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Discipline or Terminate?

February 24, 2014

By Anthony Kaylin, SBAM Approved Partner ASE

Here are a few fun cases (for us, if not for the people involved) to challenge your command of HR law. Each was decided or in process of being decided before a court or agency (federal or state) that either affirmed an employee discipline or termination or reversed it.  

What do you think happened in each one of these situations? Answers are provided below.

1. The employee was the primary caregiver for her mother who was suffering from end-stage congestive heart failure. The Fairygodmother Foundation (akin to Make a Wish) granted the mother a six-day trip to Las Vegas.  The employee asked for FMLA leave, and her employer denied her FMLA leave to go on vacation.  The employee went on the trip anyway and was terminated for being on unauthorized leave. Affirmed or Reversed?

2. An 80-year old (and 35-year tenured) employee was fired by a Catholic diocese  after being told for months that she should retire and that “she needed to spend more time with her retired husband.”  Affirmed or Reversed?

3. Employee worked for the hospital from 1984 until 2009 in various positions. During her last five years there, she weighed around 300 pounds, and her supervisor allegedly made “several derogatory remarks about her weight,” including telling her in May 2009 that her “big fat ass needs to concentrate on losing weight or something to that effect.”   Employee was then allegedly caught filling out a false time sheet, after which she was terminated. Affirmed or Reversed?

4. A female job applicant applied for a position in a hair salon, but she was denied a job after she informed the salon manager she was pregnant. Affirmed or Reversed? 

5. An applicant for a position as a customer-service representative for a telesales company was offered employment conditioned on her passing the company’s reference and background checks and a drug screen, per policy. The applicant, who had already started attending training for the position, submitted to the drug screen and tested positive for marijuana. The applicant informed the company that she suffered from debilitating migraine headaches and used medical marijuana at home, as prescribed by her doctor, which was legal under Washington’s Medical Use of Marijuana Act (MUMA).  The offer was revoked even though there was no evidence that the employee was under the influence of marijuana at work or that her work would have been affected in any way. Affirmed or Reversed? 

Okay. Now the answers:

1. Reversed.  The court held unanimously that such a trip could be covered under the FMLA’s provisions that allow employees to care for seriously ill family members, and the court noted that the FMLA is to be broadly interpreted. The Court also specifically noted that the mother needed physical assistance for her daily health care due to her congestive heart failure, and the employee continued to provide that care while on vacation.  Ballard v. Chicago Park District, No. 13‐1445 (7th Circuit Court of Appeals, 1/28/14)
Likely affirmed—though not yet decided. Although the case is newly filed, the words that she “should retire” may not be deciding even though this is an age discrimination case. However, it should never have been stated in the first place.  If she was required to do work that she couldn’t otherwise do, that would be controlling.  Rucci v. The Roman Catholic Diocese of Harrisburg, No. 1:2014cv00086 (Pennsylvania Middle District Court, 1/17/14)

2. Affirmed. In the court’s view the allegation of “several derogatory remarks” was not detailed enough to find a link between the comments and the termination. There were no allegations that her weight affected her performance. As to the more specific “big fat ass” remark, it was purportedly made five months before the termination. She was actually terminated for filling out false time sheets. Luster-Malone v Cook County, No. 11 cv 09227 (U.S. District Court, N.D. Illinois, 12/12/13)

4. Reversed. This case should have been an easy one.  The Pregnancy Discrimination Act prohibits employers from subjecting women to discrimination due to pregnancy. The EEOC filed suit in Georgia and the case settled before trial.  J.C. Penney Corporation agreed to pay $40,000 to settle the pregnancy discrimination suit.

5. Affirmed.  Medical marijuana is an affirmative defense in a criminal proceeding but still an illegal drug. The company was entitled to withdraw an offer to an applicant who fails a drug screen.  Roe v. Teletech Customer Care Management, No. 38531-7-II. (Washington Supreme Court, 2011)

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