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Advocacy & Compliance News

Legal Watch - March 9, 2016
March 9, 2016

By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP


Court of Appeals Reopens Six-Year-Old Race Discrimination Case, Holding Jury Must Decide Whether Nondiscriminatory Reasons for Discharge Were a Pretext

The U.S. Court of Appeals for the D.C. Circuit recently reversed a trial judge's summary judgment ruling against a plaintiff in a six-year-old race discrimination case, holding that Georgetown University Hospital must go to a jury trial over whether its reasons for the discharge of a black intensive care unit nurse for allegedly committing patient errors at work were a pretext for race discrimination (Wheeler v. Georgetown University Hospital (2016 BL 40525, DC Cir. No. 14-7108, 2/12/16)).

The plaintiff was suspended and then terminated after four other nurses complained to her supervisor that she had committed a number of mistakes the previous day in the intensive care unit. They alleged she failed to check in on patients who needed assistance to move and had administered intravenous drugs erroneously. The plaintiff countered that she had been targeted for reporting negligent acts by her coworkers. She also alleged that white nurses committing the same errors were not terminated. The hospital argued that it had a nondiscriminatory reason for discharge, i.e. multiple patient errors during one shift, and argued that none of the white nurses, who the plaintiff alleged committed similar errors and were not fired, had committed more than one error during the shift in question. The federal trial judge agreed with the hospital and dismissed the plaintiff's complaint of race discrimination, holding that comparing the white nurses' errors to the plaintiff's was like comparing an "acorn to an oak tree."

The D.C. Circuit Court of Appeals reversed that decision, concluding that the white nurses that the plaintiff compared herself to were similarly situated and that a comparison of the situations created the possibility that a jury might find that the reasons proffered by the hospital for the plaintiff's discharge might be a pretext for a more biased motivation by hospital administrators.


Federal Court Holds Termination Eight Days After Request for FMLA Leave Not Enough By Itself to Sustain Complaint of Retaliatory Discharge

A manager who presented no evidence of retaliatory discharge other than the fact that he was terminated eight days after his request for FMLA leave was unsuccessful in maintaining an action for FMLA discrimination. The court concluded that “temporal proximity alone” is not enough to rebut an employer’s asserted non-retaliatory reason for discharge and dismissed the case on summary judgment (Reilly v. Cox Enterprises Inc. (2016 BL 61229, D. RI.  No. 13-785, 3/1/16)).

The court held that while temporal proximity between an employee’s protected activity and an adverse employment action can sustain a prima facie case of retaliatory or discriminatory discharge, once an employer responds with a nondiscriminatory reason for the discharge, the plaintiff is obligated to produce some additional evidence of discrimination of retaliatory intent to allow the case to move forward.

Here, the employer defended the discharge by stating that the plaintiff was fired because she publicly reprimanded a subordinate in a “loud, harsh and condescending manner” and asserted that the request for FMLA leave had nothing to do with the termination. 


Coworkers' Observations of "Suicidal Tendencies and Failure to Concentrate" Are Enough for Employer to Require a Psychological Evaluation - Court Holds No ADA ViolationOccurred

A U.S. circuit court of appeals recently sided with a medical center in finding no ADA violation by requiring an employee to undergo a psychological examination in response to coworker observations that she exhibited suicidal tendencies and had difficulty concentrating on the job (Barnum v. Ohio University Medical Center (2016 BL 47553, 6th Cir. No. 15-3450, unpublished, 2/19/16)).

The plaintiff sued her employer, alleging an ADA violation and claiming that the medical center psychological exam requirement was not job-related or consistent with business necessity. She alleged that the hospital "regarded her as disabled and discriminated against her because of this prejudice" in requiring a medical exam.

The plaintiff was going through a divorce and according to coworkers was also going through "other personal stress." The plaintiff's coworkers raised concerns over her ability to concentrate and her comments which "suggested suicidal thoughts." Her coworkers reported that the plaintiff called herself "worthless," and on one occasion said, "Maybe I should just put a gun to my head, maybe I should just not be here."

The court concluded such evidence would cause a reasonable person to inquire about the employee's continued ability to perform her job. Therefore, the court concluded that the required examinations were job-related and consistent with business necessity. 


EEOC Reports Increase in Workplace Discrimination Charges in FY2015, Retaliation Remained Top Charge

The Equal Employment Opportunity Commission (EEOC) reported an overall increase in workplace discrimination charges filed with the agency in fiscal year 2015 (89,385 charges), and retaliation remained the top charge, making up 45 percent of all claims filed. Race discrimination charges were the second most commonly filed charges, and disability claims were third. Sex and age discrimination charges also increased.

Workplace harassment claims filed on the basis of sex, sexual orientation, gender identity, race, age, disability and national origin also accounted for a huge category of charges, with over 31 percent of all charges containing an element of workplace harassment based on one of these categories. The EEOC reported that it collected more than $356 million in administrative enforcement remedies in FY15 - a 20 percent increase over FY14.

The EEOC also reported that it formed a task force last fiscal year to analyze various forms of workplace harassment and stated that preventing workplace harassment through systemic enforcement and targeted outreach is a major priority for the agency moving forward.