October 2010 issue of HR News magazine - IPMA

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labor relatioNs By Tina Ott Chiappetta IPMA-HR Senior Director of Government Affairs and Communications Sixth Circuit Rules Employer Failed to Request Certification for FMLA Leave a receptionist who missed several days of work in a row is entitled to proceed with her Family and medical leave act (Fmla) claim because the employer failed to properly request medical certification, ruled the united states court of appeals for the sixth circuit in the case Deborah Michele Branham v. Gannett Satellite Information Network, Inc., d/b/a The Dickson Herald Group, docket No. 09- 6149, september 2, 2010. Deborah Branham was fired from her receptionist position at the The Dickson Herald for excessive absenteeism. This is her second employment stint with the newspaper. She first worked there from November 21, 2003 to January 15, 2004, when she was also fired for absenteeism. She was rehired July 26, 2005. On November 7 and 8, 2006 Branham called the office to say that she would not be able to report to work because her son was home sick. On November 9 and 10, Branham called to say that she was sick and would not be into work. On Monday, November 13, Branham’s husband called to say that he was taking her to the doctor and she would not be in. She saw Dr. Pamela Singer at the Dickson Family Medical Group. She told the doctor she was suffering from migraines, depression, insomnia and a stomach virus. After test results came back normal, Dr. Singer told her Branham that she could return to work the next day. Branham testified that she called her immediate supervisor and told her that she still wasn’t feeling well although the doctor released her to come to work. Branham said that during the same conversation she would need to attend other doctor appointments in November and December. Her supervisor, Ms. Buhler told her to come into the office to sign a form for short term disability leave, Ms. Buhler also told her she could do some | 24 | OCTOBER 2010 work from home to help close-out the month. Branham did not report to work the remainder of the week but she did perform some work from home. On Thursday Buhler faxed a medical certification form to Dr. Singer and on Friday, she received a completed form indicating that Branham did not need medical leave. On Monday, November 20, Branham did not report to work and did not call to explain her absence. At this time, Buhler began the process of termination by consulting with her superiors and human resources. Buhler was advised by human resources to call Branham and tell her that her job would be in jeopardy unless she provided additional medical documents confirming the need for medical leave. Branham said that her regular doctor is the one who should be consulted and although Buhler tried to reach the regular doctor, going so far as to send an employee over with the forms, the regular doctor, Dr. Peters, refused to sign the forms because he did not see Branham on November 13. Branham did not report to work following the Thanksgiving holiday and termination proceedings began. On November 28, Branham was called at home and told she had been fired. On that same day, at 6 p.m., Branham had the nurse practitioner fax a completed certification form to the newspaper saying that Branham’s illness began on May 6, 2006 and was expected to prevent her from returning to work until January 1, 2007. Branham sued arguing that The Dickson Herald violated the FMLA by interfering with her use of leave and by terminating her employment. The lower court dismissed Branham’s suit, finding that the employer was justified in relying on the “negative” certification provided by Dr. Singer after the November 13 office visit. The lower court said that an employer does not have to wait the 15 days provided for the return of medical certification if it receives a negative certification in the meantime. The Sixth Circuit reversed on other grounds. The court found that the employer never properly requested a medical certification as required by the law. The court found that Branham satisfied her notification requirement by telling Buhler on November 13 that she wasn’t feeling well and would need additional time off in November and December. According to the court, the newspaper never triggered the additional duty to provide a medical certification supporting her claim. The information about the requirement to submit a form or the consequences for failing to do so were not provided in writing within the prior six months nor did the requirement appear in the employee handbook when she first joined the newspaper in 2003. Other questions, such as whether or not Branham suffered from a serious health condition, are for a jury to decide, said the court. Demoted School Administrator Allowed to Proceed with Age Discrimination Case the united states court of appeals for the tenth circuit ruled that a school administrator demoted from an executive director position to principal could proceed with her age discrimination suit. she provided sufficient evidence that the school board’s reasons for the demotion were untrue. she did not need to provide additional evidence of age discrimination in order to move forward, said the court. Judy F. Jones v. Oklahoma City Public Schools 89, docket No. 09-6108, august 24, 2010. Judy F. Jones worked for the Oklahoma City Public Schools (OKC) as a teacher beginning in 1969 then as a principal for 15 years. In 2002 she was promoted to executive director of curriculum and instruction where she stayed until she was demoted to principal in 2007. The school superintendent, John Porter and the OKC argue that the decision was economic; that the move allowed the five executive director positions could be reduced to four, with the duties absorbed by the other four. The funds would then be available to create a new deputy superintendent position. HR NEWS MAGAZINE
One month after Jones was reassigned; Porter created a new executive director position of teaching and learning. The job duties were very similar to those performed by Jones and that position was filed by an individual who was 47 years old. Jones was 59 at the time. Jones sued under the Age Discrimination in Employment Act (ADEA). The Tenth Circuit found sufficient evidence to permit Jones to proceed. She showed that she was in a protected class, she suffered an adverse employment action, she was qualified for the position, and she was treated less favorably than those not in the class. The court dismissed the argument by OKC that Jones did not suffer an adverse employment action. OKC argues that Jones’s salary remained the same for one year after the transfer but the court pointed out that after the one year, her salary was reduced by $17,000, her pension benefits were also affected and her vacation time was affected immediately. The Tenth Circuit also rejected the lower court’s assertion that Jones needed to show “pretext-plus” in order to proceed. “Pretext plus” means that Jones needed to show not only that OKC’s proffered reason—to save money—was untrue, but also that age was the reason for the decision. The Tenth Circuit said it was sufficient for Jones to show that the economic reason was untrue—OKC essentially filled the identical position one month after reassigning her to a principal position. Jones did not also need to show evidence of age discrimination. The Tenth Circuit did say that in certain narrow circumstances it may be that no rational fact finder could conclude that discrimination was the reason for the termination. For example, said the court, if the record showed that there was some other non-discriminatory reason for the decision. Coworker Harassment Created Hostile Environment the united states court of appeals for the Ninth circuit ruled that a coworker’s repeated harassment of a male coworker can be sufficient to create a hostile work environment in violation of title Vii. the employer’s failure to take any action lead to its liability. Equal Employment Opportunity Commission (EEOC) v. Prospect Airport Services, Inc., docket No. 07-17221, september 3, 2010. Rudolpho Lamas and Sylvia Munoz worked for Prospect Airport Services, Inc. in Las Vegas, helping passengers who needed wheelchair assistance. Lamas had a successful career until the harassment, which he argues was the cause of his termination. In September 2001, prior to being hired by Prospect, Lamas’ wife died and this was common knowledge among his coworkers. In the fall of 2002, Munoz, who was married at the time, began propositioning Lamas and sending him love notes. She asked coworkers to tell Lamas that she was interested in him. From the fall of 2002 until his termination in June 2003, Munoz continued to harass Lamas. Lamas repeatedly told Munoz he was not interested, that he was grieving over his wife. His coworkers were unsympathetic as were his supervisors. He repeatedly complained to his direct supervisor and when that failed to achieve any results he complained to other managers, including the assistant general manager who suggested that Lamas should be flattered. In support of his hostile environment claim, Lamas testified that Munoz’s actions and those of his coworkers caused him emotional distress, that he sought psychological counseling, and that the quality of his work deteriorate as a direct result of the harassment and it led to his termination. The lower court dismissed his claim but the Ninth Circuit reversed, finding that Lamas had met all the criteria of a prima facie case: 1) he was subjected to verbal or physical conduct of a sexual nature; 2) it was unwelcome (Lamas testified that he told Munoz numerous times to stop and he complained repeatedly to management); and 3) the conduct was sufficiently severe or pervasive to alter the working conditions and create an abusive environment. On the last point, the court said that the combination of Munoz’s unwelcome and repeated advances combined with labor relatioNs Prospect’s complete failure to address the situation were sufficient to create a question for a jury as to whether or not the environment was hostile. Town Official Did Not Engage in Protected Free Speech; Breach of Fiduciary Duty Issue for Fact-Finder the united states court of appeals for the seventh circuit affirmed in part and reversed in part a case involving a top official for the town of cicero, ill. the court found that the official did not engage in protected free speech and allowed the issue of breach of fiduciary duty to proceed to trial. Clarence Gross v. Town of Cicero, Illinois, et al., docket No. 06-4042, august 27, 2010. Clarence Gross was employed by the Town of Cicero in a variety of top-level positions from the time he retired as a police officer in 1997 until he was fired in October 2002. The position at issue in this case is his role as hearing officer and chairman of the Board of Fire and Police Commissioners (BOFPC). He was appointed to this position by town president, Betty Loren-Maltese. Gross was fired prior to the end of this three year term on the BOFPC. He alleges it was because he complained several times to Loren-Maltese about the alleged sexual harassment of his daughter, a town of Cicero police officer, by Police Commander, Jerold Rodish. Gross alleges that his daughter and other female officers were harassed by Rodish, and that on six separate occasions he tried to talk to Loren-Maltese about it but she brushed him off, saying she knew what he was there to talk about and they’d get to it later and to call the town’s attorney. Gross admits in that he never specifically mentioned Rodish, the other female officers or the sexual harassment claim explicitly. When Gross did not get a response from Loren-Maltese he CONTINUED ON PAGE 26 WWW.IPMA-HR.ORG OCTOBER 2010 | 25 |
Page 1 and 2: THE MAGAZINE NOF THE INTERNATIONAL
Page 3 and 4: In this month’s issue of HR News
Page 5 and 6: FEATURES 6 Ready, Set, Engage: The
Page 7 and 8: 1617 Duke Street Alexandria, VA 223
Page 9 and 10: ■ employee engagement ■ employe
Page 17 and 18: Standout Public Servants Receive Co
Page 19 and 20: By Howard Goldsmith and Lawrence Si
Page 21 and 22: D) Anoka County Count (MN) Arapahoe
Page 23 and 24: Partnership for Public Service Rele
Page 25: your emergency response time exceed
Page 29 and 30: Dr. Reginald F. Wells Chosen to Rec
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Page 33 and 34: Certification Corner Congratulation
Page 35 and 36: TESTING ORDER FORM A. ORDER We have
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October 2010 issue of HR News magazine - IPMA

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