Legal Watch - May 6, 2015
May 6, 2015
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
A collective bargaining unit of 2,200 graduate assistants (GAs) at the University of Connecticut, represented by the United Auto Workers Local 6950, came to agreement with the university on a first-time, three-year labor contract. The union began representing the GAs last year. The university states that approximately one-third of its 6,900 graduate students are GAs.
The contract was approved by a vote of 1,103 to 10. The university’s president recommended earlier this month that the trustees approve the new contract. As the university is a state institution, under the Connecticut statutes the contract must be submitted to the Connecticut general assembly for approval. The legislature can either vote it up or down or let it take effect by taking no action by the end of the legislative session (June 3). If approved by the legislature, the contract will run from July 1, 2015 to June 30, 2018.
According to the union summary of the new agreement, it provides a 9.3 percent increase in benefits. Specifically, it provides an initial across-the-board 3 percent increase in all rates paid to the GAs. The union also claims to have negotiated contractually guaranteed promotional increases of 5.2 percent after achieving master’s status and another 11.2 percent increase after achieving Ph.D. candidacy. In addition, in the fall of 2015, the current infrastructure fee of $468 per year will be waived and the current tuition waivers will be maintained. The university will also provide each GA with a credit of $100 toward the general university fee per semester, and beginning in the fall of 2017, the credit will be increased to $200 a semester. Finally, starting in the 2015-16 academic year, GAs with children will be able to apply for childcare reimbursement managed by the union. Over the three-year contract, the childcare fund will grow to $80,000 from $40,000 a year.
A federal district court judge recently dismissed an ADA claim filed by an employee who claimed he was fired because of his sleep disorder. The judge ruled that the evidence supports the conclusion that the plaintiff’s sleep disorder was caused by his own behavior and did not result from a physical or mental impairment, therefore it does not constitute a disability protected by the Americans with Disabilities Act (ADA) (Neely v. Benchmark Family Services (2015 BL 113741, S.D. Ohio, No. 3:13-cv-00415, 4/20/15)).
The judge ruled that in order for a sleep disorder to be a disability under the ADA, the plaintiff must show that the condition is a result of a physiological (mental or physical) condition. In this case, the plaintiff’s doctor concluded that the plaintiff’s inability to sleep was not related to a mental condition but rather to his “horrible sleep hygiene.” The doctor concluded that the plaintiff’s poor use of medications and food consumption led to his sleep problems and that he should participate in sleep studies and complete a sleep log. According to the court, the plaintiff did not follow the doctor’s advice.
The plaintiff also alleged that his sleep disorder did not prevent him from performing his job. Finally, the plaintiff alleged that his employer regarded him as disabled because it was aware of his sleep problems and fired him because of it. The employer countered, stating that the plaintiff often was found “sound asleep” on the job and his sleep became a distraction for other employees. After his removal from a supervisory position, he was argumentative with supervisors and grumpy with other employees. He was eventually fired after not successfully completing a last-chance probationary period.
The court ruled that even if the plaintiff had shown a physiological connection to his sleep disorder, his complaint would still be dismissed because he alleged that the disorder did not prevent him from performing his job. Finally, the court rejected his “regarded as” disabled claim, holding that “regarded as” claims do not apply to conditions that are “transitory or minor.”
The sole admissions office receptionist/secretary at a for-profit school in New York, who was fired after repeated work absences and a dismal attendance and punctuality record purportedly to tend to her infant daughter’s breathing problems, has a triable case of associational bias under the ADA and related New York law, as a result of her boss’s repeated, derogatory and “smoking gun” comments about the employee and her daughter (Manon v. 878 Education, LLC (2015 BL 59175, SDNY, No., 1:13-cv-03476, 3/4/15)).
The federal district court judge denied the employer’s motion for summary judgment based on the employee’s poor attendance and punctuality record because she presented evidence that her boss, the director of admissions, stated that he needed someone without children in the position and asking the plaintiff, “So what is it, your job or your daughter?” The judge ruled that the comments are the type of smoking gun evidence that could support an associational bias claim under the ADA and New York law.
According to the court, the plaintiff’s work record showed that out of 132 days during her short work tenure, she was late 27 times, left work early 54 times and was absent 17 days. To her credit, she worked beyond her shift 31 times. The judge concluded that the boss’s comments along with the fact that she was discharged the day after returning to work from being absent to tend to her child is sufficient to warrant a trial over the associational bias issue, notwithstanding the attendance and punctuality record. It will be up to the jury to decide the issue.
In a case with broad implications on employer liability for wrongful discharge, an Ohio jury awarded a nurse more than $2 million in damages, finding that her employer had defamed her in the firing discharge process (Wayt v. Community Health System, Inc. (Ohio Ct of C.P., No. 2012CV03479, verdict 2/6/15)).
The jury deliberated only two hours and returned the verdict in favor of the registered nurse who was fired in 2012 as a result of her union organizing efforts at the 156-bed facility. The plaintiff filed a National Labor Relations Board (NLRB) unfair labor practice charge following her termination and was reinstated by the NLRB as a result. Following her reinstatement by the NLRB, she filed a defamation case against the hospital in state court. The hospital had discharged her for violating procedures for patient care, which she denied. As part of the discharge process, the hospital sent a complaint to the Ohio Board of Nursing seeking to have her nursing license suspended or revoked. She claimed among other things that the hospital’s charges that she falsified patient records tarnished her professional reputation.
The jury ordered the hospital to pay the plaintiff $800,000 in compensatory damages and $750,000 in punitive damages. In addition, the hospital must pay the plaintiff’s attorney fees. The verdict followed an NLRB administrative hearing which found against the hospital and in her favor. The NLRB specifically found that the hospital’s firing was “a pretext to retaliate against her for her union activity” despite a long “spotless” record and further concluded that, “it is hard to imagine a more effective coercive message to the union supporters.” When she was fired by the hospital, she had worked there for 24 years and had received an award in 2008 for nursing excellence.