Court Report

HR Magazine, January 2006Racial epithets surface in Title VII claim; firing after harassment report upheld; more.

Firing After Harassment Report Upheld

Kasper v. Federated Mutual Insurance Co., 8th Cir., No. 04-3437, Oct. 4, 2005.

An employee who reports sexual harassment is not insulated from adverse employment action for underperforming, according to the 8th U.S. Circuit Court of Appeals.

Karen Kasper, a supervisor who directed an underwriting team, was informed by a female co-worker that a company manager, Greg Johnson, had shared dirty jokes with her. Kasper told the co-worker to report Johnson’s behavior, but neither Kasper nor the co-worker took further action.

Later that year, Kasper received a complaint that Johnson touched himself inappropriately in front of female subordinates, but neither Kasper nor the complaining subordinate reported the behavior at that time.

As a result of company restructuring, Kasper began to report directly to Johnson. After two meetings with Kasper, Johnson wrote a memorandum to his supervisor, Scott Goodew, criticizing Kasper’s work performance and informing Goodew that an improvement plan had been put in place.

In turn, Goodew informed his own supervisor that despite strong customer service skills, Kasper was having problems managing her team, and he suggested that she should be transferred to another position where her customer service skills could be used.

Kasper subsequently told a human resource representative that Johnson previously had touched himself inappropriately in front of female subordinates. There was an investigation, and Johnson was disciplined.

When Johnson and Goodew met with Kasper later that year, Goodew expressed concerns about Kasper’s performance and her ability to accept criticism. After Kasper said she felt that she was being retaliated against for reporting Johnson, she was assigned to a new supervisor.

Several months later, the new supervisor met with Kasper to outline areas in which improvement was needed and requested weekly updates on Kasper’s workload. After further performance criticism, Kasper threatened a lawsuit against the company for “wrongful treatment” but took no legal action then.

During Kasper’s performance review, her new supervisor rated Kasper as “Needs Improvement” and placed Kasper on a performance improvement plan (PIP). When Kasper refused to cooperate with the terms of the PIP, she was terminated.

Kasper sued under Title VII, alleging that she had been fired in retaliation for reporting Johnson’s inappropriate behavior. The lower court ruled for the company, concluding that Kasper could not establish retaliation and that no reasonable jury could conclude that the reasons provided for her termination were a pretext for discrimination. The 8th Circuit affirmed.

By Maria Greco Danaher, an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.

Dealer Claims Casino Violated Title VII

Jones v. Robinson Property Group, 5th Cir., Nos. 04-60688 and 04-60924, Oct. 11, 2005.

Witness accounts of a manager’s racial epithets constitute sufficient direct evidence of race discrimination to defeat a summary judgment motion, the 5th U.S. Circuit Court of Appeals decided.

Ralph Jones, a black man who is a well-qualified, certified poker dealer, repeatedly sought a job from 1994 until 2002 in the poker room at the Horseshoe Casino and Hotel in Tunica, Miss. Jones worked at the casino in other departments on a temporary basis but was never hired as a regular full-time employee. He filed a race discrimination claim against Robinson Property Group under Title VII of the Civil Rights Act.

A former employee testified that the poker room manager “very often” uttered racial epithets, but then the employee recanted and said the manager used such language without qualms but not often. She claimed the manager or his assistant (who had input in hiring decisions) told her that a particular black applicant was not hired because “these good white boys don’t want black people touching their cards.”

Another former employee testified that the manager told him, “Maybe I’ve been told not to hire too many blacks in the poker room.” The manager denied making the comments attributed to him.

The district court granted summary judgment against Jones, determining he failed to submit evidence of race discrimination. However, on review, the 5th Circuit decided that the witness statements were both credible and direct evidence of discrimination.

The testimony proves that race was at least a factor in employment decisions, assuming at the summary judgment stage that the witness accounts were true, the 5th Circuit ruled, and then sent the case back to the district court for more proceedings.

By Jennifer Ann Welfley, an attorney with the firm of Millisor & Nobil Co. LPA in Cleveland, an affiliate of Worklaw® Network.

Calling in Sick Is Not FMLA Notice

Walton v. Ford Motor Co., 6th Cir., No. 04-1471, Sept. 28, 2005.

An employee who only notified his employer’s security office that he was not coming to work because he was “sick” on two separate occasions was not entitled to Family and Medical Leave Act (FMLA) protection for his time off, the 6th U.S. Circuit Court of Appeals ruled.

Terry Walton had worked for Visteon in its Milan, Mich., plant for almost 10 years as a millwright in the maintenance department. After he twisted his knee at home, Walton told his supervisor of the injury and said he planned to visit the plant’s medical office. He was diagnosed with a slight sprain but otherwise was cleared to return to his job.

Walton returned to work for the remainder of the morning. At noon, he informed his supervisor that he had scheduled a doctor’s appointment, and the supervisor cleared him to leave.

The doctor gave him a note to stay off work until he could be evaluated by an orthopedic surgeon. Walton did not return to work that day and failed to contact anybody at Visteon to advise them of his status.

The next day, he called the plant’s security office and said his doctor told him to stay off work until he could see a specialist four days later. Security personnel recorded the reason for Walton’s absence as “sick” and listed his expected return-to-work date as the date he would see the specialist.

At his evaluation with the orthopedic surgeon, Walton was advised he had torn a ligament and should stay off work for more than a month. Walton called the plant security office and said he had been advised by his doctor to stay off work through the end of the next month. Again, the security office’s absence log recorded that the reason for Walton’s absence was that he was sick.

Walton did not contact his supervisor, HR or medical departments at the plant. Nor did he ever request or fill out any leave or FMLA paperwork, or make any effort to provide the two doctors’ notes he received regarding his knee condition to anyone at Visteon.

The HR department subsequently sent Walton a “five-day quit” letter by registered mail. Walton received notice that the post office was holding Visteon’s certified letter for him but neglected to pick it up until five days after Visteon terminated him.

Walton sued Visteon for violating the FMLA. He claimed that he gave sufficient notice of his need for FMLA leave simply by calling in sick to the security office. A federal district court in Michigan disagreed, however, and dismissed his case.

On appeal, the 6th Circuit ruled that Walton’s notice to his supervisor of the doctor’s appointment was insufficient because Walton never indicated that he needed further time off. An employee’s statement that he or she is sick is not enough to apprise an employer that the employee may have a “serious health condition” under the FMLA, the court also determined. The court also based its ruling on the fact that the security officers Walton contacted were independent contractors who were not employed by Visteon.

By James B. Thelen, an attorney with the firm of Miller, Canfield, Paddock and Stone PLC in Lansing, Mich.


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