Category Archives: Retaliation

$922,060 Jury Verdict for Age Discrimination Retaliation Claim

When employers take adverse action against employees who have filed good faith age discrimination claims with the Equal Employment Opportunity Commission(EEOC) and/or the Pennsylvania Human Relations Commission(PHRC) employers can be subject to a separate claim of retaliation even when a good faith age discrimination claim is found to lack merit. In Karlo v. Pittsburgh Glass Works, LLC (W. D. Pa. no. 2:10-cv-1283), the employee filed a retaliation claim under the Age Discrimination in Employment Act (“ADEA”). The employee, a 58-year-old engineering specialist and production line supervisor, worked for the employer and its predecessor company for more than three decades. The employee was one of about 100 workers terminated as part of a company-wide workforce reduction. Thereafter, the employee and six other former employees filed Charges of age discrimination with the Equal Employment Opportunity Commission, claiming that they had excellent performance records and younger, less experienced employees were retained instead.

Ironically, after the initial termination of employment, the employee in Karlo, was rehired through a subcontractor to work as a shift maintenance supervisor for the same employer with whom he had been previously directly employed. The employee contended that after the employer became aware that he had filed a charge of discrimination with the EEOC, the employer encouraged him to withdraw his EEOC charge, and that when he refused to do so, the employee’s contract employment position was terminated and he was denied a new permanent employment position. The employee contended that the termination of his contract and not being hired for a permanent position was retaliation against him in violation of the ADEA for having filed and maintained a charge of discrimination with the EEOC. In Karlo, the jury found the motive was retaliation and that it was a willful violation of the ADEA, awarding the employee $362,052.00 in back pay and $560,008.00 in front pay for a total of $922,060.00. On May 18,2016,the Court denied Defendant’s Post Trial Motions upholding the jury’s verdict. (The employer recently filed an appeal to the U. S. Court of Appeals for the Third Circuit).

The ADEA prohibits an employer from taking any adverse action against an employee who files a charge of age discrimination. As such, the ADEA protects those who participate in certain age discrimination proceedings and those who oppose discrimination made unlawful by the ADEA. As in most discrimination and retaliation cases, where there may be an absence of direct evidence of retaliation, retaliation claims under the ADEA proceed under the McDonnell Douglas framework where a plaintiff asserting a retaliation claim first must establish a prima facie case. Under the ADEA, a prima facie case of retaliation for asserting age discrimination requires an employee to show that (1) the employee was engaged in a protected activity; (2) the employer took an adverse employment action after or contemporaneous with the employee’s protected activity; and (3) a causal link exists between the employee’s protected activity and the adverse employment action taken by an employee.

If the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the employer to present a legitimate, non-retaliatory reason for having taken the adverse action and the employer makes that showing, the burden of production returns to the plaintiff to establish that the proffered justification for the adverse action is pretextual and the Plaintiff must establish that his protected activity was a ‘but-for’ cause of the adverse employment action. To make a showing of pretext, the plaintiff employee must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a . . . determinative cause of the employer’s action. In so doing, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.

In Karlo, the court denied the employer’s post-trial motions noting that the case turned on the credibility of the witnesses and based on the verdict, the jury evidently disbelieved the employer’s witnesses and found the Plaintiff employee credible, drawing several inferences in his favor: including that a manager encouraged the employee to withdraw his EEOC charge and that after he refused to withdraw his EEOC charge and the employer terminated his contract employment position and denied him a permanent employment position. The court noted that in other words, the jury apparently found a causal connection between the end of the employee’s contract employment, the decision thereafter to not hire him as a permanent employee and his EEOC charge.

The Court also rejected the employer’s argument that a five-month gap between the filing of the EEOC charge and the adverse employment action (the termination of the contract and not hiring for the permanent position), is not close enough to support a causal connection, as the jury was entitled to find a causal connection based on more than just timing. Even assuming that the filing of the EEOC charge constitutes the only form of protected activity, the law also provides that in the absence of such a close temporal proximity, the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action, could be sufficient.

The court also rejected arguments that the jury’s finding of wilfulness was not supported by the record. wilfulness is significant because the ADEA provides double damages when the employer’s discriminatory conduct is willful. The issue of whether an ADEA violation is willful depends not on any additional proof adduced by a plaintiff in excess of the evidence required to sustain an ADEA claim but whether the facts of the case meet the legal definition of wilfulness, i.e., did the employer know or show a reckless disregard for the fact that its conduct was prohibited by the ADEA.

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

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$484,000 Disability Retaliation Judgment is Affirmed

Recently there has been an increase of reported cases involving employees who require an extended leave of absence as a reasonable accommodation request and suffer repercussions at the workplace. The Family and Medical Leave Act (FMLA) provides qualified employees of qualified employers to take up to 12 weeks of time off from work during a specified 12-month period if the employee has a serious health condition that makes the employee unable to perform the functions of a job. The FMLA provides that a qualifying employer must hold an employee’s job open for the period of FMLA leave. When the 12 weeks FMLA leave expire, an employee may still be entitled to additional medical leave from work as a reasonable accommodation under the Americans with Disabilities Act (ADA), the Pennsylvania Human Relations Act (PHRA) and/or the New Jersey Law Against Discrimination (NJLAD). In Boles v. Wal-Mart Stores, Inc. (3rd Cir no. 15-3127) (May 24, 2016), a former Wal-Mart employee filed a lawsuit after he was terminated following a medical leave of absence. The case proceeded to a jury trial which resulted in the entry of a verdict in favor of the employee, including $130,000 in back pay, $10,000 in emotional distress damages, $60,000 in punitive damages and $284,251.86 in attorneys’ fees and costs.

In Boles, the employee was terminated from his position as an assistant store manager after taking medical leave prompted by a leg ulcer. The employee required an extended medical leave which went beyond the 12-week period of leave permitted by the FMLA. When the employee returned to the store on the date his treating physician cleared him for work, he discovered that he could not log onto his computer. A few days later the employee received a termination letter, notifying him that he had been terminated as of one day after he attempted to return to work, for “failure to return” to work. The employee filed a Complaint alleging disability discrimination, retaliation and failure to provide a reasonable accommodation in the form of a request to take extended medical leave, in violation of NJLAD and interference with his rights under the federal FMLA. After disposition of pretrial motions, two claims were presented to the jury; disability retaliation and failure to accommodate a request to grant extended leave. Evidence at the trial included the store manager’s email to a Human Resources Manager asking, “why we are not terminating the employee which resulted in the response that the termination would be a violation of company policy.”

The Third Circuit affirmed that the District Court’s denial of a post-trial motion and held that there was sufficient evidence in the record for a reasonable jury to find in favor of the employee on his disability retaliation claim under the NJLAD which requires that an employee establish that (1) the employee was in a protected class; (2) the employee engaged in protected activity known to the employer; (3) the employee was thereafter subjected to an adverse employment consequence; and (4) there is a causal link between the protected activity and the adverse employment consequence. The court rejected the employer’s argument that the employee had requested indefinite leave and thus had not engaged in a protected activity, noting that taking a disability/medical leave is protected by the NJLAD and the evidence supports the premise that the employee was retaliated against, as he was terminated, for engaging in that activity. The court cited to the fact that internal Wal-Mart emails discussed whether the employee could be terminated for taking leave, and his termination date for alleged “job abandonment” was after the employee attempted to return to work.

In Boles, the Court also rejected the employer’s challenge to the jury’s punitive damages award as the NJLAD permits punitive damages where there is evidence that (1) upper management’s actual participation in, or willful indifference to, the wrongful conduct; and (2) evidence that the wrongful conduct is especially egregious. The Court concluded that second-tier upper managers who were involved in their termination met these requirements because they were responsible for implementing policies and the employee attempted to contact his supervisors and others at Wal-Mart to no avail; Wal-Mart never told the employee that if he did not return by a certain date that he would be fired; and when the employee actually returned to work he was sent home and fired the next day for “job abandonment” with the termination decision being made by a supervisor to whom the employee had spoken about his expected return just weeks earlier.

Requests for accommodations for leave from work can present complex issues. For more information on workplace accommodations and disability discrimination under the Americans with Disabilities Act, the Pennsylvania Human Relations Act, and the New Jersey Law Against Discrimination see the Abramson Employment Law website at http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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Employers are Prohibited from Imposing Religious Beliefs on Employees

An employer violates state and federal law when the employer attempts to impose its own religious beliefs on an employee and then takes action against an employee who objects to efforts to impose the employer’s religion into the workplace. A court was confronted with this situation in Mathis v. Christian Heating and Air Conditioning, Inc. (E. D. Pa. no 13-cv- 3740)(January 26, 2016)(Dubois, J.), where the employee was a heating and air conditioning installation mechanic employed by a HVAC company. The owner, president, and general manager of the employer, a “born again” Christian, testified that he named the company, Christian Heating & Air Conditioning because it was “dedicated to the Lord.” Employees drive red trucks with a dove logo, which symbolizes the Holy Spirit and the owner testified that as a born again Christian he has a duty to spread the word of God and encourage others to convert to Christianity. All employees at the workplace are required to wear an I.D. badge that displays their name and a photograph on the front, and a portion of Christian HVAC’s mission statement on the back which reads: “This Company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the Lord. Treating employees and customers as we would want to be treated along with running a business as if we are all part of one big family is our plan.”

In Mathis, the employee, an atheist who does not have any religious beliefs, filed claims for unlawful termination, retaliation, and denial of a reasonable accommodation under Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act (PHRA), alleging that his employment was terminated on the basis of religious discrimination and in retaliation for the exercise of his religious beliefs as an atheist. Specifically, the employee alleged he was fired for covering the employer’s religious mission statement on the back of his employee I.D. badge. When the owner often told the employee that he should attend church; the employee would respond that he did not appreciate you talking to me like this. I don’t appreciate you trying to push your religion. The employee spoke to other employees and his immediate supervisor about what he considered to be religious harassment. The employee placed a piece of tape over the back of his I.D. badge in order to cover up the mission statement because, as an atheist, he did not agree with what he perceived to be its religious message. The employee advised other employees and possibly his supervisor that he had covered the mission statement because he did not agree with it and felt that employees should not have to wear a religious statement because of somebody else’s religion.

When the owner of the business discovered that the employee had covered the mission statement on the back of the badge he said, “You’re going to wear it or you’re done.” In response, the employee again told the owner that he disagreed with him trying to push his religion on him. Eventually, the owner said that by refusing to wear the badge as required by company policy, the employee “quit” but the employee was ordered to leave the workplace and was driven home by another employee.

Religious discrimination claims are subject to Title VII and the PHRA which provide that it is an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s religion. The term religion includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. In Mathis, the employee asserted claims under three theories: (1) he was terminated due to his religious beliefs, (2) he was denied a reasonable religious accommodation, and (3) he was terminated in retaliation for requesting a reasonable religious accommodation.

To establish a prima facie failure to accommodate religion claim, an employee must show: (1) he holds a sincere religious belief that conflicts with a job requirement; (2) he informed the employer of the conflict; and (3) he was disciplined for failing to comply with the conflicting requirement. The burden then shifts to the employer to show either (1) it made a good-faith effort to reasonably accommodate the religious belief, or (2) such an accommodation would work an undue hardship upon the employer and its business. The court found that the employee presented sufficient evidence for a reasonable jury to conclude that the employee informed the employer of his religious-based objection to wearing the I.D. badge with the employer’s defendant’s mission statement on the reverse side and that a reasonable fact finder could infer that the employer failed to accommodate the employee because of the employee’s atheism. The Court also found that a reasonable trier of fact could infer that the employer terminated the employee’s employment with the motive of avoiding accommodation. The court also rejected the employer’s argument that the accommodation sought, removal of the religious message, would require the suppression of free speech and the free exercise of religion.

Religious retaliation claims require a showing of (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action. In Mathis, the court held that a jury could conclude that the employee had a reasonable belief that the activities he opposed, recommendations that he attend church and the employer’s requirement that he display its religious mission statement on his I.D. badge, could be unlawful and the employer understood that the employee had a religious-based objection, which would support a finding that the employee opposed a specific employment practice on religious grounds and engaged in protected activity.

In Mathis, the court also rejected the employer’s claim that accommodating the employee would substantially burden the employer’s sincerely held religious beliefs in violation of the Religious Freedom Restoration Act (RFRA) which provides: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person if it (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The Court found that RFRA was not an affirmative defense because the lawsuit was filed by an individual, and not the government and the RFRA only applies to lawsuits filed by the government.

For more information on religious discrimination at the workplace and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2130159.html

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Employee’s Retaliation for Reporting Sexual Harassment Claims Proceed to Trial

When an employee complains that the employee is experiencing sexual harassment at the workplace, makes formal complaints about sexual harassment and is terminated shortly thereafter, an employee has a viable retaliation claim under federal and state law. In Betz v. Temple Health Systems. E. D. Pa. (January 13, 2016) (Pappert, J.), the court recently ruled in favor of an employee, finding that the employee’s retaliation claims should proceed to trial

In Betz, the employee, a registered nurse, repeatedly complained to her supervisors and executive management about persistent sexual harassment, inappropriate touching and groping and at least one instance where the sexual activity was directed at the employee when someone came up and grabbed her right in the back of her butt with a full hand. On one occasion when the employee complained, her manager responded “Come on. You know this is how my girls play.'” After another employee was terminated at the workplace, a manager told the employee, “i]f you don’t shut your mouth, you’re next.”
The employer investigated the employee’s allegations and determined that the employee’s complaints did not amount to sexual harassment or retaliation. After the employee concluded that her complaints were not addressed, the employee filed a Charge of discrimination with the Equal Employment Opportunity Commission. Shortly thereafter, the employer suspended and then fired the employee. The employer alleged that the suspension and termination were not in retaliation for the employee’s complaints, but rather the result of a serious medical error that the employee committed, which she subsequently attempted to hide by altering patient records.

Federal and state laws prohibit retaliation. It is an unlawful employment practice for an employer to discriminate against an employee because the employee has opposed any practice made an unlawful employment practice. To establish a prima facie case of retaliation, an employee must show that: (1) the employee engaged in protected conduct; (2) the employee was subject to an adverse employment action subsequent to such activity; and (3) that a causal link exists between the two. Temporal proximity between the protected activity and the adverse employment decision may be considered evidence of causation when the timing is close. Where temporal proximity is not unusually suggestive of a retaliatory motive, other evidence may include, but is not limited to, a pattern of antagonism by the employer that could link the adverse action with the employee complaint. Once the employee establishes a prima facie case of retaliation, the burden then shifts to the employer to provide a legitimate non-discriminatory reason for the employer’s action; the employer’s stated reason must simply permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision.

Once the employer has met its evidentiary burden of articulating a legitimate nondiscriminatory purpose for the termination of employment, the employee must provide direct or circumstantial evidence of pretext with sufficient probative force from which a jury could reasonably either: “(1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action The second method requires the employee to point to evidence with sufficient probative force that a jury could conclude by a preponderance of the evidence that retaliation was a motivating or determinative factor in the employment decision.

In Betz, the court found that the employer’s statements in combination with the relatively short timeframe between the filing of the employee’s EEOC charge and her suspension formed the basis for establishing a prima facie case of retaliation under Title VII and the PHRA. The court also found that the employer’s proffered reason was sufficient to allow a factfinder to conclude that the employer suspended and terminated the employee for a legitimate non-discriminatory reason. Then the court found there was sufficient evince of pretext because a factfinder could reasonably draw such a conclusion because a manager told the employee that she would be fired because if she kept on complaining, and that “[i]f you don’t shut your mouth, you’re next because you already complained and we’re sick of hearing from you”; and after the employee filed her EEOC Charge, the manager told her that she “made a big mistake by going to the EEOC.”

In rejecting the employer’s motion for summary judgment on the retaliation claims, the court noted that deciding in favor of the employer would involve assessing the credibility of the witnesses and weighing the evidence which is not the court’s role. Thus, the court ruled that the employee’s retaliation claims would be decided by a jury at a trial.

For more information on retaliation, sexual harassment and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-2130157.html, http://www.job-discrimination.com/lawyer-attorney-2130165.html

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Terminated Employee “Associated” with Disabled Person Proceeds with ADA Claim

There are occasions when an employee has a need to take a leave from work to assist in the care of a disabled spouse. In certain circumstances where the employer subsequently terminates the employee, the employee may have a claim for “association discrimination” under the Americans with Disabilities Act.

In Pollere v. USIG Pennsylvania, Inc. (E.D. Pa.) (December 18, 2015, McHugh, J.), the employee’s wife began suffering from spinal meningitis which impaired her ability to walk, eat, sleep, and care for herself. As a result of her condition, the wife was hospitalized and the husband took time off from work pursuant to the Family and Medical Leave Act (“FMLA”) to care for his ailing wife. Upon his return to work the employee had a flare up of an unrelated illness, he was hospitalized for two days and when he returned to work, he received an “Employee Performance Notice” that stated that he had used up all of his medical leave and that he left work early on several days. Thereafter, the employee was only able to work sparingly for a period of time and he was readmitted to the hospital. During the absence, the employee and his wife kept the employer informed about his condition. Then the employee received a letter from the employer’s head of human resources, informing him that he needed to provide a doctor’s note explaining his situation and his job would be considered abandoned if he did not promptly respond by a certain date. The employee contacted HR by that date but did not provide a doctor’s note until three days later. In the interim the employee received a letter stating that his frequent absences were being treated as a resignation and his employment status was being changed to “inactive.”

The ADA prohibits employers from discriminating against “a qualified individual on the basis of a disability”, which is defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. ADA protections are not limited to disabled employees and includes adverse employment actions against qualified individuals because of their association with a disabled individual. Thus, under the ADA, employers are prohibited from terminating the employment of an employee because of the known disability of an individual with whom the employee is known to have a relationship or association.

In Pollere, the court noted that discrimination by association provision draws a material distinction between firing an employee because of a relative’s disability and firing an employee because of the need to take time off to care for the relative. An employee is protected under the discrimination by association provision if the employee suffers an adverse employment action because of the known disability of an individual with whom the qualified individual has an association or the employer fears or assumes that the employee may have to miss work to care for a disabled relative. Thus, for an employee to prevail on a disability discrimination by association claim, an employee must prove that: (1) he was qualified at the time of the adverse employment action; (2) he was subject to an adverse employment action; (3) at the time of the adverse employment action, the employee was known by his employer to have a relative or an associate with a disability; and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the termination decision.

In Pollere, the court held that the employee could proceed with his claim under the discrimination by association provision of the ADA as there was no dispute that the employee was qualified for his job, that he was subject to an adverse employment action, that the employer knew of the employee’s wife’s disability, and at the early stage of the litigation the employee alleged facts that would permit an inference that his wife’s disability was a determinative factor in the employer’s termination decision as the employer referenced the employee’s use of 12 weeks of FMLA leave to care for his wife and the time the employee missed from work was a combination of time spent caring for his wife, and additional time because of his own medical challenges.

Disability claims often present complex issues. For more information on the Americans with Disabilities Act, the Pennsylvania Human Relations Act, Disability Discrimination, and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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Terminated Employee’s Disability Discrimination and Retaliation Claims Proceed

When an employee with a long history of service to an employer is terminated after developing a disability, shortly after requesting workplace accommodations, determination of the employer’s motivation is often left to a jury. In Gumina v. Rite Aid Corp., No. 3:14-CV-99, 2015 WL 4545465 (M.D. Pa. July 28, 2015), a long-term Rite Aid store manager filed a lawsuit for disability discrimination and retaliation under the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA). The employer admitted that the employee had an extensive work history as being well-organized with a friendly, good personality, never received complaints from staff or customers, and good communication skills. For the most part had “exceptional” or “above expectations” annual performance reviews. The employee was diagnosed with severe arthritis in both knees which impaired his ability to stand and walk around the store.

In Gumina,the employer issued a Written Counseling to the employee advising him that his store had “fallen behind” and that he must make immediate and sustained improvement which was the first disciplinary action he had received in more than 20 years of employment, thereafter the employee received a Final Written Warning advising him that his job performance had not improved since the Written Counseling and that he “must be able to meet and perform all of the responsibilities in his job description. In the same time frame the employer was seeking information from the employee’s treating physician concerning (1) how long he would be able to stand and/or walk through the store without a break; (2) how frequently he would be able to stoop, kneel, crouch and/or crawl; and (3) whether he could occasionally climb stairs and/or ladders. The physician responded that the employee could stand and walk for ten to fifteen minutes before his knee pain became severe; bend briefly but not all the way to the floor because of unsteady balance; and could climb incline stairs one at a time slowly provided a sturdy hand railing was available; and that he should not attempt to climb ladders. Shortly thereafter, the employee received a letter advising him that his employment was terminated because the employer claimed that he could not meet the requirements of the job. While the Court noted that there is no dispute that the employee was unable to meet several of the “Physical Demands” in the job description, the employee has made several job accommodation requests including being transferred to a position in which he would walk and stand less as long as he did not have to travel more than one hour to the job site, and adding some hourly employee hours at the store so that other employees could perform certain tasks.

To state a prima facie case under the ADA, an employee must establish that he (1) has a disability (2) is a “qualified individual”, and (3) has suffered an adverse employment decision as a result of that disability. To be a “qualified individual” an employee must demonstrate that with or without reasonable accommodation, he can perform the essential functions of the employment position that such individual holds or desires.” In Gumina, the court noted that the case will ultimately be decided by answering whether the employee has the physical capacity to “perform the essential functions of the position. In order to make this determination the following evidence must be considered: the employer’s judgment as to which functions are essential; written job descriptions prepared before advertising or interviewing applicants for the job; the amount of time spend on the job performing the function; the consequences of not requiring the incumbent to perform the function; and the work experience of others.

In Gumina, the court concluded that reasonable jurors could conclude either way: that the employer’s reasons for firing were born of his inability to perform the essential functions; or that the stated reason for firing Plaintiff was related only to the fact of his disability, a pretextual reason. Thus, the Court denied each parties’ Motion for Summary Judgment and determined that the case must proceed to trial so that a jury could evaluate the competing testimony of the employee and the employer to make the determination.

One other significant issue arose in Gumina regarding the fact that ultimately the employee applied for Social Security Disability Insurance Benefits. The employer claimed that the fact that the employee received benefits was inconsistent with his assertion that he could perform the job of a Rite Aid store manager with appropriate accommodations. The Court noted that since the Social Security Administration does not take into account the possibility of reasonable accommodation in determining SSDI eligibility, an ADA plaintiff’s claim that he can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that he could not perform his own job or other jobs without it.

For more information on the Americans with Disabilities Act, disability Discrimination, age discrimination and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126511.htm, http://www.job-discrimination.com/lawyer-attorney-1126515.html.

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Retaliation: Employee Who Complains About Race Discrimination and is Terminated Has Retaliation Claim

Employment laws protect employees from retaliation when an employee complains that he is being discriminated against at the workplace. In Braddock v SEPTA (E. D. Pa. April 21, 2015 (O’Neill, J.), the employee worked as the only black male Yard Master for SEPTA for over three decades. The employee concluded that he was experiencing what he perceived to be racial discrimination at his workplace, because he was being “treated differently than Caucasian Yard Masters” by his supervisor, and other employees. The employee complained to the appropriate individuals, and eventually was fired. The employee filed a retaliation claim against his employer alleging that his termination was directly correlated to the race discrimination complaints that he made.

After proceeding though discovery, the employer filed a motion for a summary judgment, claiming that the employee failed to make a showing sufficient to establish the existence of an element essential to a retaliation claim. In order to establish a case of retaliation, an employee is required to show 1) that the employee engaged in protected employee activity; 2) an adverse action by the employer, either after or contemporaneous with the employee’s protected activity; and 3) a casual connection between the employee’s protected activity and the employer’s adverse action. Protected activity, under Title VII includes, “opposition to unlawful discrimination and protects an employee who complains about employer conduct he or she reasonably believes to be an unlawful employment practice, whether or not the conduct is actually protected discrimination under the law.

In Braddock, “prior to his termination, during a telephone call with his supervisor the employee testified that he attempted to complain over the phone to his supervisor that he was…being racially discriminated against…and that he was being treated differently than other Yard Masters.” The employee testified that his supervisor cut him off and accused him of calling the supervisor a racist; the employee then denied calling the supervisor a racist. The supervisor did not deny the existence of the phone call, and testified that the employee called him a racist and the supervisor stated that the employee said that the supervisor was out to get him. The court found that there was undisputed testimony that establishes the only reason for the call was to inform the supervisor and other union officials of the conduct at issue.

The employee file a motion for summary judgment arguing that, there is no issue of material fact regarding whether Braddock engaged in protected conduct and that therefore Braddock cannot sustain a claim of retaliation. The employer argued that the employee’s allegations were vague and self-serving, and not “objectively reasonable to constitute protected activity.” However, the court found that evidence suggests that Braddock did not simply report these issues of racism objectively, but with opposition to it, which constitutes protected activity under Title VII.

In Braddock, the court found that there are no undisputed issues of material fact regarding the complaint of racial discrimination to the employer’s EEOC office prior to the employees termination and there was evidence of a discussion of the employees complaints of racial discrimination prior to Braddock’s termination and the supervisor conceded that the fact that the employee called him a racist was at least one reason for the employers decision to terminate the employee. The Court held that even if a written complaint had not been filed, the other complaints may be sufficient to establish a retaliation claim since Title VII claims can involve formal charges of discrimination as well as informal protests of discriminatory employment practices, including making complaints to management. As a consequence, the court found that the employee established protected action, and the employee could proceed to trial with his retaliation claim.

For more information on retaliation and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126498.html. You can

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