serious misconduct, even if it results from a disabling mental illness.”

The employee denied he made the threats. However, there were several signed witness statements verifying that he did.

The employer had a good faith, non-discriminatory belief that he violated its policies on threatening behavior.

Williamson v. Bon Secours Richmond Health System, Inc. (E.D. Va., 2014)

Instant Accommodation Not Required.

An attorney for a state Department of Justice developed an orthopedic disability that seriously impaired her ability to walk. She requested the accommodation of a reserved parking space at the Department of Justice building, rather than the staff parking lot two blocks away. There are only six on-site spaces, reserved for senior department heads.

However, the Department of Justice told her that it would consider the request. (Someone else would have to be bumped out of his/her spot.) In the meantime, she could have exclusive use of the handicapped parking slots by the building as the accommodation request was being considered. The attorney rejected this and filed suit for failure to accommodate.

The court granted summary judgment against her, finding that she had unreasonably ended the interactive process. The court found the attorney had engaged in a “I want what I want now” demand. Her insistence on immediate and unconditional granting of exactly what she demanded was responsible for breakdown of the process.

[Reasonable accommodation requires discussion, give and take. An employee is not entitled to any accommodation he or she requests. The employer may implement any accommodation which reasonably meets the needs of the person to accomplish the job. The employer has the right to choose among viable accommodations and select the one that also best meets the organization’s operational needs. It has the right to reasonably study and consider the accommodation request and alternatives before deciding.]

Feist v. State of Louisiana, Department of Justice (E.D. La., 2014)

Attorney Resigned Rather Than Submit Verifying Medical Information.

A Department of Veterans Affairs legal counsel informed the agency that she had chronic lymphedema, requiring daily treatment, and requested to work from home on a full-time basis.

Management met with her to discuss the request and asked for more medical information to help them determine the most appropriate accommodation. However, the attorney resigned rather than supply more documentation. She then sued under the Rehabilitation Act.

The court dismissed the complaint. It found the agency engaged in “good faith dialogue” and the employee prematurely cut off the interactive process.

Ward v. McDonald (D.C. Cir., 2014)

Missing Evidence Forwards Case to Trial.

A school band director’s case of disability discrimination can proceed to trial.

He requested accommodations for Attention Deficit Hyperactivity Disorder. At the school district’s request, he submitted medical information. He was then placed on a Corrective Action notice and fired three months later without any accommodations being implemented. The district claimed that his medical information was inadequate, thus the accommodations were not made. However, the district could not produce the communication informing the band director of any deficiencies in his medical documentation.

This missing evidence was enough for the court to conclude the school district may have been responsible for a breakdown of the required interactive process and resulting failure to accommodate.

Gilreath v. Cumberland County Board of Education(E.D. N.C., 2014)

National-Origin Discrimination

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Chinese Professor Refused to Foster Anti-Japanese Discrimination.

A professor of Chinese origin received a favorable review for tenure. Then her department chair, also originally from China, sent her a very derogatory email regarding Japanese, with a message that the department chair “hated Japanese deep in her bones.” The chair asked the professor to forward the derogatory email to other contacts in the Chinese community.

The professor refused, claiming the message was discriminatory. The chair then sent an email labeling the professor as a “betrayer,” and tenure was denied.

In the ensuing Title VII case, the court found ample evidence for a retaliation case based on national origin and opposing discrimination.

Li v. Jiang, et al. (N.D. Ohio, 2014)

Religion Discrimination

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Court Reverses Jury Verdict. Employee Did Not State a Valid Foundation for Refusal to Say the Rosary.

A nursing home fired an aide when she refused to assist when a patient asked for help in saying the Rosary. The aide, a Jehovah’s Witness, was awarded $70,000 for religious discrimination.

The 5th Circuit Court of Appeals reversed. It found insufficient evidence to support the verdict.

All employees were required to assist in patients’ faith-based needs, as well as physical and other psychological needs. When requested to help the patient, the aide told a co-worker, “I’m not Catholic,” and did not help. She had four prior disciplines for false statements, petty theft from a patient, and attendance. She was fired for this fifth infraction, refusal to perform duties.

However, she never told management that she was a Jehovah’s Witness, and never told management how or why her faith would prohibit her assisting in the Rosary reading. Thus, she did not create a valid basis upon which a reasonable accommodation was required to be considered.

Nobach v. Woodland Village Nursing Center, Inc. (5th Cir., 2014)

Age Discrimination

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Age Statements Make Case.

A school district replaced a 62-year-old guidance counselor with a brand new college graduate who is 37 years younger. It cited serious performance deficiencies as the reason.

However, in the months leading up to the counselor’s nonrenewal, the superintendent asked the counselor if he was planning to retire and told him he might not be renewed “because we have two good young counseling interns,” one of whom ended up being the replacement.

Dunn v. Lyman School District (D. S.D., 2014)

Family and Medical Leave Act

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Error in Calculation.

A hospital surgical technician requested FMLA for an ongoing serious medical condition (that was also a disability). The hospital granted the leave until Sept. 30.

Later, though, HR realized an error had been made, and FMLA rights only went until Sept. 21. A phone message was left for the employee on leave, “Please contact us about your leave.” She did call back and leave a message. No one returned her call. A certified letter was sent informing her of the date error, but there was no proof of receipt, and she was at a different location from her residence during her FMLA recuperation.

Sept. 21 came, she did not return, and she was fired. She did return on Sept. 30, but was informed she had been terminated. She sued under the FMLA and ADA.

The court ruled in the employee’s favor. Not only did the hospital misinform her and create reasonable reliance under the FMLA, it also violated the ADA by failing to engage in the interactive process for considering additional leave once FMLA was exhausted.

Baxter v. Spring Valley Hospital & Medical Center (D. Nev., 2014)

In a similar case, the court found in favor of an employee because the employer claimed it sent a notice regarding date of required return to work, but could not prove the employee on leave ever actually received it.

Lupyan v. Corinthian Colleges Inc. (3rd Cir., 2014)

Theft of Baby Formula Justified Discharge While Employee Was on Leave.

A medical-clinic employee brought suit because she was fired while still on FMLA for birth of a baby. The clinic defended by claiming the employee visited the clinic while on leave and took home six cases of baby formula and other baby supplies without permission.

The court granted summary judgment for the clinic. The employee “should not be shielded from wrongdoing simply because she was on FMLA leave.”

Bloom v. Group Health Plan, Inc. (D. Minn., 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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