National Litigation Hotline

On appeal, the Third Circuit affirmed, noting that Gannett Co.'s response to the haulers in 1988 caused the statute of limitations to begin to run. Further, the Court held that the statute of limitations was not tolled under a continuing violation theory, because the denial of benefits in 1988 by Gannett Co. was sufficiently clear to initiate the statute of limitations.

Employee Claiming ADEA Violation Has No Case, Says Court

The Eleventh Circuit has held that an employee whose age was a substantial or motivating factor in her termination did not have a claim under the ADEA, as she would have been terminated in any event. Steger v. General Electric Co., 2003 WL 132976 (11^th Cir. Jan. 17).

Plaintiff had worked for the employer for 25 years in its collections department. In 1995, she was terminated during a RIF. Plaintiff brought suit under the EPA and the ADEA. Apparently, the employer delayed plaintiff's termination for a month to allow her to qualify for a special early retirement option. Prior to plaintiff's becoming eligible, she provided a copy of her birth certificate to her employer, which showed she was 5 years older than she had stated on her application for employment, and that she was entitled to normal retirement and a lump sum payment of $17,000. The trial judge barred the employer from presenting evidence that plaintiff lied on her application, but allowed defendant's argument that it would have made the 'same decision' under any circumstances. A jury found in favor of the employer on the EPA claim, but could not reach a verdict on the ADEA claim. After a second trial, a jury faced solely with the ADEA issue found that while age was a substantial or motivating factor in the employer's decision, plaintiff would have been terminated anyway.

On appeal, the Eleventh Circuit affirmed, crediting the employer's rationale for dismissing plaintiff. In particular, the employer claimed that it consolidated plaintiff's department for economic reasons, and decided to let plaintiff go based on her performance and her score under a 'layoff determination comparison matrix.' The court held that the employer's explanation was sufficient, and that the termination could be attributed to the matrix score irrespective of age. Further, the court upheld the jury's decision on the EPA claim, stating that the employer had 'presented testimony that its salary retention practice had been uniformly applied to both men and women for decades and that no one was aware of any deviations from this practice,' which plaintiff failed to rebut.

Can an Employee's Journal Prove a Hostile Work Environment?

The Third Circuit has held that entries in an employee's journal supported a jury's finding of a hostile work environment under Title VII, and an award of $70,000. Reynolds v. USX Corp., 2003 WL 146367 (3^rd Cir. Jan. 15).

Plaintiff was employed by the employer from 1990 to 1998, and kept a journal from January 1995 until her last day on the job. From 1995 to 1998, plaintiff filed three complaints with the EEOC and the Pennsylvania Human Rights Commission claiming race and sex discrimination. Subsequently, plaintiff brought suit under Title VII and the Pennsylvania Human Rights Act, alleging race and sex discrimination, retaliation, and a hostile work environment. A jury found for the employer on the discrimination and retaliation causes of action, but ruled in favor of plaintiff on the hostile work environment claim. The jury awarded plaintiff $70,000 plus attorneys' fees.

On appeal, the Third Circuit affirmed the finding of a hostile work environment. Plaintiff's journal entries reflected that she had been called a 'bitch' at least six times by team leaders in her work area. Plaintiff presented evidence that she was the object of considerable invective, including the 'N word, the C word [and] the B word.' The Court held that plaintiff demonstrated that she had been disciplined and denied opportunities because of a 'racial or gender animus.'

Failure To Accommodate Religious Observances Is Not A Continuing Violation Under Title VII

The Second Circuit has held that an employer's failure to accommodate an employee's religious observance obligations does not amount to a continuing violation under Title VII. Elmenayer v. ABF Freight Sys. Inc., 2003 WL 149662 (2d Cir. Jan. 22).

Plaintiff Amr Elmenayer is a Muslim truck driver employed by ABF Freight Systems Inc. In March 1996, he was assigned to work at ABF's Brooklyn terminal. This assignment made it difficult for plaintiff to attend prayer services between noon and 2 p.m. every Friday. Prior to this assignment, plaintiff had been on a route that enabled him to perform his driving duties and attend the prayer services. When re-assigned, plaintiff was away from the Brooklyn terminal for two and a half hours because he attended a service on his lunch break. On his return to work, he was suspended for two weeks without pay. The employer's rules, and the collective bargaining agreement, restrict lunch breaks to one hour. When suspended, plaintiff made a written request for an accommodation, which was to combine his coffee and lunch breaks on Fridays, and to come in early or stay later on Fridays if necessary. The supervisor denied this request, but proposed that plaintiff bid for a night-shift schedule, or attend the prayer services within the one-hour limit. Plaintiff never bid for the night-shift.

In October 1997, plaintiff was accused of failing to report an accident involving a truck at the terminal that was missing a door, and was suspended for 2 days. Plaintiff subsequently filed a charge with the EEOC, claiming religious discrimination in violation of Title VII (based upon his employer's failure to accommodate his request), and eventually filed suit. The district court granted summary judgment to the employer, on the grounds that Plaintiff's claim was time-barred.

The Second Circuit affirmed. The rejection of plaintiff's accommodation request was held to be a discrete act 'that must be the subject of a complaint with the EEOC within 300 days.' In other words, the rejection of the accommodation request was a single, completed action when it was taken, and not a continuing violation. The Court held this was the case even if the effect of the employer's rejection continued to be felt by plaintiff for as long as he was employed.

This column was written by Jason S. Aschenbrand is an associate with Winston & Strawn, New York.

In 1975, Gannett Co. established a retirement plan for its workers. He plan did not expressly include or exclude independent contractors. A year later, the plan was amended to specifically exclude independent contractors. In 1988, certain of Gannett Co.'s newspaper haulers issued a letter to Gannett claiming that they should be treated as employees rather than independent contractors, and cited as the basis for this argument a Third Circuit decision from 1971 holding that they were 'common law employees' under the NLRA. Gannett Co. responded by informing the newspaper haulers that it considered them to be independent contractors. In 1999, the newspaper haulers sued Gannett Co, claiming that it had breached its fiduciary duties under ERISA by considering them to be independent contractors. The district court dismissed the lawsuit as barred by the 3-year statute of limitations of ERISA ' 413.

On appeal, the Third Circuit affirmed, noting that Gannett Co.'s response to the haulers in 1988 caused the statute of limitations to begin to run. Further, the Court held that the statute of limitations was not tolled under a continuing violation theory, because the denial of benefits in 1988 by Gannett Co. was sufficiently clear to initiate the statute of limitations.The Eleventh Circuit has held that an employee whose age was a substantial or motivating factor in her termination did not have a claim under the ADEA, as she would have been terminated in any event. Steger v. General Electric Co., 2003 WL 132976 (11th Cir. Jan. 17).

Plaintiff had worked for the employer for 25 years in its collections department. In 1995, she was terminated during a RIF. Plaintiff brought suit under the EPA and the ADEA. Apparently, the employer delayed plaintiff's termination for a month to allow her to qualify for a special early retirement option. Prior to plaintiff's becoming eligible, she provided a copy of her birth certificate to her employer, which showed she was 5 years older than she had stated on her application for employment, and that she was entitled to normal retirement and a lump sum payment of $17,000. The trial judge barred the employer from presenting evidence that plaintiff lied on her application, but allowed defendant's argument that it would have made the 'same decision' under any circumstances. A jury found in favor of the employer on the EPA claim, but could not reach a verdict on the ADEA claim. After a second trial, a jury faced solely with the ADEA issue found that while age was a substantial or motivating factor in the employer's decision, plaintiff would have been terminated anyway.

On appeal, the Eleventh Circuit affirmed, crediting the employer's rationale for dismissing plaintiff. In particular, the employer claimed that it consolidated plaintiff's department for economic reasons, and decided to let plaintiff go based on her performance and her score under a 'layoff determination comparison matrix.' The court held that the employer's explanation was sufficient, and that the termination could be attributed to the matrix score irrespective of age. Further, the court upheld the jury's decision on the EPA claim, stating that the employer had 'presented testimony that its salary retention practice had been uniformly applied to both men and women for decades and that no one was aware of any deviations from this practice,' which plaintiff failed to rebut.

Plaintiff was employed by the employer from 1990 to 1998, and kept a journal from January 1995 until her last day on the job. From 1995 to 1998, plaintiff filed three complaints with the EEOC and the Pennsylvania Human Rights Commission claiming race and sex discrimination. Subsequently, plaintiff brought suit under Title VII and the Pennsylvania Human Rights Act, alleging race and sex discrimination, retaliation, and a hostile work environment. A jury found for the employer on the discrimination and retaliation causes of action, but ruled in favor of plaintiff on the hostile work environment claim. The jury awarded plaintiff $70,000 plus attorneys' fees.

On appeal, the Third Circuit affirmed the finding of a hostile work environment. Plaintiff's journal entries reflected that she had been called a 'bitch' at least six times by team leaders in her work area. Plaintiff presented evidence that she was the object of considerable invective, including the 'N word, the C word [and] the B word.' The Court held that plaintiff demonstrated that she had been disciplined and denied opportunities because of a 'racial or gender animus.'

This month's National Litigation Hotline was written by Jason S. Aschenbrand, an associate with Winston & Strawn, New York.

The Eighth Circuit recently held that an employer that granted personal rather than FMLA leave to an employee to undergo gender-reassignment surgery did not violate the FMLA. Sanders v. May Dep't Stores Co., 2003 WL 61112 (8th Cir. Jan. 9).

Plaintiff informed his employer in Spring 1998 that he suffered from gender dysphoria, and that he intended to undergo gender reassignment surgery in June. For 4 to 6 weeks before the surgery, plaintiff intended to live as a woman. Plaintiff resigned before the surgery, even after the employer expressed concern over his resignation, given that he had worked there for 13 years. The employer informed plaintiff that he was not entitled to severance pay. Because the departure was voluntary, but that he might be able to qualify for FMLA leave. However, to do so, the plaintiff would have to submit medical certification of the need for leave. Plaintiff declined to submit this certification, citing confidentiality concerns. The employer instead permitted the plaintiff to take 13 weeks of personal leave. Under this policy, the employer was not obligated to hold plaintiff's position open. After undergoing the surgery, the now-female plaintiff sought her previous job, which the employer had not held open. The employer rehired the plaintiff as a senior financial analyst, but terminated her in April 1999 for poor performance.

Plaintiff brought suit under the FMLA, and a jury found in favor of the employer. On appeal, the Eighth Circuit rejected plaintiff's argument that the employer violated the FMLA by awarding her personal leave. The court found that the facts of the case were clear that plaintiff did not pursue FMLA leave because of her confidentiality concerns. The fact that the employer suggested FMLA leave as a possible option for plaintiff did not vitiate plaintiff's express dismissal of that option, and did not obligate the employer to ignore her resignation. Further, the court stated that the grant of personal leave was not inconsistent with plaintiff's resignation. Finally, the court held that the employer had satisfied its notice obligations to the employee, given that it informed plaintiff of her rights, posted a notice of FMLA rights in its human resources offices, and had sent plaintiff a memorandum describing the FMLA's protections and her rights. Notably, the court did not address whether sexual reassignment surgery qualified as a serious health condition under the FMLA, as it was never raised as an issue.

Statute of Limitations Affects ERISA Claim

The Third Circuit has determined that current and former newspaper haulers are barred by the statute of limitations from claiming that Gannett Co. breached ERISA by improperly classifying them as independent contractors. Tinley v. Gannett Co., 2003 WL 68076 (3^rd Cir. Jan. 9).

In 1975, Gannett Co. established a retirement plan for its workers. He plan did not expressly include or exclude independent contractors. A year later, the plan was amended to specifically exclude independent contractors. In 1988, certain of Gannett Co.'s newspaper haulers issued a letter to Gannett claiming that they should be treated as employees rather than independent contractors, and cited as the basis for this argument a Third Circuit decision from 1971 holding that they were 'common law employees' under the NLRA. Gannett Co. responded by informing the newspaper haulers that it considered them to be independent contractors. In 1999, the newspaper haulers sued Gannett Co, claiming that it had breached its fiduciary duties under ERISA by considering them to be independent contractors. The district court dismissed the lawsuit as barred by the 3-year statute of limitations of ERISA ' 413.

On appeal, the Third Circuit affirmed, noting that Gannett Co.'s response to the haulers in 1988 caused the statute of limitations to begin to run. Further, the Court held that the statute of limitations was not tolled under a continuing violation theory, because the denial of benefits in 1988 by Gannett Co. was sufficiently clear to initiate the statute of limitations.

Employee Claiming ADEA Violation Has No Case, Says Court

The Eleventh Circuit has held that an employee whose age was a substantial or motivating factor in her termination did not have a claim under the ADEA, as she would have been terminated in any event. Steger v. General Electric Co., 2003 WL 132976 (11^th Cir. Jan. 17).

Plaintiff had worked for the employer for 25 years in its collections department. In 1995, she was terminated during a RIF. Plaintiff brought suit under the EPA and the ADEA. Apparently, the employer delayed plaintiff's termination for a month to allow her to qualify for a special early retirement option. Prior to plaintiff's becoming eligible, she provided a copy of her birth certificate to her employer, which showed she was 5 years older than she had stated on her application for employment, and that she was entitled to normal retirement and a lump sum payment of $17,000. The trial judge barred the employer from presenting evidence that plaintiff lied on her application, but allowed defendant's argument that it would have made the 'same decision' under any circumstances. A jury found in favor of the employer on the EPA claim, but could not reach a verdict on the ADEA claim. After a second trial, a jury faced solely with the ADEA issue found that while age was a substantial or motivating factor in the employer's decision, plaintiff would have been terminated anyway.

On appeal, the Eleventh Circuit affirmed, crediting the employer's rationale for dismissing plaintiff. In particular, the employer claimed that it consolidated plaintiff's department for economic reasons, and decided to let plaintiff go based on her performance and her score under a 'layoff determination comparison matrix.' The court held that the employer's explanation was sufficient, and that the termination could be attributed to the matrix score irrespective of age. Further, the court upheld the jury's decision on the EPA claim, stating that the employer had 'presented testimony that its salary retention practice had been uniformly applied to both men and women for decades and that no one was aware of any deviations from this practice,' which plaintiff failed to rebut.

Can an Employee's Journal Prove a Hostile Work Environment?

The Third Circuit has held that entries in an employee's journal supported a jury's finding of a hostile work environment under Title VII, and an award of $70,000. Reynolds v. USX Corp., 2003 WL 146367 (3^rd Cir. Jan. 15).

Plaintiff was employed by the employer from 1990 to 1998, and kept a journal from January 1995 until her last day on the job. From 1995 to 1998, plaintiff filed three complaints with the EEOC and the Pennsylvania Human Rights Commission claiming race and sex discrimination. Subsequently, plaintiff brought suit under Title VII and the Pennsylvania Human Rights Act, alleging race and sex discrimination, retaliation, and a hostile work environment. A jury found for the employer on the discrimination and retaliation causes of action, but ruled in favor of plaintiff on the hostile work environment claim. The jury awarded plaintiff $70,000 plus attorneys' fees.

On appeal, the Third Circuit affirmed the finding of a hostile work environment. Plaintiff's journal entries reflected that she had been called a 'bitch' at least six times by team leaders in her work area. Plaintiff presented evidence that she was the object of considerable invective, including the 'N word, the C word [and] the B word.' The Court held that plaintiff demonstrated that she had been disciplined and denied opportunities because of a 'racial or gender animus.'

Failure To Accommodate Religious Observances Is Not A Continuing Violation Under Title VII

The Second Circuit has held that an employer's failure to accommodate an employee's religious observance obligations does not amount to a continuing violation under Title VII. Elmenayer v. ABF Freight Sys. Inc., 2003 WL 149662 (2d Cir. Jan. 22).

Plaintiff Amr Elmenayer is a Muslim truck driver employed by ABF Freight Systems Inc. In March 1996, he was assigned to work at ABF's Brooklyn terminal. This assignment made it difficult for plaintiff to attend prayer services between noon and 2 p.m. every Friday. Prior to this assignment, plaintiff had been on a route that enabled him to perform his driving duties and attend the prayer services. When re-assigned, plaintiff was away from the Brooklyn terminal for two and a half hours because he attended a service on his lunch break. On his return to work, he was suspended for two weeks without pay. The employer's rules, and the collective bargaining agreement, restrict lunch breaks to one hour. When suspended, plaintiff made a written request for an accommodation, which was to combine his coffee and lunch breaks on Fridays, and to come in early or stay later on Fridays if necessary. The supervisor denied this request, but proposed that plaintiff bid for a night-shift schedule, or attend the prayer services within the one-hour limit. Plaintiff never bid for the night-shift.

In October 1997, plaintiff was accused of failing to report an accident involving a truck at the terminal that was missing a door, and was suspended for 2 days. Plaintiff subsequently filed a charge with the EEOC, claiming religious discrimination in violation of Title VII (based upon his employer's failure to accommodate his request), and eventually filed suit. The district court granted summary judgment to the employer, on the grounds that Plaintiff's claim was time-barred.

The Second Circuit affirmed. The rejection of plaintiff's accommodation request was held to be a discrete act 'that must be the subject of a complaint with the EEOC within 300 days.' In other words, the rejection of the accommodation request was a single, completed action when it was taken, and not a continuing violation. The Court held this was the case even if the effect of the employer's rejection continued to be felt by plaintiff for as long as he was employed.

This column was written by Jason S. Aschenbrand is an associate with Winston & Strawn, New York.

In 1975, Gannett Co. established a retirement plan for its workers. He plan did not expressly include or exclude independent contractors. A year later, the plan was amended to specifically exclude independent contractors. In 1988, certain of Gannett Co.'s newspaper haulers issued a letter to Gannett claiming that they should be treated as employees rather than independent contractors, and cited as the basis for this argument a Third Circuit decision from 1971 holding that they were 'common law employees' under the NLRA. Gannett Co. responded by informing the newspaper haulers that it considered them to be independent contractors. In 1999, the newspaper haulers sued Gannett Co, claiming that it had breached its fiduciary duties under ERISA by considering them to be independent contractors. The district court dismissed the lawsuit as barred by the 3-year statute of limitations of ERISA ' 413.

On appeal, the Third Circuit affirmed, noting that Gannett Co.'s response to the haulers in 1988 caused the statute of limitations to begin to run. Further, the Court held that the statute of limitations was not tolled under a continuing violation theory, because the denial of benefits in 1988 by Gannett Co. was sufficiently clear to initiate the statute of limitations.The Eleventh Circuit has held that an employee whose age was a substantial or motivating factor in her termination did not have a claim under the ADEA, as she would have been terminated in any event. Steger v. General Electric Co., 2003 WL 132976 (11th Cir. Jan. 17).

Plaintiff had worked for the employer for 25 years in its collections department. In 1995, she was terminated during a RIF. Plaintiff brought suit under the EPA and the ADEA. Apparently, the employer delayed plaintiff's termination for a month to allow her to qualify for a special early retirement option. Prior to plaintiff's becoming eligible, she provided a copy of her birth certificate to her employer, which showed she was 5 years older than she had stated on her application for employment, and that she was entitled to normal retirement and a lump sum payment of $17,000. The trial judge barred the employer from presenting evidence that plaintiff lied on her application, but allowed defendant's argument that it would have made the 'same decision' under any circumstances. A jury found in favor of the employer on the EPA claim, but could not reach a verdict on the ADEA claim. After a second trial, a jury faced solely with the ADEA issue found that while age was a substantial or motivating factor in the employer's decision, plaintiff would have been terminated anyway.

On appeal, the Eleventh Circuit affirmed, crediting the employer's rationale for dismissing plaintiff. In particular, the employer claimed that it consolidated plaintiff's department for economic reasons, and decided to let plaintiff go based on her performance and her score under a 'layoff determination comparison matrix.' The court held that the employer's explanation was sufficient, and that the termination could be attributed to the matrix score irrespective of age. Further, the court upheld the jury's decision on the EPA claim, stating that the employer had 'presented testimony that its salary retention practice had been uniformly applied to both men and women for decades and that no one was aware of any deviations from this practice,' which plaintiff failed to rebut.

Plaintiff was employed by the employer from 1990 to 1998, and kept a journal from January 1995 until her last day on the job. From 1995 to 1998, plaintiff filed three complaints with the EEOC and the Pennsylvania Human Rights Commission claiming race and sex discrimination. Subsequently, plaintiff brought suit under Title VII and the Pennsylvania Human Rights Act, alleging race and sex discrimination, retaliation, and a hostile work environment. A jury found for the employer on the discrimination and retaliation causes of action, but ruled in favor of plaintiff on the hostile work environment claim. The jury awarded plaintiff $70,000 plus attorneys' fees.

On appeal, the Third Circuit affirmed the finding of a hostile work environment. Plaintiff's journal entries reflected that she had been called a 'bitch' at least six times by team leaders in her work area. Plaintiff presented evidence that she was the object of considerable invective, including the 'N word, the C word [and] the B word.' The Court held that plaintiff demonstrated that she had been disciplined and denied opportunities because of a 'racial or gender animus.'

This month's National Litigation Hotline was written by Jason S. Aschenbrand, an associate with Winston & Strawn, New York.