Employee with Chrohn’s Disease has Disability Discrimination, Failure to Reasonably Accommodate & FMLA Claims

Employees who suffer from documented disabilities, require medical leave from work and who are terminated by employers, may have claims for disability discrimination under the American with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA); as well as claims under the Family and Medical Leave Act (FMLA).

In Knight v. Callebaut USA Service Company, E. D. Pa. no. 15-6450 (December 19, 2016, Hart, M. J.), the employee was a production supervisor at a cocoa and chocolate factory diagnosed with Chrohn’s disease. The employee was hospitalized twice after experiencing abdominal pain; received treatment for bowel obstructions; and experienced diarrhea multiple times every day. Due to flare ups of his medical condition, the employee needed brief periodic breaks from ten minutes to one hour from zero to three times per shift while he was working to allow him to vomit outside. The employee had conversations with the employer’s Human Resources Manager and Site Manager to let them know what was going on. After a second three-day hospitalization, the employee was advised that his employment was terminated for an alleged theft of time and not doing his job by being on the plant floor for extended times during his work hours. The employer did not discipline the employee or allow him to explain why he was outside of the facility before terminating his employment. The employee alleged that the employer terminated his employment because of his actual/perceived disabilities and/or in retaliation for requesting reasonable accommodations; and that the employer never properly advised the employee of his FMLA rights and discouraged him from applying for FMLA leave.

To establish a prima facie case of disability discrimination, an employee must show that: (1) the employee is disabled within the meaning of the ADA; (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) the employee suffered an adverse employment decision based on that disability. The burden then shifts to the employer to articulate a legitimate business reason for the termination of employment and then the employee must then demonstrate that the stated reason is merely a pretext for discrimination.

To satisfy the ADA’s definition of disability, an employee may demonstrate: (1) an actual mental or physical impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) that the employer regarded the employee as having a disability.

To establish a failure to accommodate a disability under the ADA, an employee must prove: (1) the employee is disabled, (2) is otherwise qualified to perform essential functions of the job, with or without reasonable accommodations by the employer, and (3) the employer refused to provide a proposed reasonable accommodation, or failed to engage in an interactive process after the employee requested an available reasonable accommodation.

In Knight, the court held that the employer was at least aware of the employee’s health condition and there was disputed evidence that there was a request for some sort of leave of absence for medical treatment, which could constitute a reasonable accommodation under the ADA. Thus, there was sufficient evidence for the case to proceed to trial on the ADA request for reasonable accommodation claim. The court also concluded that the employee could demonstrate a prima facie case of disability discrimination since it was undisputed that the employee requested leave for medical treatment when admitted to the hospital. Further, given that the employee was terminated immediately after returning from a leave that occurred after he had to leave his shift for medical reasons, there was sufficient evidence to create a factual question of pretext, permitting the ADA disability discrimination claim to proceed to trial.

The FMLA provides that it is unlawful for any employer to interfere with, restrain, or deny the exercise of FMLA rights. To establish FMLA interference, an employee must demonstrate: (1) that the employee was entitled to benefits under the FMLA and (2) the employer denied FMLA benefits. An employee is not required to expressly invoke the FMLA; the employee must only provide notice of the request for leave and state a qualifying reason for the leave. A scheduled block of time for treatment and testing or intermittent leave is protected by the FMLA and an employer’s failure to advise an employee of FMLA rights can constitute an interference of the employee’s FMLA rights.

In Kline, the court held that the employee provided sufficient facts to support a FMLA interference claim in that he was deprived of the right to make informed decisions and to plan accordingly when structuring his leave because he was not advised of his rights to 12 weeks or intermittent periods of job protected leave.

In a FMLA retaliation claim, an employee must demonstrate that (1) the employee is protected under the FMLA, (2) the employee suffered an adverse employment action, and (3) the adverse action was causally related to the exercise of FMLA rights. Then the burden shifts to the employee to provide evidence of a legitimate reason for the adverse employment action. Once the employer sets forth a legitimate reason, the employee must point to some evidence that the employer’s reasons for the adverse action are pretextual.

In Kline, the court held that the employee’s need to take time off to treat his medical condition was both a request for accommodation under the ADA and a request for leave under the FMLA. In so doing, the court found that the fact that the employer classified the employee’s leave as FMLA is sufficient to set forth a prima facie case that FMLA rights had been invoked and that the termination of employment was clearly an adverse employment action. As to the casual connection requirement, the fact that employment was terminated immediately upon return from leave was sufficient evidence of causation; particularly combined with fact that the employee has no prior disciplinary history. Thus, the FMLA retaliation claim could also proceed to trial.

For more information on the Family and Medical Leave Act (FMLA), Disability Discrimination and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126523.html, job-discrimination.com/lawyer-attorney-1126511.htm, http://www.job-discrimination.com/lawyer-attorney-2122109.html

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Female Pennsylvania Manufacturing Employee’s Sexual Harassment, Retaliation & Sex Discrimination Claims Proceed to Trial

Female employees who work in male dominated manufacturing production environments may confront unique issues at the workplace. In Vollmar v. SPS Technologies, LLC E. D. Pa. no. 15-cv-2087 (December 2, 2016, Pratter J.), the court denied a motion for summary judgment, ruling that a female Pennsylvania employee can proceed to trial with her sex discrimination, retaliation, and sexual harassment claims against her current employer. The employee, who has worked for her employer for 27 years in a manufacturing plant where men comprise over 90% of the workforce, alleged that she was repeatedly exposed to sexual harassment at the workplace where there were ever-present sexual overtones of materials.

In Vollmar, the employee’s evidence included sexually oriented material at the workplace including a sign on a refrigerator that included phrases such as “My sexual preference is . . . often” and “I am not a bitch. I’ve just been in a very, very bad mood . . . for the past 30 years”; photographs of women, one with the word “PIG” written across it; a small box containing four small plastic or candy breasts, where the lid read “Bet you can’t eat just one”; and a Penthouse pornographic magazine. The employee also alleged that coworkers and managers regularly directed sexist comments toward her, including calling her a “bitch” several times a week; she had been told that “It’s just like a woman to do that”; she was regularly told that she did not know what she was talking about because she was a woman; and evidence that a coworker had a habit of staring at her during work hours.

Ironically, the female employee was being investigating by Human Resources for a code of conduct violation regarding a relationship with a male coworker. At that time, she complained about the untoward comments made to her and disparate treatment. The employee testified that
that Human Resources representatives acknowledged that bringing the toy breasts or a pornographic magazine into the workplace would violate SPS’s Sexual Harassment policies. Following the investigation, the female employee received a written warning for a violation of the Code and returned to work after a 10-day suspension and the male coworker was terminated.

To establish what the law terms a prima facie case of a sexually hostile work environment, an employee must show: (1) the employee suffered intentional discrimination because of sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would detrimentally affect a reasonable person in that position; and (5) the existence of respondent superior (employer) liability.

To determine whether an environment is sufficiently hostile or abusive, courts look to a number of factors, including the frequency of the discriminatory conduct; its severity; whether the conduct at issue is physically threatening or humiliating, or a mere offensive utterance; and whether the conduct unreasonably interferes with an employee’s work performance. Workplace conduct may be severe, pervasive, or both, as a single incident of severe harassment in the workplace may contaminate the work place to such a high degree that it will be considered hostile. Where the harassment is not severe, a collection of incidents of harassment must occur either in concert or with regularity. The use of derogatory and insulting terms relating to women at the and the posting of pornographic pictures in common areas and in personal work spaces may serve as evidence of a hostile environment.

In Vollmar, the court found that considering the frequency and variety of the types of gender-based and sexual language, material, and conduct a jury could determine that the harassment was severe or pervasive.

It is important to keep in mind that even where there is sexual harassment, in some instances the employer is not automatically liable for the conduct. Employer liability may depend on whether the sexual harasser is the employee’s coworker or a manager / supervisor. Unlike nonsupervisory harassment, employers can be liable for harassment by supervisors with authority even if the employer did not have notice of the harassment. In circumstances where the sexual harassment is not by a manager or supervisor, an employee must show that management level employees had actual or constructive knowledge of the sexual harassment and the employer failed to take prompt and appropriate remedial action such as failing to train, discipline or terminate employment upon receiving notice of the sexual harassment.

The foundation of a retaliation claim is that the employee reported conduct that is protected by the law and the employer took action against the employee for reporting the conduct. In evaluating retaliation claims in Pennsylvania, federal courts apply the McDonnell Douglas three-part burden-shifting framework which requires that an employee must first establish a prima facie case, showing that the employee engaged in protected activity; the employer took an adverse employment action against the employee; and there was a causal connection between the employee’s participation in the protected activity and the adverse employment action. Once the employee meets this burden, the employer must offer a legitimate, non-discriminatory reason for the adverse employment action. Then the employee must show pretext by pointing to some evidence from which a jury could reasonably either disbelieve the employer’s articulated legitimate reason; or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

To make out a prima facie case of retaliation, a plaintiff must also show evidence that establishes a causal link between the protected activity and the adverse action. In Vollmar the employee argued that the record established a causal link between the adverse action and her complaint as the employee complained about certain conduct, as well as other sexual harassment, as late as seven days before she was suspended. The court held that the written warning constitutes an adverse action and that a reasonable jury could find that such action constitutes retaliation.

Andrew Abramson of Employment Law represent Pennsylvania employees who have been subjected to sexual harassment and retaliation by their employers. For more information on sexual harassment and retaliation see http://www.job-discrimination.com/sexual-harassment.html.

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Caucasian Television Anchor Proceeds with Race Discrimination Case

In Pennsylvania employment discrimination cases, evidence that can be used to establish race discrimination by a terminated employee may take many forms. A recent decision in O’Toole v. Hearst Stations, Inc., W. D. Pa.  no. 16-879 (November 18, 2016) (Eddy, M. J.), demonstrates the type of evidence that a Caucasian employee may be able to use to attempt to establish that the true reason for the termination of employment is race discrimination.

In O’Toole, the employee was the main news anchor at a Pennsylvania television station who was repeatedly praised throughout her career for professional expertise, judgment, and work ethic; and she won more than 20 regional Emmy awards for broadcast excellence. As part of the employee’s duties as a reporter and anchor, the employer encouraged the employee to use a Facebook page as a platform to engage and communicate with the television audience about the stories the employee covered. The employee covered a story involving a shooting that resulted in six deaths. The employee wrote on the Facebook page, “you needn’t be a criminal profiler to draw a mental sketch of the killers who broke so many hearts two weeks ago “… they are young black men, likely in their teens or early 20s.” The employee also wrote a second Facebook comment praising a young African-American man who worked in an area restaurant writing, “I wonder how long it has been since someone told him he was special.”

The employee’s Facebook posts caused considerable controversy, and complaints from individuals and organizations purporting to speak on behalf of the African-American community. The employer’s management met with one organization to discuss the employee and issues of racial diversity. The same day, the employer terminated the employee, stating that the employer’s reason for firing was because the employee’s posts were inconsistent with the company’s ethics and journalistic standards.

The employee filed litigation in federal court alleging that she was fired because of her race in violation of 42 U.S.C. §1981. The employee argued that if she had written the same exact comments about white criminal suspects she would not have been fired, and that if the employee was not white but made the same comments, she would not have been fired. The employee also alleged that her Facebook posts were clearly and obviously not intended to be racially offensive and that the employer admitted that she is not a racist and that she was not posting racially offensive material. Thus, the employee alleged that the employer’s publicly stated reason for the termination of her employment, that the postings were inconsistent with the company’s ethics and journalistic standards, is pretextual.

In order to prove a what the law terms as a “prima facie case” of race discrimination, an employee must show that the employee (1) is a member of a protected class; (2) the employee is qualified for the position; (3) the employee suffered an adverse employment action, and (4) that circumstances exist that give rise to an inference of unlawful discrimination. The fourth element can be established through evidence that establishes that other employees outside the protected class were treated differently, or when an employee points to circumstantial evidence that otherwise shows a causal nexus between the employee’s membership in a protected class and the adverse employment action.

In O’Toole, the employee alleged that the evidence of circumstances that give rise to an inference of unlawful discrimination consists of the employer consistently downplaying misconduct by similarly situated reporters and anchors because of their race or gender, and retaining or hiring news reporters and anchors irrespective of their public misconduct. The employee identified two other employees as potential comparators. In denying the Motion to Dismiss, the Court relied upon law in Pennsylvania federal courts that holds that whether individuals are similarly situated is a fact-intensive inquiry which has to be made on a case-by-case basis, rather than in a mechanistic and inflexible manner, and as a consequence, a Motion to Dismiss at the onset of case is not the appropriate stage of the litigation to decide whether an employee outside the protected class who was treated differently is similarly situated. The court also held that evidence that the employer stated that the employee is not racist and that her comments were not racially offensive could be used to establish a reasonable inference of proof of circumstances that give rise to an inference of unlawful discrimination.

Andrew Abramson is a Philadelphia area employment discrimination attorney. For more information about race discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2130158.html.

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Employee Eligible for Unemployment Benefits When Policy Violation Protects Patient Care

As a Pennsylvania unemployment compensation attorney who represents employees at unemployment compensation hearings where the employee is appealing a denial of benefits, I have observed that many employers do not understand that the fact that the employer may have a legitimate reason for terminating an employee, does not mean that the employee will be denied the right to collect unemployment compensation benefits. Employers frequently confuse the right to terminate an employee with the employee’s right to collect unemployment compensation benefits. Pennsylvania unemployment compensation law recognizes that while Pennsylvania generally follows the principle of employment at will, and that the employer has the right to terminate employee for any non-discriminatory reason, including a violation of the employer’s policy, that right does not preclude the employee from collecting unemployment compensation benefits unless the employee engages in willful misconduct at the workplace.

Pennsylvania unemployment law provides that an employee is ineligible for unemployment compensation benefits when the employee’s termination is due to willful misconduct connected with the employee’s work. Pennsylvania courts have defined “willful misconduct” as a willful disregard for the employer’s interests; a deliberate violation of the employer’s rules; disregard for standards of behavior than an employer can expect; or negligence that reflects an intentional disregard of the interest of the employer or an employee’s duties to an employer. The employer has the burden of proving willful misconduct. An employer alleging willful misconduct must show that the employee violated the employer’s rules or policies and the employee’s actions were intentional or deliberate. Once the employer meets this burden, the burden then shifts to the employee to show good cause for a rule or policy violation.

The Commonwealth Court’s recent decision in Washington Health Systems Greene v. Unemployment Compensation Board of Review (Cmwlth Ct. Pa. September 21, 2016) demonstrates that an employee may be entitled to benefits even when a policy violation occurs. The employee, an emergency department registered nurse, was involved in the treatment of a patient at the hospital when the patient’s companion was also present in the emergency room. The employee was outside the treatment room gathering information and recording it on a computer while the companion was pacing outside the treatment room, loudly proclaiming that he wanted another nurse to be removed from the treatment room. The employee testified that the companion loudly threatened to “knock his teeth in” and made another threat. The employee testified that he threatened to call hospital security and he had to speak loudly to the companion to speak over him. The employee was subsequently terminated for violating the employer’s policies which prohibit disrespectful or unprofessional behavior at the workplace, and for conduct detrimental to a patient’s care and use of profanity.

The Court concluded that the Unemployment Compensation Board was correct when it found that the Claimant employee was eligible for unemployment compensation benefits because of the patient’s emergency situation, the employee’s active participation in screening for care, and the employee’s proximity to the companion. Thus, under the circumstances it was not possible to conclude that the employee acted unreasonably by failing to immediately notify his supervisor of the threat, as the employer’s policy technically required. In addition, the record supported the fact that it was the companion, not the claimant, who acted unreasonably and disrupted the patient’s care and that the employee’s actions were reasonable under the circumstances.

There are many nuances in Pennsylvania unemployment compensation law. Many times, employees are successful when they retain an experienced Pennsylvania unemployment compensation benefits attorney to appeal a decision denying unemployment benefits. The attorney will prepare the employee for the Referee’s hearing and represent the employee at the unemployment compensation hearing. For more information about Pennsylvania unemployment compensation claims and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1491925.html

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Gay Male Proceeds with Constructive Discharge Claim Based on Sexually Hostile Work Environment

Title VII, the federal discrimination law that protects employment discrimination in Pennsylvania based on race, national origin, religion and sex does not explicitly provide protection on the basis of sexual orientation. Nevertheless, federal courts have found that the law can be interpreted to protect gay employees under certain circumstances. In EEOC v. Scott Medical Center (W. D Pa. November 4, 2016) (Bisson, J.), the court held that Title VII protects a Pennsylvania employee who is subject to discrimination on the basis of sexual orientation, as the law protects “discrimination because sex.”

In Scott Medical Center, a gay male Pennsylvania employee worked in a telemarketing position. The employee alleged that he was subject to discriminatory behavior by the employer’s telemarking manager and that he was constructively discharged by the employer, due to an allegedly sexually hostile work environment perpetrated by the employer’s telemarking manager. The employee alleged that the employer manager’s discriminatory behavior subjected him to a continuing course of unwelcome and offensive harassment because of his sex and that the harassment was of sufficient severity and/or pervasiveness to create a hostile work environment because of the employee’s sex. In effect, the male employee was targeted because he did not conform to what the manager believed was acceptable or expected behavior for a male because of his association with members of the same sex, rather than the opposite sex, and the harassment created a work environment that was both subjectively and objectively hostile and intolerable because of sex.

The workplace behavior at issue included routine unwelcome and offensive comments by the manager, including regularly calling the employee fag, faggot and queer; and making statements such as “f-ing” queer can’t do your job. These harassing comments were being made at least three to four times a week. Additionally, upon learning that the employee was gay and had a male partner, the employee’s manager made highly offensive statements to the employee about the employee’s relationship such as saying, I always wondered how you fags have sex, I don’t understand how you f-ing fags have sex and who’s the butch and who is the bitch? The male employee complained about the manager’s conduct directly to the President/Chief Executive Officer of the employer, who shrugged it off and took no action at all to stop the harassment, which continued. The employer’s failure to engage in prompt and effective action in response to the ongoing harassment resulted in the male employee’s constructive discharge of employment when he quit.

Ironically, the situation involving the gay male employee first came to the EEOC’s attention as part of an investigation of charges of discrimination brought by five of the same manager’s former female co-workers, who alleged they had been subjected to discrimination because of sex based on sexual harassment and unwanted touching so frequently and severely that it created a hostile and offensive work environment and resulted in adverse employment decisions.

In Scott Medical Center, the court noted that the Supreme Court has consistently applied a broad interpretation of the “because of sex” language in Title VII and in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82 (1998), the Supreme Court held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The court noted that “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality” and the court endorsed the EEOC’s statement that discriminating against a person because of the sex of that person’s romantic partner necessarily involves stereotypes about ‘proper’ roles in sexual relationships – that men are and should only be sexually attracted to women, not men.” The court also noted that the Supreme Court’s recent opinion legalizing gay marriage demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation and noted that “someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Thus, the Court concluded that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination “because of sex.”

Andrew Abramson and Abramson Employment Law represent Pennsylvania employees who are subject to discrimination and sexual harassment at the workplace. For more information see our website at http://www.job-discrimination.com/

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Pennsylvania Whistleblower Law Provides Substantial Damages for Public Employees Who Report Wrongdoing . . . as McQueary Trial Shows

Former Penn State assistant football coach Mike McQueary’s Whistleblower lawsuit against Penn State demonstrates that the Pennsylvania Whistleblower Law provides substantial damages and protection to employees who report wrongdoing and then suffer retaliation at the workplace. In McQueary v. Penn State University, C.C.P. Centre Cty. no. 2012-1804 (Gavin S. J.), the trial judge awarded nearly $5 million in whistleblower damages to the former employee with attorney’s fees and costs incurred to be added at a later date.

McQueary witnessed retired Penn State football coach Jerry Sandusky engage in inappropriate sexual activity with a young boy in Penn State’s athletic facility. McQueary, after consultation with his father and a family friend, reported what he saw to his immediate supervisor, head football Coach Joe Paterno the next morning. Thereafter, McQueary met with the Athletic Director and a Penn State Administrator and repeated what he had told Paterno. Thereafter, the incident was reported to Penn State’s President. Ten years later, an Investigating Grand Jury’s presentment was released and public outcry and backlash erupted. Within days the Board of Trustees removed Coach Paterno and President Spanier from their positions. McQueary was then summoned to a meeting where the Acting Athletic Director placed McCreary on administrative leave with pay and stated, “your future status has not been determined.” McCreary was also informed that “all athletic facilities associated with the Penn State Football program” were off-limits, he was not permitted access to his office and he was required to tum in his keys, cell phone, and vehicle. One month later, McQueary was required to clean out his office and the following month, McQueary learned through a press conference given by the new Penn State President that he was no longer a Penn State employee.

McQueary filed a lawsuit under Pennsylvania’s Whistleblower Law asserting the termination of his employment was a wrongful discharge by his employer for his role in providing testimony to the investigating Grand Jury which charged Sandusky, and Penn State administrators with criminal offenses. Penn State asserted that McQueary was an at will employee whose employment was not renewed and that its decision was legitimate.

In order to prevail in a claim under the Pennsylvania Whistleblower Law, an employee must prove that (1) the employee performed services for wages for a public body, and (2) prior to the alleged reprisal (i.e. retaliatory action), the employee reported an instance of wrongdoing to the employer or appropriate authority. If the employee meets his burden, then the burden of proof shifts to the employer to prove that the employer took the action for separate and legitimate reasons which are not merely pretextual.

The court found that McQueary met his burden of proof because he was an employee who observed the interaction between Sandusky and the boy which constitutes wrongdoing as the conduct was a violation of the penal code of Pennsylvania; McQueary’s report of the conduct he observed to his employer was a good faith report; McQueary was requested to testify before the Investigating Grand Jury looking into the conduct of Sandusky; and McQueary’s employment contract was not renewed by Penn State after the presentment was made public.

Penn State’s defense was that McQueary’s contract expired and that new Head Football Coach did not have a place on his coaching staff for him, and/or McQueary’s contract was not renewed, as there was no other work for him and either/both of the decisions were based on legitimate reasons. The court held that Penn State’s asserted defenses must be analyzed in the context of its conduct both pre-and post-Grand Jury Presentment “as this is a case where actions speak louder than words.” The court held that McQueary fully cooperated with legal authorities which led in part, to criminal charges against Sandusky and Penn State administrators, and when the charges became public, threats were made which raised safety concerns. The response of Penn State was that McQueary’s job duties were changed, he was banned from his usual work place, benefits associated with his position were taken away, and his prospects for advancement destroyed. Further, while the Penn State President expressed his support for the administrators, he made no mention of support for McCreary, the employee who had come forward to report the inappropriate conduct. The court found that the “unmistakable conclusion to be drawn from his failure to mention Mr. McQueary is that he was not being supported by the University and that members of the athletic department should not support him either.” Other evidence relied upon by the court included a decision by the interim President that McQueary would not coach in a game against Nebraska without even seeking the input of the Interim Head Coach; the associate athletic director had previously given McQueary the highest possible performance rating; and there were open positions in the athletic department which McQueary was qualified to perform.

The Pennsylvania Whistleblower law requires an employee to come forward with “some evidence” of a connection between the report and retaliation by the employer. The court found that the objective evidence is that McQueary would not have been removed from his coaching position but for his involvement in the “Sandusky Matter” once it became public knowledge; Penn State had no cause grounds to terminate him; and the assertion that McQueary’s contract was not renewed for lack of available work is not credible. Thus, Penn State’s stated reasons for not renewing his contract are not separate and legitimate reasons within the meaning of the Whistleblower Law. Instead, Penn State’s stated reasons for not renewing its employee’s contract were pretextual; and McQueary was terminated in retaliation for his having reported what he saw and for cooperating with legal authorities.

As to damages, the Whistleblower Law provides for the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of those remedies; costs of litigation, and attorney fees. The Court considered expert witness reports and awarded McQueary $3,974,048.00 for past and future lost wages and related tax consequences, and an undetermined amount of a Ticket City Bowl game bonus paid to the other assistant football coaches but not McQueary. In addition, the court awarded McQueary $1,000,000.00 in non-economic damages, citing the maxim that “A good reputation is more valuable than money”; finding that McQueary was well-respected in the community and had a good reputation; Penn State knew that he had acted in accordance with its policy by reporting what he saw to Coach Paterno, Penn State decided not to set the record straight causing McQueary’s reputation to suffer, and that Penn State’s support of others and not McQueary caused him humiliation. The court has also permitted McQueary to submit to a detailed statement of the counsel fees, witness fees and costs of litigation to add to the recovery at a later date. In addition, to the whistleblower damages, an earlier jury verdict awarded McQueary $7.3 million for his separate defamation and misrepresentation claims.

Andrew Abramson and Abramson Employment Law represents employees who have whistleblower and employment termination claims. For more information on the Pennsylvania Whistleblower law, see http://www.job-discrimination.com/pennsylvania-whistleblower-law.html

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Email May Establish Employment Contract & Wage Payment and Collection Law Claim

While not advisable, there are occasions when executive employees are hired without a formal employment contract signed by the employer and employee. When a Pennsylvania employee performs work pursuant to the terms of a less formal agreement and is not paid, other written evidence may form the basis of an employment contract, as demonstrated in Miller v. Cerebain Biotech Corp. E. D. Pa. no. 16-3943 (November 8, 2016) (O’Neill, J.), where the court denied the employer’s Motion to Dismiss a Complaint.

In Miller, the plaintiff was hired to be a senior member of the management team to provide public relations, investor relations and corporate growth strategies and was to be an advisor available to the Chief Executive Officer. The parties agreed on compensation in the amount of $140,000 per year, plus $400 per month in on-going expenses as documented in an email. The executive then provided services to the corporation and after the executive was not paid for services provided, litigation was filed asserting claims for (1) breach of contract; (2) violation of the Pennsylvania Wage Payment and Collection Law; and (3) unjust enrichment.

The Pennsylvania Wage Payment and Collection Law (WPCL) provides that every employer shall pay all wages and benefits due to its employees. When an employee is not paid wages due, the WPCL provides a cause of action for the amount due plus an additional 25% of the amount due, attorneys’ fees and costs. One key feature of the WPCL is that it creates personal liability for a corporate officer with operational control of the employer. Thus, if the employer defaults on its wage payment obligations to an employee, a corporate officer may be personally liable directly to the employee for the wages due.

The WPCL only applies to employees, and not contractors; thus, there are occasions in which a dispute arises as to whether a person should be deemed an employee under Pennsylvania law. Pennsylvania courts consider many factors to determine whether an individual is an employee or an independent contractor, including the control of the manner that work is to be done; the terms of any agreement between the parties; the nature of the work or occupation; the skill required for performance; whether the person is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by the time or by the job; whether the work is part of the regular business of the employer; and the right to terminate the employment at any time.

In Miller, the defendants argued that the plaintiff was not an employee but rather an independent contractor, and even if the plaintiff was an employee, there was no valid employment agreement pursuant to which wages were due. The court rejected both arguments and found that the plaintiff sufficiently pled a WPCL claim by asserting that she was hired as a senior member of the management team to provide services relating to public and investor relations as well as corporate growth strategies, and the terms of employment were memorialized in an employment agreement in the form of an email that contained language suggestive of an employer-employee relationship.

The Pennsylvania Supreme Court has stated that the WPCL provides a means of recovering wages that are due pursuant to a contract and the WPCL does not create a right to compensation, rather, it provides a statutory remedy when the employer breaches a contractual obligation to pay earned wages. Thus, litigation under the WPCL may also include an issue as to whether there is a valid employment contract. Many reported Pennsylvania employment law cases provided that a plaintiff may proceed under the WPCL by establishing the formation of an implied oral contract between an employer and an employee. Under Pennsylvania law, an implied contract arises when the parties agree on the obligation to be incurred, but their intention, instead of being expressed in words, is inferred from the relationship between the parties and their conduct in light of the surrounding circumstances. In Miller, the court found that accepting all factual allegations of the complaint as true, the employee at a minimum, sufficiently pled the existence of an implied employment agreement, and while the e-mail reflects the existence of various uncertainties in the agreement, those uncertainties do not negate the existence of an employment agreement for purposes of the WPCL.

In Miller, the court also found that the employee had sufficiently pled a breach of employment contract claim in that the employee alleged that she was hired under an employment agreement to serve as a senior member of management team at a specific salary, the employee provided services pursuant to the agreement, and the employee was not paid for services rendered.

Where there is some uncertainly as to whether a contract exists, a plaintiff is permitted to plead alternative theories of recovery, asserting both breach of contract and unjust enrichment claims. Under Pennsylvania law, a cause of action for unjust enrichment is established when (1) a benefit is conferred on the defendant by the plaintiff; (2) there is appreciation of the benefit by the defendant; and (3) the defendant accepts and retains the benefit under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.

In Miller, the court permitted the unjust enrichment claim to proceed as the employee established that she conferred a benefit by creating the content for, and managing the development and launch of the corporate website, plans and social media strategy, the employer received the benefit of the work provided, and the employee asserted that the defendants were unjustly enriched because despite repeated promises to pay wages and expenses upon receiving an additional capital infusion, the plaintiff was not paid in full for services provided.

For more information on breach of employment contracts, the Pennsylvania Wage Payment and Collection Law and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-2122062.html, http://www.job-discrimination.com/lawyer-attorney-2122061.html

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Filed under Breach of Contract, Employment Law, Pennsylvania Wage Payment and Collection Law, Unjust Enrichment