Patton v. Jacobs Engineering Group, 2017 U.S. App. LEXIS 21028 (5th Cir. 2017)
Disability Discrimination-Sufficiency of Charge to EEOC-Failure to Accommodate
The Fifth Circuit withdrew its prior opinion and substituted this opinion. The court affirmed the district court’s grant of summary judgment against plaintiff on his failure to accommodate and hostile work environment claims. The court held that plaintiff’s failure to accommodate claim could reasonably be expected to, and in fact did, grow out of his charge of discrimination; there was insufficient evidence to prove defendants’ knowledge of plaintiff’s disability where defendants did not attribute plaintiff’s limitation — sensitivity to noise — to a physical or mental impairment; a jury could find that the harassment plaintiff experienced was sufficiently severe or pervasive to alter the terms and conditions of his employment; but, because plaintiff did not challenge on appeal the district court’s determination that he unreasonably failed to avail himself of the procedures set forth in the anti-harassment policies maintained by defendants, he forfeited his objection to this determination.
Borzilleri v. Mosby, Docket No. 16-1751 (4th Cir. 2017)
First Amendment-Support of Candidate-Policymaker
Plaintiff filed suit alleging that defendant fired her for supporting defendant’s political rival, and thus violated plaintiff’s First Amendment rights. The Fourth Circuit affirmed the district court’s determination that, as an Assistant State’s Attorney, plaintiff was a policymaker exempt from the First Amendment’s protection against patronage dismissals. The court reasoned that to hold otherwise would undermine the public mandate bestowed upon the victor of a hard-fought election and would needlessly interfere with a state official’s managerial prerogative.
Mullendore v. City of Belding, Docket No.16-2198 (6th Cir. 2017)
FMLA-Termination for Other Reasons
Mullendore served as City Manager, beginning in April 2013. During her tenure, she was involved in political disputes and a newly-elected city council member advocated termination of her at-will employment. On January 6 2015, she gave notice that she would be taking time off due to a surgery, scheduled for January 15, indicating that she would be able to work remotely while recovering. The city purchased a laptop for her use in working from home. Mullendore stated that she would not seek medical leave and declined to complete the city’s Family and Medical Leave Act paperwork. While she was recovering, the city council voted to terminate her employment, citing her role in causing political strife in the community. She sued under the FMLA. The district court granted summary judgment to the defendants, holding that Mullendore had not given sufficient notice that she would be taking FMLA leave and that the defendants also provided a non-discriminatory reason for the termination. The Sixth Circuit affirmed. An employee lawfully may be dismissed, preventing him from exercising his statutory rights to FMLA leave or reinstatement, if the dismissal would have occurred regardless of the employee’s request for or taking of FMLA leave.
Severson v. Heartland Woodcraft, Inc. Docket no. 15-3754 (7th Cir. 2017)
FMLA- ADA Interaction
From 2006-2013, Severson worked for Heartland. The work was physically demanding. In 2013, Severson took a 12-week medical leave under the Family Medical Leave Act (FMLA), to deal with serious back pain. On the last day of his leave, he underwent back surgery, which required that he remain off of work for another two or three months. Severson asked Heartland to continue his medical leave, but he had exhausted his FMLA entitlement. The company terminated his employment but invited him to reapply when he was medically cleared to work. When Severson’s doctor cleared him to resume work, Severson did not reapply but sued under the Americans with Disabilities Act, 42 U.S.C. 12101. The district court awarded Heartland summary judgment. The Seventh Circuit affirmed. The Court stated that the ADA is an anti-discrimination statute, not a medical-leave entitlement. The Act forbids discrimination against a “qualified individual on the basis of disability.” A “qualified individual” with a disability is a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position.” The term is limited to measures that will enable the employee to work. An employee who needs long-term medical leave cannot work and is not a “qualified individual.” Editors note: Although, it might not have made this court any difference, if Severson had asked for a limited shorter time off & furnished a medical note that he probably could have returned within that time; the EEOC regs & some cases permit this.
Owens v. Board of Education of Chicago, Docket No. 16-3607 (7th Cir. 2017)
Retaliatory Discharge-Age Discrimination
Owens became the maintenance supervisor at Phillips Academy. Months later, he came under supervision by Miller. According to Owens, he told Miller that he had an age-discrimination suit pending against the Board of Education. She replied: “Do you think you’re going to keep your job?” Owens maintains that he reminded Miller about the suit weeks later. She replied: “I think you lost your mind … you think you’re going to keep your job.” The next month Miller gave Owens an “unsatisfactory” rating, the worst he had received since 1975. Owens contends that Miller told him: “I told you you weren’t going to get away with that.” Months later. the Board of Education, with a shrinking budget and declining enrollment, laid off 25 maintenance workers. Owens took early retirement, which he characterized as constructive discharge, alleging that Miller discriminated based on his age (61) and his first suit. The district court granted the Board summary judgment, finding that Miller had legitimate reasons to downrate Owens, who had several performance deficits. The Seventh Circuit affirmed in part: the record would not permit a reasonable trier of fact to conclude that Owens’s age influenced his “unsatisfactory” rating. Owens’s retaliation theory, however, could not be resolved on summary judgment. The court held that a reasonable juror could conclude that Miller threatened to get rid of Owens on account of his lawsuit and used the rating to do that.
Lopez v. Exxon Mobil Development Company, 2017 WL 4018359 (Tex. App.—Houston [14th Dist.] 2017)
Age Discrimination-Biased Remarks
This case arose in a Texas district court as the result of the job termination of an employee who was within the age protected group. The Court of Appeals held on an appeal from a summary judgment that the evidence that two managers described the plaintiff as “old and stubborn” was insufficient to defeat a motion for summary judgment, even though the managers’ statements were close in time to the plaintiff’s discharge and the managers were involved in the decision, because the Court claimed that the context of the statements showed that the managers were motivated by the plaintiff’s stubbornness and resistance to instructions, not by his age. This appears to be one of those cases in which the employee was not going to be allowed to prevail. An examination of the Court of Appeals holding regarding the “old and stubborn” remark leaves one wondering how could the portion of the remark about the employee being “old” not allow this question to go to jury regarding age being a motivating factor. In this holding the Court stated that “While the comment occurred close in time to Lopez’s termination and Machado and Kudlak were involved in that decision, the remark does not suggest that Lopez’s age was a factor in his ultimate discharge from the company…When considered in context, as it must be, the “old and stubborn” comment is not sufficient evidence giving rise to a reasonable inference that age was a motivating factor in Exxon’s decision to terminate Lopez’s employment, but rather was an expression of Lopez’s supervisors’ belief that Lopez was inflexible.” Editor’s Note: After reading that remark by the Court, one can only wonder how that is not invading the province of the jury regarding a reasonably clear fact question, as to what the managers meant by the use of the word “old.”