Category Archives: Employment DIscrimination

$2.5 Million Employment Discrimination- Race and Retaliation Verdict Affirmed

In most employment discrimination cases there are two common measures of damages sustained by an employee, economic damages, such as lost salary, wages, bonuses and benefits following the termination of employment, and compensatory damages, which compensate an employee for emotional distress damages. Economic damages are far easier to quantify. As a recent New Jersey Supreme Court case illustrates, when there are facts which support employees suffering substantial emotional distress in an employment discrimination case, courts will permit a jury to award significant emotional distress damages.

In Cuevas v. Wentworth Group, (no.-30-14, 075077) (N. J. Super A. D. September 19, 2016), in a race discrimination and retaliation case, a unanimous Supreme Court of New Jersey affirmed a jury award of $2.5 million to two Hispanics brothers, including $800,000 in emotional distress damages to one employee and $600,000 to the other employee. The employees were employed as a regional vice president and portfolio manager at a property management company. The employees presented evidence that they were routinely subject to racially disparaging and humiliating remarks by the employer’s executives, including the executive vice president of operations. The employees alleged that, they routinely faced biting remarks that invoked racially demeaning stereotypes. Many of the degrading remarks occurred at senior executive meetings attended by an in-house lawyer, other executives, and regional vice presidents. The employees filed a lawsuit under the New Jersey Law Against Discrimination (LAD) alleging race discrimination, retaliation and a racially hostile work environment.

The evidence at the trial included the employees being referred to as Chihuahuas, Latin lovers, and the “Rico Suave brothers.” At a meeting when music was played, an employee interjected, “Do you think we could get a little Mariachi or salsa music in the background”- “something a little more to Ramon’s (one of the brothers) taste?” At a conference to discuss entertainment, an employee said that Ramon should look through his Rolodex because he might know “a salsa band, a Mariachi band that can perform.” Although Ramon attempted to deflect the hurtful comments, he was embarrassed, particularly when they were made in the presence of employees that he supervised. On one occasion, an executive stated that if he did not pick up the check, “Ramon can join his father [in the back] and you guys can wash dishes.” On another occasion when one of the employees came to the office explaining that he had to fix a flat tire, an employee suggested that if a “Puerto Rican” were observed with a crowbar kneeling by a car, he might be mistaken as “trying to steal the car or the hubcaps.” Two former property managers for the employer also testified that n executive made comments that they would be safe in bad neighborhoods when accompanied by Ramon because “he’s one of them” and because he was “Spanish.” The employer’s director of human resources also referred to the brothers as “Latin lovers.”

Just prior to being terminated one of the brothers told the employer’s in-house lawyer, “I really would like it if those comments at these executive meetings could stop” and he described the repetitive offensive remarks as “silly,” “childish,” and “degrading.” The lawyer replied that he should “calm down” and that the remarks were “good natured ribbing,” not “that big a deal,” and should not be taken “so seriously.” Four days later, one of the brothers was fired after he had just been given a performance-based raise of $10,000 four weeks earlier and shortly thereafter, the other brother was terminated. While the employer contended that employees were terminated for poor work performance, the employer could not produce any documents to substantiate a claim that the employer had received client complaints

In Cuevas, the New Jersey Supreme Court rejected the employer’s argument that in an employment discrimination case, only nominal damages may be awarded to compensate an employee for emotional distress when there is no independent corroborative proof or a showing of resulting physical or psychological symptoms. Instead, the Court held that a plaintiff employee may recover damages for emotional distress and mental anguish arising out of embarrassment, humiliation, and other intangible injuries without medical proof, as courts must give due regard to the opportunity of the jury to pass upon the credibility of the witnesses. Thus, the New Jersey Supreme Court found that due to the special harm that can be caused by willful discrimination in the workplace, compensatory damages for emotional distress, including humiliation and indignity, are remedies that require a far less stringent standard of proof than that required for a tort-based emotional distress cause of action.

The Court noted that the employees were entitled to recover all natural consequences of the employer’s wrongful conduct, including emotional distress and mental anguish damages arising out of embarrassment, humiliation, and other intangible injuries as the mental anguish and humiliation were sustained over a long period, and was not fleeting or insubstantial. While the Court noted that the jury awards for emotional distress damages of $800,000 and $600,000 to the employees “are probably on the high end, they were not so wide of the mark that they shock the judicial conscience.”

For more information about race discrimination and retaliation see, http://www.job-discrimination.com/race-discrimination.html, http://www.job-discrimination.com/retaliation.html

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Terminated Employee Who Brings Shotgun to Work May Have Age and Sex Discrimination Claims

How can a terminated employee prove employment discrimination based on protected criteria such as age or sex when no one ever told the employee that the reason for termination was the employee’s age or sex? The answer is that federal and Pennsylvania law permits a Plaintiff employee to offer indirect evidence of discrimination. A recent Commonwealth Court of Pennsylvania case demonstrates that even when a gun is brought to work, if a similarly situated employee outside of a protected discrimination class is treated differently, courts may allow a discrimination claim to proceed.

In Leibensperger v. Carpenter Technologies, Inc. (Pa. Commwlth. Court September 22, 2016), the Commonwealth Court of Pennsylvania reversed the trial court and found that a terminated male employee may be able to show age and sex discrimination when the employer relied upon a policy which was not applied uniformly to a younger employee or a female employee. In Leibensperger, the proffered reason for termination of the male employee was that the employee violated the employer’s firearm policy that provides that bringing a firearm or other dangerous weapon onto the employer’s premises is considered an intolerable offense for which an employee will be immediately suspended with intent to discharge.

In Leibensperger, the employee brought an inoperable antique gun to the employer’s parking lot after his female co-worker said that she knew someone who could refurbish the shotgun and the co-worker agreed to transport the shotgun to the refurbisher’s place of business. While exchanging the shotgun in the parking lot, two other employees observed the transfer of the shotgun and reported the situation to the employer. After an investigation, the 53-year male employee was terminated but the female coworker was only suspended and then given a written warning. The terminated male employee filed age and sex discrimination claims regarding the termination and identified two other employees who were not terminated and received less harsh punishments for violating the employer’s dangerous weapons policy by bringing hunting bows onto the employer’s property.

Pennsylvania courts follow the analytical model established by the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973) in determining whether summary judgment is appropriate for employment discrimination cases, involving indirect discrimination, where the Plaintiff employee must establish that: (i) the employee is a member of a protected class; (ii) the employee was qualified for the position; (iii) the employee suffered an adverse employment action; and (iv) the employee was discharged under circumstances that gave rise to an inference of discrimination. An employee can establish circumstances giving rise to an inference of discrimination by demonstrating that the employee was discharged and replaced by someone outside of his protected class and that similarly situated employees were not treated equally. Whether a comparator is similarly situated is generally a question of fact for a factfinder.

Once the employee establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory motive for its action. If the employer does so, the employee is then given the opportunity to demonstrate that the proffered reason for termination was pretextual. There are two ways by which an employee can demonstrate that the employer’s legitimate, nondiscriminatory reason was pretextual. The first is to point to evidence that would allow a factfinder to disbelieve the employer’s reason for the adverse employment action. An employee may also point to evidence that would allow a factfinder to believe that an invidious discriminatory reason was “more likely than not a motivating or determinative cause” of the employer’s action.

In Leibensperger, the Commonwealth Ccourt found that the two employees who bought hunting bows to work were similarly situated in that they worked for the same supervisor, performed roughly the same job duties, and were both punished for violating the policy but not terminated, even though those employees violated the dangerous weapons policy prohibiting firearms on the employer’s property. The Court also found that the fact that firearm was an inoperable, rusty, antique shotgun that was not functional created a question whether the firearms policy was even applicable to the shotgun; while the hunting bow brought to work by younger employees who were not terminated, could fall within the policy as a “dangerous weapon.”

Ultimately the Commonwealth Court concluded that given the disparate treatment of other employees as compared to the terminated employee, as well as the potentially ambiguous nature of the employer’s policy, a reasonable factfinder could conclude that the employer’s policy was not violated by bringing an inoperable gun onto the employer’s parking area and that employer’s proffered reason for terminating employment could be a pretext for discrimination. Therefore, the Court found that viewing the evidence in a light most favorable to the terminated employee there was credible evidence that a reasonable factfinder could conclude that the employer’s proffered reason for terminating employment, thus, the Court reversed the trial court’s decision.

Abramson Employment Law represents employees in age discrimination and sex/gender discrimination claims. For more information on age and sex discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126515.html,http://www.job-discrimination.com/lawyer-attorney-2130157.html,

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Terminated Employee Eligible for FMLA Leave Wins $200,166 Judgment Against Employer

When an employer terminates an employee shortly after an employee requests a leave from work due to a medical condition, several possible causes of action may exist. One of those causes of action is under the Family and Medical Leave Act (FMLA), which entitles qualifying employees to take reasonable leave for medical reasons and upon return to work within a 12-week period, the employee must be to be restored to the same or similar job at the same pay. Causes of action available to an employee under the FMLA may arise under two different theories as employers are prohibited from: (1) interfering with an employee’s exercise of the right to take reasonable leave for medical reasons; and (2) discriminating or retaliating against an employee who exercises this right. FMLA interference claims concern the denial of a benefit or protection afforded by the FMLA, whereas FMLA retaliation claims pertain to whether an employer used an employee’s FMLA leave as a negative factor in its decision to terminate employment.

In Poff v. Prime Care Medical, Inc. (M. D. Pa. no. 13-cv-03066) (June 14, 2016) (Schwab, M. J.), the Court found in favor of the employee, a licensed practical nurse on her claim that her former employer, violated the FMLA by terminating her employment after she requested medical leave for a serious health condition. The employee claimed that the employer violated the FMLA in two ways: (1) by failing to notify her of her FMLA eligibility and (2) by terminating her because of absences from work due to her serious health condition. In Poff, the employee advised her supervisor, that she was ill and had to leave work and the supervisor called the on-call administrator, to inform him that the employee had left work early and on the same day the employee sent an email requesting FMLA forms. The court found that the request for FMLA forms coupled with the fact that the employee left early after informing the charge nurse that she was ill, was sufficient to place the employer on notice that the FMLA may apply and thereafter there was evidence that the employee had forwarded the FMLA certification form before her termination. The Court found that the employee left work early due to a serious health condition, that she provided the employer with adequate notice of her need to take FMLA leave on the same date and that the employer violated the FMLA by terminating her employment. The Court also found that the employer did not meet its burden of showing that it acted in good faith and that it had reasonable grounds for terminating the employee despite her request for FMLA leave.

In order to prevail in a FMLA interference claim, an employee must establish: (1) the employee was an eligible employee under the FMLA; (2) the employer was subject to the FMLA’s requirements; (3) the employee was entitled to FMLA leave; (4) the employee provided notice to the employer of the intention to take FMLA leave; and (5) the employee was denied benefits to which the employee was entitled under the FMLA. While an employee seeking FMLA leave must state a qualifying reason for the needed leave, the employee does not need to expressly assert FMLA rights or even mention the FMLA or ask for FMLA forms. Where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer is required to inquire further to ascertain whether the employee’s leave is potentially FMLA-qualifying.

An employer who violates the FMLA is liable to the employee for damages equal any wages, salary, employment benefits, or other compensation denied or lost by reason of the FMLA violation, interest and an additional amount as liquidated damages, except that if an employer proves to the satisfaction of the court that the act or omission was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a the court may, in the discretion of the court, reduce the amount of the liability. In addition, the employee mat be awarded equitable relief such employment, reinstatement, and promotion.

In Poff, the court denied the Defendant employer’s motion to amend the Court’s findings following a nonjury trial and entered a judgment totaling $200.166 which included out of pocket wage related damages, liquidated damages and interest in the amount of $103,606 plus attorneys’ fees and costs in the amount of $96,599.

For more information on the Family and Medical Leave Act (FMLA) and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126523.html.

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Employer Violates FMLA By Terminating Employee Who Takes Leave to Care for Parents

The right to leave under the Family and Medical Leave (FMLA) not only applies to an employee who has a medical reason to take leave from work but can also extend to immediate family members. In Raimondi v. Wyoming County (no. 14-cv-1918) (M. D. Pa. May 24, 2016), the Plaintiff employee filed an FMLA action asserting that she was entitled to FMLA leave due to the serious health conditions experienced by her parents and that the employer failed to restore the employee to her position following her leave and instead terminated her employment.

In Raimondi, two months before the employee was terminated, her father fell and fractured his femur, which required the surgical insertion of a rod and thereafter he entered a nursing home to recover. At the same time, the employee’s mother could not care for herself alone and the employee had to take a leave from work to care for her mother. The employee’s mother suffered from active muscle spasms, Alzheimer’s Disease and heart disease. The employee informed the employer of her need for leave prior to traveling to her parents’ home in Indiana to care for her parents. The Court found that the undisputed evidence demonstrated that the employer failed to restore the employee to her pre-leave position and granted the employee’s motion for partial summary judgment.

The FMLA entitles employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition. Eligible employees are entitled to 12 work weeks of leave during any twelve-month period. For family member FMLA leave, an eligible employee may take leave to care for a family member’s physical and psychological needs, which may include providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care. The “needed to care for” term also embraces situations where the employee may be needed to substitute for others who normally care for the family member or to make arrangements for changes in care, such as transfer to a nursing home. The family member to be cared for must have a “serious health condition ” defined as a physical or mental condition involving either inpatient care or continuing treatment involving a period of incapacity or treatment for incapacity. A serious health condition involving continuing treatment by a health care provider includes any period of incapacity or treatment for such incapacity due to a chronic serious health condition which is defined as one which: (1) requires periodic visits for treatment by a health care provider, or by a nurse under direct supervision of a health care provider; (2) continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) may cause episodic rather than a continuing period of incapacity such as asthma, diabetes or epilepsy.

While an employee seeking FMLA leave must state a qualifying reason for the needed leave, the employee does not need to expressly assert FMLA rights or even mention the FMLA or ask for FMLA forms. In any circumstance where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer is required to inquire further to ascertain whether the employee’s leave is potentially FMLA-qualifying.

Generally, FMLA leave is unpaid. The FMLA, however permits an eligible employee to substitute accrued paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave and the regulations provide that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave.

The FMLA contains two relatively distinct provisions prohibiting employers from: (1) interfering with an employee’s exercise of their right to take reasonable leave for medical reasons; and (2) discriminating or retaliating against an employee who exercises this right. An interference claim derives from the denial of some benefit or protection afforded by the FMLA, whereas retaliation actions pertain to whether an employer used an employee’s FMLA leave as a negative factor in its decision to terminate her employment.

To state a FMLA interference claim, an employee must establish: (1) the employee was an eligible employee under the FMLA; (2) the employer was subject to the FMLA’s requirements; (3) the employee was entitled to FMLA leave; (4) the employee provided notice to the employer of the intention to take FMLA leave; and (5) the employee was denied benefits to which the employee was entitled under the FMLA. In Raimondi, the Court found that the employee fulfilled each of these requirements; thus, the employer committed a FMLA interference violation and the court ordered the case should proceed to trial only on the issue of damages.

For more information on the Family and Medical Leave Act (FMLA) and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126523.html.

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Terminated Employees Have Right to Inspect Personnel Files

Employment lawyers are frequently asked whether an employee who has been terminated has the right to review their personnel file. Until recently, the answer was no. However, the answer has now changed based on the Commonwealth Court of Pennsylvania’s decision in Thomas Jefferson University Hospitals v. Pennsylvania Department Labor and Industry, no. 2275 CD 2014 (January 6, 2016), where in a 2-1 decision, the Commonwealth Court broadly interpreted a Pennsylvania law, the Personnel Files Act, and found that a recently terminated employee has the right to inspect the employee’s personnel file maintained by a former employer. This decision came as a surprise to many employment law attorneys as a literal reading of the statute and an earlier decision were often relied on to reach the opposite conclusion.

The Commonwealth Court case concerns a request to inspect a personnel file by a former employee which was made seven days after the employee was terminated. The Pennsylvania Personnel Files Act provides in relevant part: “An employer shall, at reasonable times, upon request of an employee, permit that employee . . . to inspect his or her own personnel files used to determine his or her own qualifications for employment, promotion, additional compensation, termination or disciplinary action.” 43 P.S. § 1322. Previous interpretations of the law relied on the Pennsylvania Personnel Files Act’s definition of “employee” “as any person currently employed, laid off with reemployment rights or on leave of absence and does not include applicants for employment or any other person.” 43 P.S. § 1321. Given that the law’s definition of employee explicitly uses the term “current”, the law had previously been interpreted to exclude former employees who were terminated from having a right to inspect their personnel file.

The Commonwealth Court held that the fact that the employee was not currently employed did not matter, finding that the word “current” is defined in Webster’s Eleventh Collegiate Dictionary as “presently elapsing, occurring in or existing at the present time” or “most recent” and the fact that the employee’s employment was terminated only one week prior to the employee’s request to review the personnel file, clearly qualifies as “presently elapsed” employment and/or “most recent” employment, thereby, falling within the law.

The Commonwealth Court rejected the employer’s reliance on the former employer’s argument that the legislative history reflects a failed attempt to change the definition of employee to include former employees. Lastly, the Court held that another earlier Commonwealth Court decision, Beitman v. Department of Labor and Industry, 675 A2d 1300 (Pa. Cmwlth 1996), was distinguishable because even though Beitman decided a similar issue, the decision was largely premised on the fact that the former employee who made her request had not been employed by the former employer for almost two and one-half years at the time the employee made her request.

It should be noted that to date, the right to review a personnel file has not been extended to include the right to make and/or receive a photocopy of the employee’s personnel file. Also, for terminated employees who foresee the need to potentially pursue litigation against a former employer, making a request to review the personnel file may be of great assistance in obtaining some perspective on the employer’s proffered reason for termination and also allow an assessment of any documentary evidence which an employer would rely in litigation.

Abramson Employment Law represents clients with a variety of workplace disputes. Please visit our website http://www.job-discrimination for more information on all kinds of workplace issues.

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