The Family Medical Leave Act provides that an employee can take time off from work to care for a family member.  But, "caring" for a family member means the employee must be in close and continuing proximity to the family member.  So, the Fifth Circuit denied an appeal by a father who argued that frequent telephone calls to his daughter and wife regarding his daughter sufficed as "caring" for the daughter.  

The father was in Texas, while his wife was in Florida caring for their ill daughter.  The father had argued on appeal that frequent telephone contact over two weeks with his daughter satisfied the requirements of the FMLA.  Telephone contact, said te Fifth Circuit, does not satisfiy the proximity requirement.  See Baham v. McClane Foodservice, Inc., 011 US App. Lexis 13620 (5th Cir. 2011). 

Not that telephone "caring’ does not have some value, but really? 

Sometimes, a creative employer will defend an apparently racist decision by claiming they did not discriminate against all minorities.   We see an attempt at such a defense in Diaz, Et Al v. Kraft Foods Global, Inc., No. 10-3073 (9th Cir. 8/8/11).  Two employees alleged they were victims of anti-Hispanic discrimination when they were passed over for promotion.  A third employee claimed discrimination because he was never promoted to a higher wage level. 

The three Hispanic employees claimed a white supervisor, Peter Michalac, consistently assigned disfavored tasks to them, scrubbing parking lots, cleaning sewers, as often as possible during the cold winter months.  The three employees testified that Mr. Michalac referred to one of them as a "gold digger" when he sought a raise.  He once said he got his job because he was white.  He once yelled, "I’m white and I’m right."  A fourth Hispanic employee testified that on numerous occasions, Mr. Michalac said Hipanics were "dummies" and "stupid."  He said he did not like Spanish people. 

The employer defended on the basis that Mr. Michalac did not assign all disfavored jobs to all Hispanics.  That is, he did not assign these odious tasks to another Hispanic employee, Raul Fernandez.  So, argued the employer, Mr. Michalac was not biased against all Hispanics or these three plaintiffs in particular. 

The court of appeals rejected this reasoning.  The court explained that if this line of reasoning worked, then every female victim of sex harassment would have to prove that the offending male harasser harassed all women.  The court found that discrimination against one Hispanic violates Title VII even if the employer does not discriminate against another Hispanic employee.  The statute applies to individuals, not necessarily to groups of minorities.  There is no token exception to Title VII, said the Court. 

The appellate court pointed out that the lower court appears to have incorrectly applied similarly situated analysis to a situation that did not involve similarly situated employees.  The three Hispanic employees were not comparing themselves to non-Hispanic employees.  They were presenting direct evidence of discrimination.  

Yes, observations of tone, gestures, inflections, as well as the actual words of the transgressor do make a difference.  See the decision here.  

LCPL Benjamin Whetstone Schmidt was killed in Afghanistan.  he apparently suffered a gunshot wound.  LCPL Schmidt was a sniper for the Marines.  He was the son of Dr. David Schmidt, team physician for the San Antonio Spurs.  He was also the son of Becky Whetstone, former advice columnist for the San Antonio Express News.  Ms. Whetstone was formerly married to Congressman Charlie Gonzales. 

LCPL Schmidt was in his fourth year with the Marines and had planned to return to civilian life.  He graduated from Alamo Heights High school where he played football.  He was described by his mother as charming and charismatic.  He will be buried at Ft. Sam Houston National Cemetery.  See San Antonio Express News report. 

As I have mentioned here before, I have to admire our brave young men and women who continue to step up in a time of war and serve in our military. 

All too often, someone who filed an EEOC charge comes to see me with their right-to-sue letter in hand seeking representation for a lawsuit.  Unable to accept their case, i discus the alternatives.  I review the deadline with the potential client: 90 days for federal court and 2 years for state court.  Looking more closely, I realize that the EEOC did not notarize the charge.  Oh, oh.  The EEOC famously, perhaps infamously, does not notarize changes of discrimination.  Without a notarized signature, the client cannot file suit in state court. 

The EEOC Notice of Dismissal (aka "right-to-sue" letter) form used by the EEOC has two signature blocks, one in which the affiant swears under penalty of perjury that the above complaint is correct and a second block which requires notary certification.  The EEOC uses the first block in which the affiant signs under penalty of perjury.  That first signature suffices for federal court, but not for state court.  The EEOC never asks the charging party to sign before a notary.  Stetson College of Law has posted a sample EEOC charge.  

Just about every private practice lawyer who represents employees asks the charging party to sign both signature blocks.  The notary certification is necessary for state court.  It only takes an extra minute or two to sign a second time before a notary.  I am told that way back when, the EEOC used to have charging parties sign both block.  But, they have long since discontinued that practice.  

So, now, in my office, I have to explain to a charging party why s/he cannot or should not file in state court.  It is way too late to file a new charge of discrimination.  As often happens, they came to see me about Day 88 of a 90 day deadline to file in federal court.  It is hard to find lawyers who represent employees in employment matters.  

So, once again, a client sees me well past the six month deadline for filing a charge of discrimination.  The 90 days to file in federal court is almost gone.  Since the charging party did not sign before a notary, s/he cannot now file in state court.  It is a maze which traps many well-meaning victims of discrimination.  All because the EEOC would not take an extra couple of minutes to have the charging party sign twice…….

 

Some time back, I discussed a case where the defendant in a personal injury lawsyit was trying to obtain continued discovery of a plaintiff’s Facebook and My Space entries.  See my prior post.  The Houston trial judge had ruled that after the plaintiff changed her settings to private, the defendant could no longer obtain the entries.  The defendant then sought a writ of mandamus to force the trial judge to rule differently.  

The Texas Supreme Court dismissed the writ on Sept. 9, 2011, meaning they reject the appeal for an unspecified reason.  See Texas Supreme Court site.  So, the trial judge’s ruling stands: a party cannot continue to seek social media entries after the party changes her settings to privacy. 

Many employers have implemented so-called no-fault attendance policies in which employees are charged with a day of leave regardless of the reason for the leave.  Once, the employee accumulates enough absent days, s/he will be fired.  Such leave policies, however, conflict, with the Americans with Disabilities Act.  Under the ADA, when an employee requests an accommodation which might involve leave, the employer must consider the request on an individual basis.  The consideration must address the specific employee’s needs, not the potential needs of all employees who request leave.  

Texas Employment Law Update, a very good blog, agrees with other employment law blogs which argue that attendance is an essential requirement of every job.  See Texas Employment Law post.   Other management blogs argue that attendance is a requirement for every job.  See Work Blawg.  Work Blawg cites cases for the proposition that attendance is an implicit requirement for every job.  But, there are many cases which expressly hold that leave is a viable accommodation.  See, e.g., US Airways, Inc. v. Barnett, 535 U.S. 391, 397-98 (2002) (an accommodation may includes breaks for treatment).   

See also Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir.1998) (employee’s attempt to extend a three week leave for treatment was reasonable); Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3d Cir. 1999) (“unpaid leave supplementing regular sick and personal days might, under other facts, represent a reasonable accommodation,” but leave requested here was not reasonable); Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.1989) (decided under § 501 of the Rehabilitation Act); Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 782–783 (6th Cir. 1998); (medical leave of absence, paid or unpaid, may be reasonable accommodation); Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601 (7th Cir.1998); Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008); Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 n.5 (2d Cir. 2006) (noting that “[m]ost other circuits and the Equal Employment Opportunity Commission have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA.”).

The cases that argue that attendance is a job requirement for every job actually address a slightly different issue.  Many of these cases actually address the question of whether the employee can ever work.  These cases involve employees who miss months and years of work.  In Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996), the Fifth Circuit did indeed suggest that attendance was a requirement for every job.  But, the fact situation in this case concerned an employee who had missed a year of work and would likely miss many more months of work.  The issue was about whether the employee could ever work again, not whether intermittent leave would accommodate his illness or not.  The court simply stated the legal ruling too broadly. 

Every illness is different.  Every treatment plan is different.  Every situation is different.  Cities have more sources for occupational therapy than rural locations.  A patient living in a rural community will have far fewer choices for physical therapy than a city worker.  No one situation is the same.  That is why the ADA requires an individual assessment. 

Indeed, even discussing whether a particular job task is truly required is a fact issue.  Whether attendance, lifting, writing, sitting, standing, etc. are true job requirements is a fact issue.  It is mis-leading to argue that one case decision can state affirmatively that one particular job task is required for a broad range of jobs, much less "every" job.  The Fifth Circuit stated as much in Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 707 (5th Cir. 1997):

"First, we cannot say, on the facts of this case, that any or all of the above listed … duties as a matter of law are essential functions …. If we venture to second-guess then we simply usurp the most critical function of the jury in ADA cases, i.e., the injection of some indispensable common sense in the determination of what is or is not an essential function."

So, in the end, as with most legal questions, it depends on the situation…..

 

 

 An Air Foce Reservist is one step closer to receiving his award of $926,506 in lost pay and benefits.  The 2d Circuit Court of Appeals upheld a lower court ruling that Michael Serricchio suffered discrimination when his employer changed his sales plan after he returned from active duty.  Wachovia paid Mr. Serricchio commissions as a financial advisor.  After returning from active duty, Wachovia changed his sales leads to "cold calls" instead of offering him his original clients or comparable customers. 

Wachovia had argued that it was only required to offer a returning Reservist the same commission structure without reference to the advisor’s prior book of business.  Thus, in effect, the employer had argued that the returning Reservist was required to build back his book of customers.  If he did not, tough luck.  

The new employer, due to corporate changes is Wells Fargo.  The trial court ordered Wells Fargo to pay Mr. Serricchio a draw of $12,300 for the next nine months while be builds up his business.  He was awarded $389,453 in lost pay.  The Uniformed Services Employment and Reemployment Act (USERRA) does not provide for emotional suffering type damages.  The USERRA Act only provides for lost pay and benefits. 

 Insurgents have killed a San Antonio soldier, 1LT Andres Zermeno, in Afghanistan.  See Defense Department news release.  1LT Zemeno died from wounds suffered in an RPG attack. 1LT Zermeno graduated from St. Mary’s University where he met his wife.  He served in the ROTC program and studied psychology.  See KSAT news report. 

The former Chief Financial Officer for the Bexar County Medical Society has sued her former employer for sex discrimination and retaliation.  See San Antonio Express News report.  Former CFO Patricia Baldeschwiler served in the post about eight years.  According to her lawsuit, Ms. Baldeschwiler and other female employees began to experience sexual discrimination from the Chief Executive Officer, John Wisneiwski.  The plaintiff says she took her complaints to the executive committee of the BCMS in October, 2009.  She was fired three weeks later.  So, of course, the lawsuit claims she was fired in retaliation for opposing discriminatory practices. 

As I have mentioned before, discrimination is often subjective and difficult to prove.  But, if an employer fires someone soon after a complaint of discrimination, then the suit becomes one involving retaliation. Retaliation is much easier to prove. 

The Express News report mentions that Ms. Baldeschwiler received her right-to-sue notice from the EEOC in September, 2010.  But, she did not file suit until now after receiving a separate right-to-sue notice from the Texs Workforce Commission’s Civil Rights Division.  That is, surely because the former CFO preferred to file suit in state court.  A plaintiff who wishes to file in state court must obtain a right-to-sue notice from the Civil Rights Division of TWC. 

What happens when the fired employee is elected to the board of trustees?  That situation is unfolding at the Southside Independent School District, a San Antonio area district.  Alma Rosa Guzman was fired by Southside ISD as maintenance manager in November, 2010.  See San Antonio Express News report.  Ms. Guzman was fired after working for Southside ISD for 30 years.  She then filed a complaint with the EEOC alleging gender based discrimination. 

She was elected to the board last May.  Since then, she abstains from votes concerning her EEOC charge and does not join her board colleagues when they go into closed session about her case.  The board has voted twice to reject her settlement demands, once for $850,000 and again for $600,000.  She has received her right-to-sue letter.  It was issued at her request.  So, she will surely be filing suit very soon.  There are sure to be many more such executive session votes…….