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Kauffman v. Petersen Health Care VII, LLC, U.S. Court of Appeals Seventh Circuit Docket: 13-3661, October 2014

Disability Discrimination-Reasonable Accommodation – In 1981, the plaintiff began working as one of two hairdresser-manicurists at a nursing home. Mondays and Tuesdays the plaintiff would transport residents in their wheelchairs from their rooms to the nursing home’s beauty shop, do their hair, then return them to their rooms. Other days she mainly did the hair of ambulatory residents and of residents confined to their rooms. She had unrelated duties, such as helping in the laundry and carrying trays. In 2010 the plaintiff had a hysterectomy. Her doctor gave her permission to return to work eight weeks later, with the notation that she could not push over 20 pounds, raised to 50 pounds five months later. The doctor advised “you can’t be pushing and lifting” people in wheelchairs, because, over time, that would tear loose the mesh lining “and you’ll be back in for bladder repair.” The plaintiff notified her supervisor, who stated that he would not accommodate her disability and they did not allow permanent restrictions. She quit. Until she was replaced, the remaining hairdresser received assistance from other staff in transporting residents. There was no indication that this diversion of staff from their normal duties was costly or impaired the care provided the residents. The district court rejected plaintiff’s suit under the Americans with Disabilities Act, 42 U.S.C. 12112(a). The Seventh Circuit reversed, stating that the employer would have a difficult time establishing that a reasonable accommodation would be a hardship since the employer had allowed other employees to assist the plaintiff in doing portions of her duties and had not shown that granting this accommodation was an undue hardship.

Thompson v. City of Waco, 2014 U.S. App. LEXIS 17089 (5th Cir. 2014)
Discrimination-Ultimate Employment Decision-Reduction of Job Responsibilities- Plaintiff was a detective in the Waco police department. The Plaintiff and other detectives had been disciplined by the department for misconduct. This discipline had been reversed by an appeal; however, Plaintiff alleged that before the city’s action he served as a detective, but after the action he no longer functioned as a detective and worked mainly as an assistant to another detective, while other former detectives returned to their roles. The Fifth Circuit held that such a material loss of responsibilities could be the equivalent of a demotion and could constitute an ultimate employment decision sufficient for a discrimination cause of action.

EEOC v. Simbaki, Ltd., 2014 U.S. App. LEXIS 17881 (5th Cir. 2014)

EEOC Charge Naming Requirements- When a complainant to the EEOC initiates a charge of discrimination complaint the employer is required to be named. The general rule is that a party not named in an EEOC charge may not later be sued under Title VII. This is called the “named party rule” and limits the effect of the charge in allowing a suit to be filed to only the parties actually named in the charge. However, there is an exception that allows a charging party, who is not represented by an attorney, some “leeway” in using the exceptions to the named party rule. There is a four-part test to determine whether there was sufficient identity-of-interest between the named and the unnamed party so that the unnamed party could be sued in court despite not being named in the charge: (1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party, that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; (3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; and (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. The 5th Circuit decided that a represented party should be granted the exceptions just as the unrepresented parties are treated. The Court stated that this result is more consistent with their well recognized practice of liberally construing Title VII’s requirements in light of the statute’s remedial purpose.

Texas Department of Human Services v. Okoli, ___ S.W.3d ___, 2014 WL 4116807 (Tex. 2014)

Whistleblower Act- Internal Whistleblowers Conduit Theory Is Not Recognized-

The Texas Whistleblower Act is supposed to protect state and local government employees who report violations of the law to an “appropriate law enforcement authority.” Because the Act requires a report to a “law enforcement authority,” internal whistleblowing is not protected unless the employer is a law enforcement authority. However, many local and state local governments ask their employees to report the wrongdoing internally. Some discourage employees from reporting wrongdoing to outside authorities and assure their employees that internal reports will be forwarded to appropriate outside authorities, and promise that internal whistleblowers will be protected from retaliation. In this case, however, a divided Supreme Court held that internal whistleblowers, who follow their employers’ directions and report through internal channels, are not protected by the Whistleblower Act. To gain the protection of the Act, a whistleblower must report directly to outside law enforcement authorities and not depend on internal reports of the wrongdoing. The majority rejected the “conduit” theory, according to which a report to an internal authority is a report to an appropriate law enforcement authority, if the employer has indicated that the internal authority will forward the report. Only the employee’s own direct communication with the external authority is protected. Three Justices dissented. With this case, The Texas Supreme Court has made it so difficult for an ordinary public employee to know to whom and how to report wrongdoing, that the employee either needs to be an attorney, or consult an attorney, so that the employee may decide how to properly report the wrongdoing in order to be protected from retaliation. (Sometimes, common sense and the law are like parallel tracks that can never meet.)

Union Pacific Railroad Co. v. Nami, 2014 WL 4049819 (Texas App.—Corpus Christi 2014)

FELA Injury- Mosquito Bite Resulting in West Nile Fever

In this Federal Employers’ Liability Act (FELA) workplace safety case concerning West Nile virus-carrying mosquitoes, appellant Union Pacific Railroad Company challenged the jury verdict in favor of appellee Nami. See 45 U.S.C. § 51 (2006). By two issues, Union Pacific argued that: (1) the trial court erred in denying its motion for judgment notwithstanding the verdict because under the doctrine of ferae naturae and the common law, Union Pacific owed no legal duty to Nami to protect him from mosquitoes; and (2) the evidence was legally insufficient to prove that any breach by Union Pacific caused Nami to contract West Nile virus. The Court of Appeals examined the record and held that the ferae naturae doctrine that states that an employer owes no duty to warn an employee of commonly-known or common-sense hazards was not applicable. The Court ruled that mosquitoes carrying West Nile fever was not so well known as to invoke the doctrine and, therefore, the employer had a duty to warn of this hazard, which they did not do. Consequently, the Court held that the trial court did not err in refusing to overturn the jury verdict.