Tag Archives: Hostile Work Environment

Husband Proceeds with Sex Based Hostile Work Environment Claim Against Employer Based on Wife’s Actions

Many employers have policies that restrict two members of the same family, such as a husband and wife, from working together in order to avoid nepotism, a conflict of interest and other issues that could allow a family related dispute to cause an issue at the workplace. Other employers permit two family members to work at the employer if they are in a different department, or they do not supervise each other. A recent Pennsylvania federal court decision in Reiser v. Concordia Lutheran Health, W. D. Pa. no. 16-959 (December 8, 2016, Bissoon, J.) demonstrates that employers who do not have these types of workplace restrictions may be exposed to liability under laws which protect retaliatory action against employees, such as sexual harassment.

In Reiser, the husband was an employee who worked as a Corporate Director of Rehabilitation at a senior and healthcare services provider with several locations. The employee’s wife, the daughter of the Chief Executive Officer, was employed by the same employer as a manager. When the marital relationship ended, bad feelings erupted, causing substantial problems at the workplace.

The wife confronted her husband in his office and asked him to renew their relationship before their divorce was final; when he refused, the wife stated that she would make his life “a living hell.” The wife then engaged in a series of harassing actions at work, including sending text messages using vulgar terms; telling other employees that the husband was an inadequate lover and a poor father; requiring the husband to use a computer program at work to track his whereabouts and the time that he spent using his mobile phone, while no other salaried, management level employee was required to do the same; falsely alleging that the husband was repeatedly staring at her and not working; using the performance evaluation process to accuse the husband of poor work performance, even though the work performance allegations conflicted with the performance data provided by the other facility managers; and reporting the husband to the police for a violating a protection from abuse order and not advising the police that the husband was an employee required to work at the designated location that day, with the intent of causing difficulty at the workplace as it would be nearly impossible for him to perform his duties and comply with the restrictions. The husband complained to human resources about the wife’s conduct but the employer took no action to address the situation and have the wife cease her actions.

In Reiser, the husband filed litigation against the employer claiming that the employer subjected him to a hostile work environment because of his sex. The employer filed a Motion to Dismiss, arguing that the employee’s hostile work environment claim fails because the actions at issue were not motivated by sex, but rather were the result of a family law dispute.

In order to establish a prima facie of a sexually hostile work environment based on gender, an employee must show that the employee (1) suffered intentional discrimination because of sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected the employee; and (iv) the discrimination would negatively affect a reasonable person in the employer’s position. For the harassment to be actionable, the workplace must be permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment.

In Reiser, the court denied the Motion to Dismiss and found that the husband alleged sufficient facts to support a sexually hostile work environment claim against the employer by showing that the wife’s actions were sufficiently severe and pervasive to have altered the terms and conditions of his employment, as the wife used her position as a management level employee and daughter of the employer’s Chief Executive Officer to harass the husband because of his refusal to renew their intimate relationship. As such, the court found that the husband sufficiently alleged that he was negatively impacted by the alleged harassment in the form of anxiety and depression and that the actions taken against him would negatively affect a reasonable person in the employee’s position.

Andrew Abramson is an experienced Pennsylvania employment law attorney who represents employees who have been subjected to sexual harassment and hostile work environments. Abramson Employment Law represents clients in Philadelphia, Montgomery County and surrounding areas. For more information on sexual harassment and retaliation see http://www.job-discrimination.com/sexual-harassment.html.

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Employer May be Liable for Sexual Harassment by Coworkers Who are not Supervisors

While an employer is not automatically liable for sexual harassment at the workplace when a coworker engages in sexual harassment, where the employer has notice of the sexual harassment and fails to take action to stop the harassment, the employer can be found liable. Employers are also liable for retaliation when they take action against employees for reporting sexual harassment.

In Rosh v. The Gold Standard Café at Penn, Inc., E. D. Pa no. 16-1676 (December 19, 2016, Surrick, J.), the employee, a restaurant prep cook alleged that she was sexually assaulted on multiple occasions. A co-worker grabbed her in the crotch area, made attempts to touch the employee’s breasts, consistently stared at her breasts, and intentionally touched the employee; and another co-worker attempted to touch employee and also made multiple sexually inappropriate comments.The employee told the coworkers to stop however, the conduct continued. The employee reported the sexual harassment to the two co-owner/managers who advised they would speak to the coworkers but the sexual harassment continued. Thereafter, the employee sent an email to the managers detailing the sexual harassment and also followed up with a letter. Thereafter, an owner/manager stopped speaking to the employee, reduced her work hours and told the employee to try to stop the harassment on her own. Shortly thereafter, the employee resigned because the employer refused to address her reports of sexual harassment and instead retaliated against her. The employee filed causes of action for a sexually hostile work environment, constructive discharge of employment and retaliation for reporting the harassment and the employer filed a Motion to Dismiss the Complaint.

In order for an employee to establish a sexually hostile work environment claim, an employee must prove that: (1) she suffered intentional discrimination because of her sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the employer is subject to liability under the theory of respondeat superior. In considering whether the work environment was hostile, courts must consider the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

When the harasser and victim are of the opposite sex, there is a reasonable inference that the harasser is acting because of the victim’s sex. With regard to meeting the severe or pervasive standard, simple teasing, offhand comments and isolated incidents (unless extremely serious) will not typically amount to discriminatory changes in the terms and conditions of employment. If management-level employees have actual or constructive knowledge about the existence of a sexually hostile environment and fail to take prompt and adequate remedial action, then an employer will be held directly liable for an employee’s sexual harassment. Once an employer has knowledge of the sexual harassment, it must take prompt and adequate actions reasonably calculated to prevent further harassment.

In Rosh, the court found that the employee had sufficiently plead sexual harassment as the grabbing of a female body parts and sexually inappropriate comments demonstrate that the harassment was because she was female; and the conduct was severe, and does not constitute simple teasing, as any reasonable person would find the actions hostile and abusive. Further, the respondeat superior (employer liability) standard was met because the employee informed the co-owners of the ongoing sexual harassment on at least four separate occasions and other there than speaking with the coworkers, the employer did not take any additional steps to remedy the situation; and instead stopped speaking to the employee and told her to fix the situation on her own.

A constructive discharge occurs when an employee resigns because of unendurable working conditions. An employee must show that the employer’s actions were serious enough to change the employee’s compensation, terms, conditions or privileges of employment and make continuing employment with the employer so unpleasant or intolerable that a reasonable person would resign. An employee does not have to show that the employer specifically intended to force the employee to quit, only that the employer knowingly permitted the unpleasant or intolerable discrimination. In Rosh, the court found that the employee demonstrated that her work environment was sufficiently unpleasant and intolerable so that a reasonable person would resign as she was repeatedly harassed and grabbed, and that she was afraid while at work; and the employer did nothing to solve the problem.

Both Title VII (the federal law) and the Pennsylvania Human Relations Act (PHRA) prevent employers from retaliating against employees for reporting instances of sexual harassment. To state a retaliation claim, an employee must establish that: (1) the employee engaged in protected activity; (2) the employer took an adverse employment action against the employee; and (3) there was a causal connection between the employee’s participation in the protected activity and the adverse employment action. An employee must prove causation either through (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link. Temporal proximity exists if an employee alleges a retaliatory action that occurred within a short time after the employee’s last protected activity.

In Rosh, the court found that the employee reasonably believed that her employer was required to take steps to prevent the sexual harassment and the hostile work environment, the employee reported the conduct at issue and she also stated that she would report the sexual harassment to the Pennsylvania Human Relations Commission (PHRC) if the sexual harassment did not stop. The court held that the employee had a reasonable basis to believe that the employer was violating its duties under the law. Further, the court found that after reporting the ongoing sexual harassment, management stopped speaking to the employee and reduced the employee’s scheduled work hours; actions that would dissuade any reasonable worker from reporting a charge of sexual harassment. As the retaliatory events occurred within five weeks from the time that the employee wrote a letter to management stating that if the employer did not take action in response to the sexual harassment the employee would report the employer to the PHRC; and after she complained again about the ongoing sexual harassment, the court found the temporal proximity requirement was satisfied.

Abramson of Employment Law represents Pennsylvania employees 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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$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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Employee Terminated After Requesting Extended Leave Has Retaliation, Pregnancy, Sex & Disability Discrimination Claims

Employees who experience complications during pregnancy that require leave from work prior to the birth of a child may confront a situation where the employee has exhausted her right to Family and Medical Leave (FMLA), which is limited to 12 weeks furring any rolling 52-week period before the employee is medically cleared to return to work following the birth of a child. Depending on the facts, there may still be protection for employees who are terminated prior to their return to work under the Pregnancy Discrimination Act which is part of Title VII and the Pennsylvania Human Relations Act which forbid sex discrimination, and the Americans with Disabilities Act (ADA), as these laws may protect an employee’s right to be granted extended leave from work.

In Oliver v. Scranton Materials, Inc., M. D. Pa. no. 14-cv-00549 (June 14, 2016. Mariani, J.), the Court denied the employer’s motion for summary judgment and allowed the case to proceed to trial in a situation where the employee was notified following a period of maternity/disability leave that she would be permanently laid off. The employee alleged that she was discriminated on the basis of gender, pregnancy, and disability and that she suffered retaliation at the workplace. In Oliver, the employee claimed that she was subjected to a hostile and discriminatory work environment on the basis of sex and pregnancy, the employer retaliated against her by cutting her out of meetings, complaining of her need for pregnancy related leave, and asking her to accept a salary reduction due to her pregnancy and need for leave; retaliated against her based on her disability (complications with her pregnancy); and failed to accommodate her need for disability leave arising from the complications of pregnancy; and refused to allow her to return to work.

In Oliver, the employee worked in a sales capacity for the employer, a company that produced and sold decorative landscape stone and building stone for wholesale delivery. The employee became pregnant with triplets and experienced complications that required her to begin working half-days. Shortly thereafter, the employee began having problems with a part owner of the company who was her supervisor, who at one point said, “you’re not going to be able to work with those three f-ing babies at home.” The employee continued to receive her full salary for working half days until she went out on maternity disability leave. Six days after the employee had the triplets, her FMLA expired as she had used FMLA leave prior to the birth of her children as a consequence of her ability to work only half-days. The employee intended to return to work 8 weeks after the birth of her children but then requested an additional four weeks leave due to complications related to her pregnancy and associated surgery. Two days after her request, the employee was advised that her employment would be terminated. According to the employer, the employee was terminated in anticipation of the finalization of the sale of its business as well as the overall lack of business during the winter months, however, the employee disputed that there was a sale of the business and claimed the evidence showed that the business continued and did not cease operations.

Title VII provides that it shall be an unlawful employment practice for an employer… 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… sex which includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. To establish a prima facie case of pregnancy discrimination, an employee must establish that: (1) the employer knew of her pregnancy; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) there is a causal nexus between her pregnancy and the adverse employment action. Once the employee presents sufficient evidence to establish a prima facie case, the burden shifts to the employer to articulate some “legitimate, nondiscriminatory reason” for the adverse employment action. Then the burden shifts back to the employee to set forth facts tending to show that the employers proffered legitimate non-discriminatory reason was merely a pretext for discrimination by pointing to some evidence from which a fact-finder could reasonably (1) disbelieve the employer’s articulated reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

In Oliver, the court found that the employee established a prima facie case because the supervisor made repeated comments to her concerning her pregnancy, prior to her pregnancy after the need to reduce her workload to half days and that the employer’s negative statements constitute sufficient evidence of discriminatory animus sufficient to established prima facie case of pregnancy discrimination. The court also found that the employer offered a legitimate nondiscriminatory reason, the sale of the business, however, the Court found that there was sufficient evidence of pretext by showing that according to the Pennsylvania Secretary of State’s Website, the employer did not in fact cease operations through a sale of the company’s business, rather, the employer merely changed its name and it continued to operate at the same location with the same telephone and fax numbers and website; and that there were jobs that the employee could have performed. The court also held that the conduct at issue could be found to be sufficiently severe and pervasive to constitute a hostile work environment relying on statements regarding the employee’s inability to work with three small babies at home and by looking at the totality of the circumstances.

Under the ADA, an employer may not discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. To state a prima facie claim of disability discrimination under the ADA, a plaintiff must establish that she: (1) has a disability, (2) is a qualified individual, and (3) has suffered an adverse employment action because of that disability. The ADA also provides for a retaliation action as an employer cannot discriminate against any individual because such individual has opposed any act or practice made unlawful by the ADA and it shall be unlawful to coerce, intimidate, threaten, or interfere with an individual in the exercise or enjoyment… of any right granted or protected” by the ADA. To establish a prima facie case of ADA retaliation… a plaintiff must show that: (1) she undertook some protected activity, (2) that she suffered an adverse employment action, and (3) that there exists a causal connection between the two.

In Oliver, the Court found that, drawing all reasonable inferences in the light most favorable to the employee, a jury could conclude that the employee was disabled within the meaning of the ADA due to complications related to her pregnancy and that there was sufficient evidence from which a rationale factfinder could conclude that there was a causal connection between Plaintiff’s disability and her termination.

For more information on pregnancy discrimination, the Americans with Disabilities Act, the Pennsylvania Human Relations Act, Disability Discrimination, and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126517.html, http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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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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FMLA and ADA: Employee Who Takes FMLA Leave, Does Not Return to Work and Retires Has Viable Claims under the FMLA and ADA

In some circumstances when an employer makes work conditions so intolerable, ultimately causing the employee to no longer work for the employer and retire, an employee may still have viable legal claims. In Pallatto v. Westmorland County Children’s Bureau, 2014 U.S. Dist. LEXIS 27008 (W. D. Pa. March 3, 2014), the Plaintiff employee was employed as a case worker for 13 years. The employee was disciplined on a number of occasions for use of sick leave when she informed her supervisors that she was suffering from migraines and sleep problems. Thereafter, the employee applied for leave under the Family Medical Leave Act (“FMLA”) and again informed her supervisors of her headaches and difficulty sleeping and the effect that each had on her ability to perform her job. Ultimately, the employee was diagnosed with lupus; she informed her immediate supervisor and provided a doctor’s note to the department administrator. Thereafter, the employee requested help from fellow caseworkers in completing her work and conducting visits, a common practice within the office. The employee’s managers questioned the legitimacy of the employee’s illness and made comments such as she was not really sick and she should find a job that she was able to perform. The employee was also repeatedly harassed about her use of sick time despite providing doctor’s notes. The employee was advised she would have to work later than the 4:00 p.m. time she previously ended work, even though the employee told supervisors that working past 4:00 p.m. prevented her from taking her medication. Eventually, the employee filed for indefinite leave under the FMLA; did not return to work and she eventually retired from her employment based on a disability.

In Pallatto, the employee filed claims against her former employer under the FMLA, and for disability discrimination under the ADA and the PHRA. The Court found that the employee set forth a prima facie claim for FMLA retaliation by demonstrating she was protected under the FMLA and she suffered a materially adverse employment action causally related to the exercise of FMLA rights because a reasonable jury could find that the numerous employment actions levied against her after she applied for FMLA leave were sufficient to create an overall scenario that would dissuade a reasonable worker from exercising FMLA rights, This evidence included the schedule alteration requiring the employee to meet with clients at times when she was unavailable; an expectation that she keep her case files updated by the day, while other caseworkers were given a month; prohibiting co-worker assistance in completing work even though this was a common practice within the workplace; and her immediate supervisors harassing her about missing work and telling her to quit and find a job she could perform. While the employer offered a legitimate nondiscriminatory reason for its action in that plaintiff was missing visits, making unannounced home visits when no one was present at the client’s home and falling behind with her dictation, the court found that the employee showed that these reasons could be pretextual because disciplinary and remedial measures aimed at the employee were not applied to others within the office. As such, the court concluded that the evidence sufficiently demonstrates weaknesses and inconsistencies in the employer’s proffered reasons for its actions.

The Court also found that the Plaintiff employee adduced sufficient evidence to create a genuine issue of material fact with respect to her claim for disability discrimination under the ADA and PHRA because a reasonable jury could find that the employee established an impairment through her FMLA application and her diagnosis of lupus which substantially affected major life activities such as sleeping and concentrating, as her condition affected her sleep and left her fatigued and unable to work. The court also found that the employee’s proposed accommodations, that fellow coworkers be allowed to help her complete her work and be allowed to see children in the morning so that she would not have to work past 4:00 p.m., were reasonable. The court also found that under the ADA, adverse employment decisions include the refusal to make reasonable accommodations for a plaintiff’s disabilities and there was sufficient evidence to support the contention that the employee asked for an accommodation and the employer did not make a good faith effort to assist her. Thus, the court found that because a reasonable jury could find that plaintiff was disabled and a qualified person under the ADA who requested and was denied a reasonable accommodation; and the employer had not identified legitimate reasons as to why plaintiff’s requested accommodations had to be rejected, the employer’s motion for summary judgment with respect to plaintiff’s ADA and PHRA discrimination claims must be denied.

In Pallatto, the court also found that the plaintiff employee produced sufficient evidence to move forward on her claim for hostile work environments because her job was made more difficult and frustrating through the actions of her supervisors, she was required to work a revised schedule that was known to be very difficult for her given her impairment and she also was subject to constant harassment about her illness.

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

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Sexual Harassment, Sex Discrimination and Retaliation: Police Department May be Responsible for the Severe or Pervasive Sexual Harassment and Retaliation by a Sergeant

In Gross v. Akill, 2013 U.S. Dist. LEXIS 155449 (E. D. Pa. October 30, 2013)(Slomsky, J.), a female police officer filed a complaint alleging sexual harassment, sex discrimination and retaliation against the Philadelphia Police Department and Police Sergeant Akill, alleging she was subjected to inappropriate sexual comments, including being asked out on dates, the Sergeant implying he wanted to have a romantic/sexual relationship with her, repeated references to Plaintiff as “my baby” and “my boo” and comments like, “don’t fight it,” “it’s going to happen,” “we are both adults and whatever happens stays between us,” and “being faithful is played out.”

Plaintiff complained to the Fraternal Order of Police and a Captain about the sexual advances, harassing and inappropriate comments, and that she felt she was being treated differently because of her sex and because she rejected the Sergeant’s advances. Thereafter, for 5 more months the Sergeant continued to make inappropriate comments and Plaintiff repeatedly told him to stop. On another occasion Plaintiff notified another Sergeant she would be late to work one day which was approved but when Plaintiff came in late, Sergeant Akill listed her as absent without leave and threatened to issue a counseling memo. Plaintiff then filed a charge with the EEOC and within 6 months while Plaintiff was not at work because she was on injured, a formal disciplinary action was instituted against Plaintiff for “Conduct Unbecoming.” as a result of Plaintiff’s alleged involvement in disputes with a neighbor.

In denying Defendants’ Motion to Dismiss the Court found that although, when considered individually none of the events alleged by Plaintiff could be considered “severe” or “pervasive,” when considered in their totality, the “overall scenario” could be found to create a hostile work environment. Accordingly, the conduct over the course of a one year period was found to be severe or pervasive enough to create a hostile work environment. The Court also found that Sergeant Akill was not merely a co-worker who did not have the authority to take a tangible employment action and applied the recent Supreme Court, Vance v. Ball State University, 33 S. Ct. 2434 (S.Ct. June 24, 2013), to find that the Police Department could be responsible for the conduct of Sergeant Akill since he had authority over the terms and conditions of her employment, overtime pay, tour of duty, hours of employment, and discipline. As such, the Court found enough facts to make it plausible that Defendant Akill had the authority to effect an undesirable reassignment of Plaintiff, and therefore was her supervisor.
The Court also found that Plaintiff demonstrated that her compensation, terms, conditions, or privileges of employment were impacted, raising an inference of an adverse employment action which could support a sex discrimination claim. In addition, the Court also found that Plaintiff had a plausible claim for relief for retaliation because she engaged in protected activity on two occasions when she opposed Sergeant Akill’s behavior by complaining about it to the FOP and a Captain and thereafter filing a EEOC Charge, and then Defendant Akill continued to make inappropriate comments, incorrectly labeled Plaintiff as AWOL, threatened to issue a counseling memo; and Plaintiff received formal disciplinary action on March 5, 2013 for “Conduct Unbecoming.”

For more information on sexual harassment and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2130161.html.

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