Mar 13
Lauren FisherFair Employment Practices, Hostile Environment
Dulaney v. Packing Corp. of America and Bobby Mills, No. 10-2316, ___ F.3d ___, 2012 U.S. App. LEXIS 5104 (4th Cir. March 12, 2012). Before we launch into the recitation of the facts in this case, an important disclaimer is in order. This decision arises out of a motion for summary judgment. When a court is ruling on a motion for summary judgment, it must view the facts in the light most favorable to the party who did not make the motion. Accordingly, the United States Court of Appeals for the Fourth Circuit viewed the facts of the case in the light most favorable to the plaintiff, Carla Dulaney, and the resulting judicial opinion accepts Dulaney’s version of the facts as true. What we have restated here is the Fourth Circuit’s recitation of the facts. The case has been remanded for a new trial and the facts that are determined at trial may turn out to be different from the facts that the Court considered on appeal.
The Fourth Circuit presented the material facts of the case as follows. Carla Dulaney began working at Packing Corporation of America (PCA) as a temporary hourly employee in November of 2006. She worked second shift on the production line. Bobby Mills was designated as the “lead production worker” for the second half of her shift, when no managers or supervisors remained.
In November of 2006 Mills extended an offer of permanent employment to Dulaney. By December Mills had approached Dulaney about “taking care of him” by performing sexual acts. When Dulaney refused, Mills followed through on his threats to make her life “hell”: he spread rumors about her, screamed at her, and interfered with her work. Dulaney eventually acceded to his demands. More
Mar 09
Lauren FisherFair Employment Practices
Boitnott v. Corning Inc., __ F.3d __, 2012 U.S. App. LEXIS 2657 (4th Cir. 2012). Michael Boitnott began working at Corning in 1989 and initially worked twelve hours shifts, alternating two weeks of day shifts with two weeks of night shifts. In May of 2002 Boitnott had a heart attack, which was followed by further cardiac difficulties. He was diagnosed with leukemia in 2003, but, according to court documents, his physicians determined that his leukemia did not necessitate any treatment at the time.
In February 2004, Boitnott advised Corning that he could return to work. He also provided his employer with a physician’s statement that stated he was limited to working eight hours per day.
Under the Americans with Disabilities Act (“ADA”), a person is disabled if he or she has a physical or mental impairment that substantially limits a major life activity, such as working. Under the ADA, an employer is obligated to provide an employee with a reasonable accommodation for his or her disability, unless doing so would create an undue hardship for the employer.
Corning took the position that Boitnott was not disabled under the ADA because he could work an eight hour work day and a 40 hour work week. Corning’s argument was that a person who can work eight and forty is not “substantially limited in a major life activity.” Corning refused Boitnott’s request for an accommodation because, as noted above, reasonable accommodations are required only for a person with a disability.
Rather than returning to his twelve hour shifts, Boitnott instead applied for long-term disability benefits. His insurer initially granted him those benefits, but later terminated those benefits because he could work a normal forty hour work week and positions with Corning would have allowed that schedule. Boitnott also filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) based on Corning’s failure to accommodate his disability.
When Boitnott’s long-term disability benefits were terminated, he indicated an interest in returning to work with Corning, but only in positions that required ten hour shifts and some overtime. Corning, through union representatives, told Boitnott that his physician’s statement limiting his working hours remained a problem. On December 30, 2004, Boitnott received a right-to-sue letter from the EEOC.
On January 18, 2005, one of Boitnott’s physicians indicated that he could work up to ten hours a day four days a week, but made no provision for overtime hours. On April 28, 2005, another physician certified that Boitnott could work ten hours a day plus a “moderate” amount of overtime.
With this lifting of the overtime restriction, Corning and the union began working towards Boitnott’s return to work. At the time, no day shift positions were available but Corning created a new position in the maintenance department that would allow Boitnott to work eight hours a day plus overtime. Boitnott returned to work on September 5, 2005, and, as of the date of the appeal to the Fourth Circuit Court of Appeals, he still worked in that position.
The issue addressed by the Fourth Circuit was this: did Boitnott have a disability, such that Corning’s failure to grant his request for accommodation constituted discrimination?
If a plaintiff argues that a disability substantially limits the major life activity of working, he must show that his impairment significantly restricts his ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. Additionally, the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
In this case the Fourth Circuit decided to follow other circuits in deciding that a plaintiff is not disabled if he is capable of working a forty hour work week but not capable of working any overtime. Inability to work overtime is not a “substantial” limitation under the ADA.
This case may have been resolved differently if, rather than focusing on his inability to work certain hours as rendering him disabled, the Plaintiff had instead focused on what it was that was preventing him to work certain hours. Especially if this case were decided under the ADA Amendments Act, which Congress enacted in 2008, Boitnott’s leukemia may have been considered a substantial impairment. But in this case, because the court was presented with evidence that Boitnott’s physician stated in 2003 that his leukemia did not necessitate any treatment at the time, it could not very well analyze whether the Plaintiff’s leukemia was a disability.
Feb 01
Lauren FisherWage and Hour
Minor v. Bostwick Laboratories, Inc., No. 10-1258 (4th Cir. Jan. 27, 2012), available at http://pacer.ca4.uscourts.gov/opinion.pdf/101258.P.pdf. Ms. Minor began working at Bostwick Laboratories, Inc. (here, “Bostwick”) as a medical technologist on December 24, 2007. On May 6, 2008, she and several colleagues met with Bostwick’s chief operating officer, Bill Miller, and told him that their supervisor had altered time sheets as to eliminate overtime pay, a violation of the Fair Labor Standards Act (“FLSA”). Miller said that he would look into the allegations.
The following Monday, Bostwick terminated Ms. Minor’s employment. Miller and an HR manager stated that the reason for Ms. Minor’s termination was that she was having too much conflict with her supervisors and that they had met with her co-workers and determined that Minor was the problem. In essence, Ms. Minor endured the workplace equivalent of Mean Girls: when she threatened the status of her superiors she was evicted from the group, ostensibly because no one liked her. In fact, Minor had never had any conflict with her supervisors, the alleged meeting between Miller and Minor’s co-workers never took place, and the circumstances suggest that she was terminated because she complained about her supervisor’s FLSA violation. More
Jan 30
Blackwell ShelleyTrade Secrets/Confidentiality
Collelo v. Geographic Services, Inc., ___ Va. ___ (January 13, 2012) Geographic Services, Inc. (“GSI”) subcontracts with various United States government prime contractors, including the Boeing Company (“Boeing”), to perform what is known as “geonames” work. Geonames work involves entering data into a spreadsheet, sometimes thousands of items, referring to a map feature. Once all of the map feature information is collected and verified, GSI then submits the spreadsheet to the prime contractor or the United States government. As part of its business, GSI developed a method for identifying and correcting errors in the data entered into the spreadsheet. GSI claims that its method enables it to produce highly accurate data more efficiently than is possible without the method. GSI considers its method a proprietary, confidential trade secret, and GSI has undertaken efforts to keep the method secret.
GSI hired Anthony Collelo in 2006 and trained him to do geonames work using GSI’s confidential methods. When GSI hired Collelo, he signed (among other things) a non-compete, non-solicitation, and confidentiality agreement which prohibited Collelo from disclosing confidential information without GSI’s written consent, and from soliciting or performing “Conflicting Services” for a customer or contractor of GSI for a period of one year after his GSI employment ended. In early 2008, Collelo resigned from GSI and went to work for Boeing, a GSI customer, in a non-geonames capacity. By mid-2008, however, Collelo became part of a Boeing team that started work on a future Boeing-GSI geonames project. Within a few months after he started work with Boeing, Collelo wrote a memo to his supervisors that he had developed methods that would dramatically increase production and efficiency in Boeing’s geonames work. When GSI learned that Collelo was engaged in geonames work, GSI objected and advised Boeing that it believed that Collelo was in violation of his non-solicitation agreement. More
Jan 27
Tim SchulteWhistleblower
In February 2010 we blogged about Ligon v. County of Goochland and noted that sovereign immunity is a complete bar against many suits filed by public employees against their employer. Here is another example, with a slightly better outcome for the plaintiff:
In Huang v. The Rector and Visitors of the University of Virginia, et al., Case No. 3:11-cv-00050 (W.D. Va. December 19, 2011), a professor at a public university complained about fraud and misappropriation of funds from a research grant. Then he was fired. The complaint alleged these facts:
Dr. Huang worked at UVa as an assistant professor in the Department of Psychiatry and Neurobehavioral Sciences. In 2009, Huang received a grant from the National Institutes of Health. As the “principal investigator” of this NIH grant, Huang was responsible for allocating grant money to researchers and staff working on his project. His allocation in turn determined how much of the salaries of the people involved in his research project would come from the grant money, instead of from UVa. For example, Huang allocated fifty percent of his time to his research project: fifty percent of his salary would therefore be funded by the NIH while the other fifty percent would be paid by UVa.
Huang alleged that he later discovered that his supervisor, Dr. Li, had secretly changed the allocation of the grant money. The allocation of three persons had been increased even though this increase did not accurately reflect the time actually spent on the research. In other words, Huang alleged that he had discovered that funds from the NIH were improperly diverted to UVa employees for purposes unrelated to the grant. Huang was sure he had discovered a fraud. More
Older Entries
RSS
