Tuesday, May 23, 2006

Supreme Court denies cert. in Taylor v. Federal Express

The U.S. Supreme Court yesterday let stand the Fourth Circuit's decision in Taylor v. Federal Express Corp., No. 04-2056 (4th Cir. Nov. 16, 2005) (see previous post), that a former Federal Express courier with a 30 lb. lifting restriction was not disabled under the Americans with Disabilities Act because a jury could not reasonably conclude that he was substantially limited in the major life activity of working. Taylor v. Federal Express Corp., U.S., No. 05-1023, cert. denied 5/22/06 (PDF).

Friday, May 05, 2006

West Virginia Schools on Top of Technology

Finally, some good news about technology in our schools.

This article in the State Journal notes that "West Virginia is the ONLY state to get an 'A' in Education Week's 2006 Technology Counts report."

You can access the report here, and the detailed state reports here.

Inadequate investigation of sexual harassment complaint creates jury question under Title VII

In Howard v. Winter, No. 05-1258 (4th Cir. May 04, 2006) (PDF), the Fourth Circuit reversed summary judgment in favor of the Navy in a Title VII hostile environment sexual harassment suit, finding that a reasonable juror could conclude that the Navy was negligent in responding to a female employee's complaints of sexual harassment.

The Plaintiff, Stephanie Howard, alleges she was sexually harassed by a coworker, McCall, for over a year. She claims the coworker spoke to her in a sexually provocative manner, fondled her breasts, backside, and face, and eventually sexually assaulted her. After the assault incident, she wrote the harasser a letter telling him to stop, and reported to a human resources manager, Pendleton, that the "mother-f----r put his hands on me, and I don’t like it." However, she did not go into detail about the assault incident, and did not tell Pendleton about the letter. Pendleton responded by simply telling Howard to write McCall a letter and keep track of any future harassing behavior, making sure to report any further instances to him or to one of Howard’s supervisors. Eight months later, in November 1996, after the harasser groped her again, she reported the conduct and the Navy removed the harasser to another department, effectively ending the harassment.

The district court dismissed Howard's hostile environment claim on summary judgment, noting that once the Navy was put on notice in November 1996, its response was "about the fastest [the court had] seen an employer do in a long time in these cases." The court further found that action was not taken earlier by the Navy because Howard failed to "give the employer adequate information to trigger the kinds of response [she was] requesting."

On appeal, the Fourth Circuit disagreed that the Navy responded properly:
We agree that summary judgment on this point was improper and conclude that a reasonable trier of fact could find that Howard’s conversation with Pendleton was sufficient to place the Navy on notice of McCall’s behavior, and that given Howard’s statements to Pendleton, there exists a factual issue as to the reasonableness of his response.
* * *

[Pendleton] did not get to the bottom of her allegations. There is nothing in the record suggesting that he asked to see the letter or attempted to learn the specifics of Howard’s allegations. There is nothing to suggest that he spoke with McCall or others about Howard’s problem, nor is there anything to suggest an inquiry, much less an investigation of any kind. In short, Howard alleges that Pendleton’s only response to her statement that McCall put his hands on her and that she did not like the touching was for her to write McCall a letter and notify someone if McCall "harasses [her] again." While a reasonable juror could find that Pendleton’s response to Howard was sufficient given the lack of details in her allegation, we believe a reasonable juror could also conclude otherwise.
The Court reiterated the holding in Ocheltree v. Scollon Prod., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc) that an employer "cannot avoid Title VII liability for coworker harassment by adopting a ‘see no evil, hear no evil’ strategy. Knowledge of harassment can be imputed to an employer if a reasonable person, intent on complying with Title VII, would have known about the harassment."

The Court affirmed the parts of the district court's judgment finding that McCall was not Howard’s supervisor for the purposes of Title VII and that Howard cannot show that the Navy should have known about McCall’s behavior prior to her report to Pendleton. It also found that the Navy’s ultimate response was reasonable and resulted in the cessation of any harassing behavior after November, 1996, thus absolving it of liability after that time.

Wednesday, May 03, 2006

FMLA does not guarantee job restoration after leave

In Yashenko v. Harrah's NC Casino Co., No. 05-1256 (4th Cir., Apr. 27, 2006) (PDF), the Fourth Circuit held, in an issue of first impression, that where an employee would have been discharged even if he had not taken a leave of absence under the FMLA, he is not entitled to be restored to his previous job at the conclusion of the leave.

Edward Yashenko was an employee relations manager whose position was eliminated following a company reorganization at Harrah's North Carolina Casino Company. In 2003, Yashenko was on FMLA leave for eleven weeks. While he was out, Harrah’s informed him that the company was reorganizing in a way that eliminated his position along with another management position. The Human Resources director at Harrah’s invited Yashenko to apply for some new positions that were being created as well as other existing positions. Yashenko decided not to apply for any position because, he explained, he was taking medication, and did not feel up to it, and because his doctors assertedly recommended that he not do so. Upon his return from FMLA leave, Harrah’s discharged him.

Yashenko filed suit alleging violations of the FMLA because Harrah’s did not restore him to his job at the end of his leave. He argued that the plain language of § 2614(a)(1) of the FMLA mandated restoration. That section states that any person who takes FMLA leave "shall be entitled, on return from such leave — (A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." Both parties moved for summary judgment, and the district court granted summary judgment to Harrah’s.

In affirming the district court's grant of summary judgment, the Fourth Circuit held that the FMLA does not provide a covered employee with an absolute right to be restored to his previous job after taking approved leave. "[A]n employer may deny restoration when it can show that it would have discharged the employee in any event regardless of the leave." The court noted that "the Secretary of Labor has promulgated a regulation — 29 C.F.R. § 825.216 (2005) — clearly resolving the question."

The Court left unresolved the question of whether, in a case where the employee alleges interference with his right to restoration, the explicit language in § 825.216(a) validly shifts the ultimate burden of proof to the employer to establish the limitations on its obligation to restore the employee. "[W]e need not resolve that issue here because, regardless of who bears the ultimate burden of proof, Yashenko’s claim cannot succeed." In support of his argument that Harrah’s interfered with his FMLA rights, Yashenko offered only the following: (1) that Yashenko’s job was not in jeopardy when his leave commenced in May 2003; (2) that Yashenko received a grade increase in March 2003 shortly before the leave began; (3) that Yashenko was the only employee who lost his job after his position was eliminated by the reorganization in 2003; (4) that Harrah’s had never required anyone else on a leave of absence to apply or interview for a position; and (5) that even if Yashenko had applied for the newly created Manager position, he would not have gotten the job.

"None of this evidence puts into dispute the company’s contention that Yashenko’s position was eliminated in a legitimate reorganization," the court concluded.