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So many bloggable employment cases, so little time

December 2nd, 2014  |  Lorene Park

By Lorene D. Park, J.D.

As an Employment Law Daily editor, I see hundreds of court decisions each week, only a limited number of which we can actually cover. When it comes time to blog, usually one or two will leap out at me as particularly interesting and often the story nearly writes itself. Sometimes, though, there are so many eyebrow-raising cases that it is almost impossible to choose. That was the situation today and, rather than forcing a choice, I’m providing a sample of bloggable cases that caught my eye the past two weeks. I’m certain, after viewing these, readers will understand why, much like a kid choosing from a cookie jar, it’s hard to pick only one case.

Pet store allegedly fired employee over need for service dog. A pet store manager, who needed a service dog due to his seizure disorder and who was fired less than four months after hired, presented evidence that the performance-based justification for his termination was not true, given the leeway afforded other new managers. He also testified that when he showed up his first day, managers were surprised and agitated by his service dog, which was viewed as a potential liability. The federal court in California denied summary judgment on his perceived disability discrimination claim under the FEHA (Moore v. Pet Supermarket, Inc., November 20, 2014).

“Cyber harassing” coworker nets restraining order. Affirming a three-year restraining order against a CVS manager, a California appeals court pointed to evidence that he used third parties to harass the plaintiff (a former CVS manager), including on social networking sites. His alleged conduct included posts on her LinkedIn page and posts on his girlfriend’s Instagram page with the employee’s picture and comments like “#blackbitch,” “joblessbitch,” and “#gokillyourself.” He also allegedly disparaged her professional reputation to others (Kwan v. Murcia, November 26, 2014).

Employer denied order requiring politically correct “N-word” at trial. In a case where an African-American employee alleged that he was regularly called “ni**er” by his supervisor, a federal court in Indiana refused to require counsel and witnesses to use the politically correct “N-word” at trial. The court explained that in this racial harassment case, “what words were said and in what manner are squarely at issue,” including their “inflammatory nature” (Davis v. Lakeside Motor Co., Inc., November 20, 2014).

Sexual harasser’s “jokes” put employer on notice. Evidence that an alleged harasser sent his secretary an email detailing additional duties, including sexual attractiveness; that he wrote a letter purporting to be from her and required her to deliver this “mock” sexual harassment complaint to his friend, the HR administrator; and that he followed her into an otherwise private meeting with HR, allegedly to prevent her from speaking about him, was enough to preclude summary judgment on the issue of whether the school district employer knew or should have known about the harassing conduct, a New York appellate court ruled (Tidball v. Schenectady City School District, November 20, 2014).

Obesity, future health risks not ADA “impairment.” Noting the definition of physical “impairment” in EEOC regulations and court rulings, a federal court in Nebraska held that a plaintiff whose job offer was withdrawn due to his obesity did not have an ADA impairment. It explained that his obesity was not the result of a physiological condition and there was no evidence that it affected one or more body systems. His “regarded as” claim also failed, despite the employer’s conclusion that a BMI of 40 indicated future health risks, because “the definition of impairment ‘does not include characteristic predisposition to illness or disease.’” Summary judgment was granted on his ADA and state law claims (Morriss v. BNSF Railway Co., November 20, 2014).

Reporting tissue-tossing surgeon to hospital was not whistleblowing. Disturbed by horseplay in which a surgeon and a surgical tech tossed around a mass of tissue, at one point hitting the anesthetized patient from which it was removed, a new county hospital employee reported to management and to a hospital compliance hotline what she believed to be “malpractice” or “battery.” However, because she did not report the violation to an appropriate law enforcement authority and could not in good faith believe that she had, a Texas appeals court affirmed summary judgment for the hospital on her claim under the Texas Whistleblower Act (Ellis v. Lubbock County Hospital District dba University Medical Center, November 19, 2014).